United States District Court, D. South Carolina, Beaufort Division
OPINION AND ORDER
Margaret B. Seymour Senior United States District Judge.
18, 2017, Patricia Patterson (“Plaintiff”),
proceeding pro se, filed the within action pursuant to 42
U.S.C. § 405(g), seeking judicial review of a final
decision of Defendant Acting Commissioner of Social Security
(the “Commissioner”) denying in part her claim
for Disability Insurance Benefits (“DIB”).
Relevant Facts and Procedural History
is a sixty-year-old female. R. 138. Plaintiff has a college
education and previously worked as a parts sales manager at
AutoZone. R. 100. Plaintiff has not worked since November of
2005, around the time of her alleged disability onset date.
Id. When working, Plaintiff performed managerial
tasks, as well as manual labor involving lifting certain
heavy automobile parts - batteries, engines, and
alleges disability stemming from a variety of ailments.
Plaintiff alleges that her health problems began after she
was a living kidney donor in 1995. R. 101. Then, in 2004,
Plaintiff suffered a strained lumbar hernia. Id.
Upon returning to work in 2005, Plaintiff re-injured her
strained hernia, which Plaintiff alleges rendered her unable
to work. Id. Since her hernia injury, Plaintiff
alleges further injuries and conditions, including anxiety;
glaucoma, which Plaintiff alleges renders her unable to read;
chronic bladder disease, which Plaintiff alleges occurs every
3-4 months and results in bathroom trips every 45-60 minutes;
“bone disease”; high blood pressure; and frequent
urinary tract infections and bouts of diarrhea as a side
effect of her medicine. R.103. Plaintiff also alleges that
she is subject to a ten-pound lifting restriction. R. 108.
filed her DIB claim on December 1, 2011 alleging
disability beginning on November 14, 2005. R. 570.
Plaintiff's claims were denied both initially and upon
reconsideration. A hearing was held before an Administrative
Law Judge (“ALJ”) on January 3, 2014, at which
Plaintiff and a vocational expert testified. R. 96-124. On
January 14, 2014, the ALJ issued a partially favorable
decision, awarding Plaintiff benefits beginning on April 18,
2013, citing Medical-Vocational Guidelines. R. 183-91. The
ALJ determined that since the amended onset date of March 26,
2009, Plaintiff suffered from “degenerative back
disorder and [a] history of cataracts.” R. 185. The ALJ
nonetheless indicated that “the claimant has not had an
impairment or combination of impairments that meets or
medically equals” statutorily defined impairments. R.
186. The ALJ found that Plaintiff had “the residual
functional capacity to perform light work.” R. 187. In
reaching his determination that Plaintiff could perform light
work, the ALJ stated that “the claimant's medically
determinable impairments could not reasonably be expected to
cause” the symptoms Plaintiff alleges. Id.
Thus, in consultation with a vocational expert, the ALJ
determined that there were numerous jobs that Plaintiff could
still perform prior to reaching an “advanced
age.” R. 189. However, as soon as Plaintiff reached an
“advanced age” on April 18, 2013, “there
[would be] no jobs. . . in significant numbers in the
national economy that the [Plaintiff] could perform”
based on her impairments. R. 190. The ALJ found that
Plaintiff became disabled on April 18, 2013.
proceeding without counsel, filed an appeal of the ALJ's
determination, again citing the November 14, 2005 onset date
and requesting that the ALJ consider additional medical
evidence. R. 311-317. The Appeals Council remanded to the ALJ
for hearings on January 29, 2015 and April 26, 2016. On
August 8, 2016, the ALJ once again issued a partially
favorable decision, determining that Plaintiff was not
disabled prior to April 17, 2013, but was disabled after that
date. R. 13-38. In his decision, the ALJ first noted that the
issue of disability between November 14, 2005, and March 25,
2009 had already been decided, and any further discussion of
such disability would be barred by res judicata. R. 17. The
relevant determination would be if Plaintiff was disabled
from March 26, 2009 onward. Id. The ALJ determined
that Plaintiff had degenerative disc disease, degenerative
joint disease, tendinopathy, status post right nephrectomy,
and status post hernia repair, which constitute severe
impairments. R. 23. However, the ALJ concluded that
Plaintiff's other alleged ailments, including cystitis,
visual disorders, diabetes, gastroesophageal reflux disease,
hyperlipidemia, hypertension, and an anxiety disorder, were
“non-severe” within the meaning of the
Id. In fact, the ALJ noted that medical records
indicated that Plaintiff did not mention many of her
impairments until 2011 or 2012, and often received “no
diagnosis” from doctors. R. 24-26. The ALJ also
indicated that he gave little weight to the testimony of a
chiropractor and certain lay individuals, including
Plaintiff's son and her friends. R.33-35. The ALJ once
again determined that Plaintiff only became disabled upon her
becoming of “advanced age” and awarded benefits
beginning on April 17, 2013. R. 37. Plaintiff requested
review of the ALJ's second decision, again arguing that
she was disabled beginning on November 14, 2005. The Appeals
Council denied Plaintiff's request on May 18, 2015,
making the ALJ's decision the final determination of the
Commissioner. R. 1-4.
