United States District Court, D. South Carolina, Greenville Division
Frankie H. Leopard, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Timothy M. Cain United States District Judge.
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”),  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). 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.
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
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. 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.
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).
“[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.
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.
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).
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.
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
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. (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 ...