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Thomas v. Saul

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

September 11, 2019

James Edward Thomas, Plaintiff,
v.
Andrew M. Saul, Commissioner of Social Security Administration, Defendant.

          ORDER

          Timothy M. Cain, United States District Judge.

         Plaintiff James Edward Thomas (“Thomas”) brought this action under 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for disability insurance benefits (“DIB”) under the Social Security Act (“SSA”). (ECF No. 1).[1] This matter is before the court for review of the Report and Recommendation (“Report”) of the United States Magistrate Judge, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). (ECF No. 45).[2] In his Report, the magistrate judge recommends that the court affirm the decision of the Commissioner to deny benefits. Id. at 26. Thomas filed objections. (ECF No. 46). The Commissioner filed a reply to those objections. (ECF No. 48). Accordingly, this matter is ripe for review.

         II. Background

         On June 6, 2012, Thomas filed an application for DIB, alleging that he became unable to work on July 29, 2009, due to a spinal fusion and a right arm injury from a gun shot wound years earlier. (ECF Nos. 20-2 at 40, 44; 20-3 at 2).[3] His application was denied initially and on reconsideration. (ECF No. 20-3 at 11, 23, 26). Thomas requested a review by an administrative law judge (“ALJ”), (ECF No. 20-4 at 13), and a hearing was held before an ALJ on January 14, 2014 (ECF No. 20-2 at 33). On February 11, 2014, the ALJ denied Thomas benefits, finding that Thomas was not disabled within the meaning of the Act. (ECF No. 20-11 at 2-11). Thomas requested a review of the ALJ's decision, which the Appeals Council denied on June 2, 2015. Id. at 17. Thomas then filed an action in this court on August 4, 2015, Thomas v. Comm'r of Soc. Sec. Admin., No. 4:15-cv-3061-PMD-TER (D.S.C.). The Commissioner requested a remand to conduct a de novo hearing, and, pursuant to sentence four, the court remanded the action for further administrative proceedings. (ECF No. 20-11 at 23-25). Another hearing was held on May 16, 2017, at which Thomas and a vocational expert (“VE”) testified. (ECF No. 20-10 at 33). On August 18, 2017, the ALJ again denied Thomas's claim, finding that Thomas was not disabled within the meaning of the Act. Id. at 19-26. Thomas filed written exceptions to the ALJ's decision. (ECF No. 20-12 at 59-65). On June 13, 2018, the Appeals Council determined that the exceptions had no merit and, therefore, found no reason to assume jurisdiction. (ECF No. 20-10 at 2-5). Thomas then filed this action on July 2, 2018. (ECF No. 1).

         III. Standard of Review

         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.

         IV. Analysis

         In his brief, Thomas argued that the ALJ failed to comply with Social Security Acquiescence Ruling 00-1(4), 65 Fed. Reg. 1936, 2000 WL 43774 (Jan. 12, 2000) (“AR 00-1(4)”), [4] properly perform a subjective symptom evaluation in accordance with Social Security Regulation (“SSR”) 16-3p, and properly explain the lack of limitations for the right upper extremity in the residual functional capacity (“RFC”). (ECF No. 26).[5] Citing Monroe v. Colvin, 826 F, 3d 176, 189-90 (4th Cir. 2016), the magistrate judge found that AR 00-1(4) is inapplicable when a prior decision has been vacated. (ECF No. 45 at 18). The magistrate judge also concluded that “the ALJ conducted the proper evaluation of Thomas' subjective symptoms and cited substantial evidence to support his finding that Thomas' allegations of disabling symptoms were not entirely consistent with the record.” Id. at 23. Finally, the magistrate judge determined that the ALJ's RFC analysis was proper and supported by substantial evidence. Id. at 25.

