United States District Court, D. South Carolina
Vanessa P. Foote, Plaintiff,
Nancy Berryhill, Acting, Commissioner of Social Security, Defendant.
Richard Mark Gergel United States District Judge.
brought this action pro se pursuant to 42 U.S.C.
§ 405(g) to obtain relief from the final decision of the
Commissioner of the Social Security Administration denying
her disability insurance benefits ("DIB"). In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 DSC, this matter was referred to a United States
Magistrate Judge for pretrial handling. The Magistrate Judge
issued a Report and Recommendation ("R & R") on
December 10, 2018, recommending that the Commissioner's
decision be reversed and remanded because: (1) the
Administrative Law Judge's failure to consider the
treatment records and findings of the Plaintiffs treating
physician, Dr. I. F. Afulukwe, (2) the erroneous finding of
the Administrative Law Judge ("ALJ") that both
reports by non-examining physicians concluded that Plaintiff
was capable of performing medium work, and (3) the failure of
the ALJ to provide an adequate explanation for the finding
that Plaintiff was capable of performing medium work. (Dkt.
No. 26 at 10-14). The Commissioner has filed a response
indicating that she will not submit objections to the
R&R. (Dkt. No. 29).
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the R & R to which specific
objection has been made, and may accept, reject, or modify,
in whole or in part, the recommendation of the Magistrate
Judge. 28 U.S.C. § 636(b)(1).
role of the federal judiciary in the administrative scheme of
the Social Security Act is a limited one. Section 405(g) of
the Act provides that "[t]he findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive." 42 U.S.C.
§ 405(g). "Substantial evidence has been defined
innumerable times as more than a scintilla, but less than
preponderance." Thomas v. Celebrezze, 331 F.2d
541, 543 (4th Cir. 1964). This standard precludes de
novo review of factual circumstances that substitutes
the Court's findings for those of the Commissioner.
Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).
the federal court's review role is limited, "it does
not follow, however, that the findings of the administrative
agency are mechanically accepted. The statutorily granted
right of review contemplates more than an uncritical rubber
stamping of the administrative action." Flack v.
Cohen, 413 F.2d 278, 279 (4th Cir. 1969). "[T]he
courts must not abdicate their responsibility to give careful
scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner's] findings."
Vitek, 438 F.2d at 1157-58.
applied for DIB for the period August 29, 2013, to her date
last insured of December 31, 2014. She was fifty four and
fifty five years of age during this period of time. The
record reflects that Plaintiff repeatedly sought medical
treatment for shortness of breath, which produced fatigue and
difficulty walking for any sustained period of time. Tr.
291-96, 320-21, 327-332, 418-420. Various physicians appeared
mystified by Plaintiffs shortness of breath but were unable
to determine a definitive etiology for her condition. Tr.
293, 321, 329, 420.
2015, Plaintiff came under the care of Dr. I. F. Afulukwe,
who documented Plaintiffs shortness of breath (present both
when sleeping and walking), exercise intolerance, and
coughing up mucus. Tr. 473-4. Dr. Afulukwe diagnosed
Plaintiff with asthma, allergic rhinitis, and possibly
obstructive sleep apnea. Tr. 475. Dr. Afulukwe was unable to
perform the full range of diagnostic tests because Plaintiff
lacked health insurance and could not otherwise pay for the
tests. In a November 2015 office visit, Dr. Afulukwe
documented that Plaintiff had "marked" shortness of
breath that rendered her unable to climb a flight of stairs
or walk on level ground for a sustained period. Tr. 471. He
concluded that "as a result of her respiratory
difficulties and fatigue, she has not been able to
to Dr. Afulukwe's involvement in Plaintiffs care, two
non-examining and non-treating physicians made chart reviews
of the claimant's medical records. Dr. Elva Stinson
referenced the various inconclusive medical evaluations of
Plaintiff and noted that she appeared to have shortness of
breath "of unclear etiology." Tr. 90. Dr. Stinson
indicated that Plaintiff was capable of performing light
work, which included an opinion that she could stand and/or
walk six hours in an eight hour day. Tr. 89. She did not
provide any documentation to support this conclusion. Another
chart reviewer, Dr. Lina Caldwell, concluded that Plaintiff
could perform medium work, which included lifting twenty five
pounds regularly and fifty pounds occasionally and standing
and walking six hours in an eight hour day. Again, there was
no documentation to support these findings.
conducted an administrative hearing in this matter and issued
a decision on November 30, 2016, concluding that Plaintiff
could perform medium work and return to her past relevant
work as a vacuum metalizer operator. In reaching that
conclusion, the ALJ inaccurately stated that both chart
reviewers (Stinson and Caldwell) had determined that
Plaintiff could perform medium work and that no functional
capacities evaluation had been completed by any treating
physician. Tr. 41. No. mention was made of Dr. Afulukwe's
findings or diagnoses.
Magistrate Judge, faced with these multiple deficiencies in
the ALJ's decision, appropriately recommended the
decision of the Commissioner be reversed and the matter
remanded to the agency for further processing. (Dkt. No. 26).
The Court finds that the Magistrate Judge ably addressed the
factual and legal issues in this appeal and adopts the R
& R as the order of the Court, with a few additional
findings and conclusions.
Plaintiff, proceeding pro se, submitted to the Court
a statement from Dr. Afulukwe dated December 18, 2018,
indicating that he continued to care for and manage the
medical treatment of Plaintiff. He described her condition as
"debilitated and unable to engage in any type of gainful
employment. She does not have the physical or mental capacity
to do any work at this time, and into the foreseeable
future." He described her condition as "potentially
life threatening." He invited ...