Plaintiff's amended complaint, filed on August 4, 2017,
Plaintiff alleges that the ALJ's decision is not
supported by substantial evidence, and as such, the case
should be reversed with an award of benefits beginning on
November 14, 2005. ECF No. 13. On January 16, 2018, Plaintiff
filed her brief challenging the Commissioner's
determination on nine grounds: (1) “res judicata doctrine
does not apply to this claim”; (2) “AOD was
amended unauthorized”; (3) and (4) “corroboration
of evidence and fraudulently discredited degree of
pain”; (5) fraudulently denied visual disorders”;
(6) and (9) “violation of SSR 06-3P”; (7)
“fraudulently denied interstitial cystitis”; and
(10) “failure to apply sedentary restrictions to avoid
reopening claims.” ECF No. 32. Throughout
Plaintiff's brief, Plaintiff makes reference to
provisions contained within the Social Security
Administration's Hearings, Appeals and Litigation Law
Manual (HALLEX). On February 26, 2018, the Commissioner filed
a brief in opposition. ECF No. 39.
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02
(D.S.C.), this matter was referred to United States
Magistrate Judge Bristow Marchant for a Report and
Recommendation (“Report”). On November 6, 2018,
the Magistrate Judge filed his Report recommending that the
Commissioner's decision be affirmed. ECF No. 57. The
Magistrate Judge determined that Plaintiff sought the
following: a determination that res judicata did not bar her
from re-litigating her prior disability application; a
determination that her disability onset date should be
November 14, 2005; a determination that she was denied her
right to counsel; a determination that the ALJ performed an
improper Step Two analysis; a determination that the ALJ
failed to find that Plaintiff qualified for a listing; a
determination that the ALJ failed in evaluating
Plaintiff's credibility, the opinions of record, and in
determining Plaintiff's RCF; and an award of monetary
damages for alleged torts and Constitutional violations.
Id. at 13-14.
Report, the Magistrate Judge first found that res judicata
barred evaluating Plaintiff's claims of disability from
November 14, 2005 to March 25, 2009. Id. at 14.
Next, the Magistrate Judge determined that HALLEX procedures
are not binding on courts. Id. at 15. Further, the
Magistrate Judge found that Plaintiff was not deprived of
counsel at her hearing, as she waived her right to counsel at
her hearing after an extensive discussion Id. at 17.
The Magistrate Judge stated that “Plaintiff was
provided with information about her right to representation
on multiple occasions.” Id. at 19. The
Magistrate Judge determined that the ALJ's inquiry was
adequate and that Plaintiff received a full and fair hearing.
Id. at 15. Next, the Magistrate Judge found
“no reversible error” in the ALJ's two-step
analysis, upholding the ALJ's decision about
Plaintiff's alleged severe impairments. Id. at
20. The Magistrate Judge concluded that the evidence in the
record supported the ALJ's conclusion that
Plaintiff's impairments were not severe before April of
2013. Id. at 22. Additionally, the Magistrate Judge
found that the ALJ's Step Three analysis, which
determined that Plaintiff did not meet the criteria for
listed impairments, was valid. Id. at 23.
Magistrate Judge found that “[e]vidence from sources
such as [the chiropractor] may be used ‘to show the
severity of [a claimant's] impairment(s) and how it
affects [his or her] ability to work.'” ECF No. 57
at 29-30(quoting 20 C.F.R. § 404.1513(d)). The
Magistrate Judge also found that “[a]t the time of the
ALJ's decision. . . medical and psychological providers
who are not acceptable providers included
chiropractors.” Id. Further, because the
chiropractor examined Plaintiff more than five years after
Plaintiff's alleged onset date, the Magistrate Judge
found that the ALJ applied the appropriate weight to the
chiropractor's opinion. Id. at 31. The
Magistrate Judge also noted that “[t]he weight to be
given to evidence from other sources ‘will vary
according to the particular facts of the case, the source of
the opinion, including that source's qualifications, the
issue(s) that the opinion is about, and many other factors .
