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Leopard v. Berryhill

United States District Court, D. South Carolina, Greenville Division

January 18, 2019

Frankie H. Leopard, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          Timothy M. Cain United States District Judge.

         The plaintiff, Frankie H. Leopard (“Leopard”), brought this action pursuant to the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), [1] denying his claim for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before this court is the magistrate judge's Report and Recommendation (“Report”), recommending that the court affirm the Commissioner's decision. (ECF No. 24).[2] In the Report, the magistrate judge sets forth the relevant facts and legal standards, which are incorporated herein by reference. Leopard filed objections to the Report (ECF No. 26), and the Commissioner responded to those objections (ECF No. 30). Accordingly, this matter is now ripe for review.


         On May 30, 2014, Leopard applied for DIB and SSI, alleging a disability onset date of July 20, 2011. (ECF No. 10-2 at 19). These claims were denied both initially and on reconsideration by the Social Security Administration (“SSA”). (ECF No. 10-3). Leopard then requested a hearing before an Administrative Law Judge (“ALJ”), and on September 28, 2016, the ALJ conducted a hearing on Leopard's claims for DIB and SSI. (ECF No. 10-2). Leopard was represented by counsel at the hearing. On December 6, 2016, the ALJ issued an opinion finding that Leopard was not disabled. (ECF No. 10-2 at 19-39).

         In her decision, the ALJ found Leopard met the insured status requirements under the Social Security Act through December 31, 2016, and that Leopard had not engaged in substantial gainful activity since July 20, 2011, the alleged onset date of disability. (ECF No. 10-2 at 21). The ALJ further found that Leopard suffered from the following severe impairments: degenerative disc disease of the cervical spine, lumbago, degenerative joint disease of the right shoulder, right wrist and right ulnar neuropathy, migraine headaches, depression, anxiety, and borderline intellectual functioning/neurocognitive disorder. Id. In reviewing all of Leopard's impairments, the ALJ concluded that he did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. at 22. Additionally, the ALJ calculated Leopard's residual functional capacity (“RFC”) and determined that he could perform light work with various limitations.[3] Due to these limitations, the ALJ determined that Leopard is unable to perform his past relevant work of being a driver/sales rout worker, flatbed truck driver, and warehouse worker. (ECF No. 10-2 at 32-33). However, the ALJ determined that based on Leopard's age, education, work experience, and RFC calculation, there were “jobs that existed in significant numbers in the national economy that [he] can perform.” Id. at 33. Accordingly, the ALJ determined that Leopard was not disabled as defined in the Social Security Act. Id. at 34. Leopard subsequently appealed to the Appeals Council, and the Appeals Council denied Leopard's request for review of the ALJ's decision. Id. at 2-5. Therefore, the ALJ's decision became the final decision of the Commissioner. This action followed.


         The federal judiciary has a limited role in the administrative scheme established by the SSA. Section 405(g) of the Act provides, “the 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 . . . as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

         However, “[f]rom this it does not follow . . . that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Rather, “the 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, and that this conclusion is rational.” Vitek, 438 F.2d at 1157-58.


         The magistrate judge filed a Report, recommending that the decision of the Commissioner be affirmed. (ECF No. 24). Leopard timely filed objections to the Report. (ECF No. 26). The Commissioner replied to these objections and further argued that Leopard's objections were simply a reiteration of arguments already before the magistrate judge. (ECF No. 30). The matter is now ripe for review.

         The court recognizes that Leopard's objections appear to largely be reiterations of the issues raised in his brief (ECF No. 19), and to extent that the objections are simply restatements of arguments already fully presented to the magistrate judge for review, they do not constitute specific objections to the Report. See Nichols v. Colvin, No. 2:14-cv-50, 2015 UL 1185894, at *8 (E.D. Va. Mar. 13, 2015) (finding that the rehashing of arguments raised to the magistrate judge does not comply with the requirement to file specific objections); Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004) (“An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as the term is used in this context.”). However, Leopard's objections do contain several specific reasons that he disagrees with the magistrate judge's assessment of those claims. Accordingly, the court will consider the following objections: (1) that the magistrate judge erred in finding that the ALJ properly considered the medical opinion of Dr. Scott; (2) that the magistrate judge erred in finding that the ALJ properly considered the medical opinion of Dr. Saad; and (3) that the magistrate judge erred in finding that the ALJ properly considered Leopard's subjective symptoms. (ECF No. 26).

         In his Report, the magistrate judge laid out the standard that an ALJ must follow in considering a treating physician's opinion, which the court incorporates herein. (ECF No. 24 at 17). The magistrate judge concluded that the ALJ properly considered the medical opinions of Dr. Scott and Dr. Saad based on this standard and explained her reasoning for assigning those opinions only partial weight. (ECF No. 24 at 18-19, 22-23). As the ALJ and the magistrate judge both acknowledged, Dr. Scott, Leopard's treating neurologist, opined regarding Leopard's limitations and disability. (ECF Nos. 10-2 at 31, 24 at 18). The ALJ considered Dr. Scott's opinion, and in light of the other evidence in the record, gave such opinion partial weight. (ECF No. 10-2 at 31). In determining that Dr. Scott's opinion should only be given partial weight, the ALJ noted that she gave weight to the functional limitations described in Dr. Scott's opinion and incorporated them generally into the RFC calculation. Id. However, the ALJ found that Dr. Scott's opinion that Leopard would “be distracted or unable to complete tasks as much as 15 to 20 percent ‘of any given workday'” was inconsistent with the medical record. Id.

         Leopard objects to the magistrate judge's determination that the ALJ properly considered Dr. Scott's medical opinion, arguing specifically that symptoms being “relatively well controlled” does not mean that those symptoms were “cured and resolved.” (ECF No. 26 at 2). Leopard contends that Dr. Scott's opinion that Leopard would be off task fifteen to twenty percent of the workday was reasonable given the “incompletely controlled symptoms” and the side effects from the medication, and that, therefore, the opinion should have been given more weight. Id.

         The ALJ stated that the reason she gave only partial weight to Dr. Scott's opinion was because the opinion was inconsistent with the other evidence in Leopard's medical record. (ECF No. 10-2 at 31). As the Fourth Circuit has held, “if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight.” Craig v. Chater, 76 F.3d 585 (4th Cir. 1996). In reviewing the evidence, the ALJ noted that Leopard's treatment history was conservative and that his symptoms were “relatively controlled with medications.” (ECF No. 10-2 at 31). In fact, Dr. Scott's own reports state that “[f]or the most part [Leopard's] symptoms are controlled conservatively with hydrocodone and Felxeril” and that these medications work “pretty well.” (ECF No. 10-13 at 3-4). Dr. Scott wrote this report the same day that he issued the opinion stating that Leopard was disabled. Compare Id. at 3 - 4 with Id. at 24. The Fourth Circuit has specifically stated that “[i]f a symptom can be reasonably controlled by medication or treatment, it is not disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). However, Leopard contends that these untreated symptoms, mixed with Leopard's side effects from the medications, support Dr. Scott's opinion.[4] (ECF No. 26 at 2). Furthermore, when asked at his hearing if he had any side effects from the medication, Leopard first stated that he had no side effects from his medications. (ECF No. 10-2 at ...

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