United States District Court, D. South Carolina
Robert Ivan Cox, Jr. Plaintiff,
Nancy A. Berryhill, Acting, Commissioner of Social Security, Defendant.
Richard Mark Gergel United States District Judge
brought this action pursuant to 42 U.S.C. § 405(g) to
obtain relief from the final decision of the Commissioner of
the Social Security Administration denying him Disability
Insurance Benefits ("DIB"). In accord 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 January 2, 2019,
recommending that the Commissioner's decision be
affirmed. (Dkt. No. 20). Plaintiff filed objections to the R
& R, and the Commissioner filed a reply (Dkt. Nos. 25,
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.
who was 51 years old at the time of his amended onset date of
October 11, 2010 and 53 years old on his date last insured of
December 31, 2012, appeals from the decision of the
Administrative Law Judge ("ALJ") of August 2, 2017
denying his claim of disability. Tr. 352-63. The ALJ found
that although Plaintiff had severe impairments of obesity and
degenerative joint disease of the wrists and right knee, he
retained during the period relevant to his DIB claim the
residual functional capacity ("RFC") to perform
less than the full scope of light work, which included an
accommodation for a sit/stand option at will for 15 minutes
each working hour. Tr. 356-57. A vocational expert testified
that there existed jobs in significant numbers in the
national economy Plaintiff could perform with the ALJ's
RFC. Tr. 382-84. Plaintiff has filed objections to the R
& R, arguing that the record fails to provide substantial
evidence to support Plaintiffs capacity to "stand and
walk for a full work day." (Dkt. No. 25 at 1).
record includes a thorough physical examination of a
consulting orthopaedic surgeon, Dr. Mason Ahearn, conducted
on March 13, 2013. Dr. Ahearn documented Plaintiffs
complaints of right knee pain but noted his gait was normal,
he was able to perform a full squat, and his joint was stable
with a full range of motion. He concluded the Plaintiff was
capable of performing sedentary and light work. Tr. 319-21.
Two chart reviewing physicians also opined that Plaintiff was
capable of performing light work. Tr. 91-93, 104-08.
Plaintiffs treatment notes during the period from Plaintiffs
onset date of October 11, 2010 until his date last insured of
December 31, 2012 focused primarily on issues surrounding
Plaintiffs wrists with only limited treatment or concern
regarding his right knee. For instance, in the treatment note
of July 24, 2012, Plaintiff presents with a swollen knee for
a week, indicating he had injured it while doing some work at
home. Tr. 300. He was given antibiotics to treat a suspected
infectious process. Upon return on August 28, 2012, the
treatment notes "knee better" and responded to the
prescribed antibiotic. Tr. 299.
record further contains a check list report on December 11,
2013 from Dr. Curtis Mull, an orthopaedic surgeon, who
indicated that Plaintiffs capacity to stand was limited to
four hours per work day and Plaintiff could sit for six hours
per work day. He further indicated that Plaintiff would
require the option of sitting every 60 minutes. Tr. 325. The
ALJ gave "little weight" to the limitations on
standing, noting there was no treatment records from Dr.
Mull, and his conclusions were inconsistent with other record
evidence on this issue. The ALJ further noted that the report
was issued nearly a year after the date last insured. Tr.
well-settled that a medical record outside the relevant time
period may be given retrospective consideration if there is
"linkage" to the prior medical condition of the
patient. Bird v. Commissioner of Soc Sec, Admin.,
699 F.3d 337, 340-41 (4th Cir. 2012). Plaintiff had certainly
complained of previous knee pain and challenges with
sustained walking, but Dr. Mull's report suggested a
level of impairment not really consistent with the earlier
medical assessments and treatment. A reasonable inference
from this difference is that Plaintiffs condition worsened
subsequent to his date last insured, which is borne out by
later medical records and Plaintiffs testimony at the 2017
administrative hearing. Tr. 375, 561, 565. Another reasonable
inference is that the body of other evidence in the record
provided a more reliable and accurate account of Plaintiff s
impairments during the relevant time period. In other words,
while there might be different interpretations of the medical
record in this case by fair minded reviewers, there is
substantial evidence to support the findings of the ALJ
regarding Plaintiffs capacity to perform light work.
Magistrate Judge, after writing a careful and detailed
analysis of the relevant record in his R & R, similarly
concluded that there is substantial evidence in the record to
support the findings of the Commissioner. Under such
circumstances, the Court is obligated to affirm the decision
of the Commissioner. Therefore, the Court
ADOPTS the R & R of the Magistrate Judge
(Dkt. No. 20) as the order of this Court and
AFFIRMS the decision of the Commissioner.