. . .'” Id. (quoting Social Security
Ruling 06-03p). The Magistrate Judge determined that the ALJ
was correct to give little weight to layperson testimony,
finding that while an ALJ must consider lay evidence, it is
appropriate to give it little weight if such testimony merely
repeats the allegations of a plaintiff's own testimony or
proves to be inconsistent with expert testimony. Id.
Magistrate Judge found Plaintiff's arguments concerning
her subjective complaints to be without merit. Id.
at 37. Next, the Magistrate Judge agreed with the ALJ that
Plaintiff had the ability to perform light work. Id.
at 38. Further, the Magistrate Judge found that the ALJ's
step five determinations were correct. In addition, the
Magistrate Judge determined that the court lacks subject
matter jurisdiction to consider any of Plaintiff's tort
claims. Id. at 42. In conclusion, the Magistrate
Judge found that there was substantial evidence to support
the ALJ's decision. Id. at 43. On November 26,
2018, Plaintiff filed objections to the Magistrate
Judge's Report and Recommendation. ECF No. 60.
matter is now before the court for review of the Magistrate
Judge's Report. The court is charged with making a de
novo determination of any portions of the Report to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or may recommit the matter to the Magistrate
Judge with instructions. 28. U.S.C. § 636(b).
Standard of Review
should review de novo only those portions of a Magistrate
Judge's Report to which specific objections are filed and
reviews those portions to which only “general and
conclusory” objections have been made - for clear
error. Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310 (4th Cir. 2005); Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983); Opriano v. Johnson,
687 F.2d 44, 77 (4th Cir. 1982).
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one.
Section 205(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. § 4059(g). “Substantial
evidence has been defined innumerable times 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). The court must uphold the
Commissioner's decision as long as it is supported by
substantial evidence. Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972). “From this it does not
follow, however, that the findings of the administrative
agency are to be mechanically accepted. The statutorily
granted right of review contemplates more than 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, and that [her] conclusion is rational.”
Vitek, 438 F.2d at 1157-58.
Commissioner's findings of fact are not binding if they
were based upon the application of an improper legal
standard. Coffman v. Bowen, 829 F.2d 514, 517 (4th
Cir. 1987). However, the Commissioner's denial of
benefits shall be reversed only if no reasonable mind could
accept the record as adequate to support that determination.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
individual is eligible for DIB benefits under Title II of the
Social Security Act (“Act”), 42 U.S.C.
§§ 401-33, if he or she is insured, has not
attained retirement age, has filed an application for DIB,
and is under a disability as defined in the Act. 42 U.S.C.
§ 423(a)(1). Under Title XVI of the Act, 42 U.S.C.
§§ 1381-3(c), benefits are available to an
individual who is financially eligible, files an application,
and is disabled as defined in the Act. 42 U.S.C. § 1382.
An individual is determined to be under a disability only if
his “physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy . . .
.” 42 U.S.C. § 423(d)(2)(A). The disabling
impairment must last, or be expected to last, for at least
twelve consecutive months. See Barnhart v. Walton,
535 U.S. 212, 214-15 (2002). Additionally, for DIB benefits,
the claimant must prove he was disabled prior to his date
last insured. Bird v. Commissioner, 699 F.3d 337,
340 (4th Cir. 2012) (citing 42 U.S.C. § 423(a)(1)(A),
(c)(1); 20 C.F.R. §§ 404.101(a), 404.131(a)).
Commissioner has developed the following five-step evaluation
process for determining whether a claimant is disabled under
the Act: (1) whether the claimant engaged in substantial
gainful activity; (2) whether the claimant has a severe
medically determinable impairment; (3) whether the impairment
meets or equals the severity of an impairment included in the
Administration's Official Listings of Impairments found
at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) whether the
impairment prevents the claimant from performing past
relevant work; and (5) whether the impairment prevents the
claimant from having substantial gainful employment. 20
C.F.R. § 404.1520(a)(4)(v). Through the fourth step, the
burden of production and proof is on the claimant. Grant
v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). At step
five, the burden shifts to the Commissioner to produce
evidence that other jobs exist in the national economy that
the claimant can perform, considering the ...