         Thomas has raised two objections: (1) the ALJ failed to explain the RFC findings; and (2) the ALJ erred in his evaluation of Thomas' subjective reports. (ECF No. 46 at 1, 4). In his response to Thomas' objections, the Commissioner first contends that Thomas is merely rehashing most of the same arguments he raised in his brief (ECF No. 26). (ECF No. 48 at 1, 3). As other courts have recognized in the social security context, the court may reject rehashed objections to the Report as this amounts to a second opportunity to present the arguments already considered by the magistrate judge. Crawford v. Comm'r of Soc. Sec. Admin., No. 8:17-cv-02799-JMC, 2019 WL 1416883, at *3 (D.S.C. Mar. 29, 2019). Thus, a de novo review is wholly unnecessary when a party seeks to rehash arguments in his objections that were already addressed in a magistrate judge's Report. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see also Butler v. Berryhill, No. 4:16-cv-03209-JMC, 2018 WL 1556188, at *1 n.3 (D.S.C. Mar. 30, 2018) (“The court does not need to conduct a de novo review of objections presented in the form of ‘[complete statements] of arguments already made, . . . as these objections never cite specific conclusions of the [report] that are erroneous.'”) (quoting Smith v. City of N. Charleston, 401 F.Supp.2d 530, 533 (D.S.C. 2005)). The court agrees with the Commissioner that Thomas has mostly reiterated his arguments in his objections. However, as discussed below, even reviewing de novo Thomas' rehashed arguments as set forth in his objections, the court is satisfied that there was substantial evidence to support the ALJ's decision.

         In his first objection, Thomas contends that the magistrate judge erred by failing to explain his RFC findings. (ECF No. 46 at 1). Thomas specifically argues that in determining Thomas' RFC the ALJ failed to consider the evidence that he had slowed hand movements and cervical degenerative disc disease. Id. at 3. Thomas complains that the ALJ selectively chose evidence from Dr. Regina A. Roman's consultative exam to support the conclusion that Thomas could pick up coins and manipulate larger objects and ignored Dr. Roman's notation that Thomas performed fine dexterity movement of the fingers and alternating motions of the hands slowly. (ECF No. 46 at 1). “While the ALJ's decision must ‘contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based,' 42 U.S.C. § 405(b)(1), “‘there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.'” Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). Rather, an ALJ “need only ‘minimally articulate' his reasoning so as to ‘make a bridge' between the evidence and his conclusions.” Jackson v. Astrue, No. 8:08-cv-2855-JFA-BHH, 2010 WL 500449, at *10 (D.S.C. Feb. 5, 2010) (quoting Fischer v. Barnhart, 129 Fed. App'x 297, 303 (7th Cir. 2005)). Moreover, “[s]imply because the plaintiff can produce conflicting evidence which might have resulted in a contrary interpretation is of no moment.” Washington v. Astrue, 659 F.Supp.2d 738, 753 (D.S.C. 2009) (citing Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). The court finds that the ALJ's RFC determination is sufficient for the court to make a bridge between the evidence and the ALJ's conclusion and, further, it is supported by substantial evidence.

         Thomas further contends that the magistrate judge erred when he concluded that “the ALJ properly considered that Thomas had not required repeated emergency treatment or inpatient hospitalization since his right extremity injury and that there was no documentation of any treatment specifically for this conditions since the alleged onset date.” Id. at 1-2. Thomas argues that he “need not be bedridden or completely helpless to be found disabled.” Id. at 2. Although Thomas is correct that he need not be bedridden or completely helpless to be found disabled, the court finds that it was appropriate for the ALJ to consider Thomas' lack of treatment in evaluating his claim. See Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994) (finding that an inconsistency between the level of claimant's treatment and her claims of disabling pain supported the conclusion that claimant was not credible); see also Wise v. Astrue, No. 3:09-cv-1324-HMH-JRM, 2010 WL 1542567, *6 (D.S.C. Mar. 26, 2010) (holding that “[a] claimant's lack of treatment may be considered in evaluating whether an impairment is disabling.”). Moreover, as the Commissioner argues, (ECF No. 48 at 4), the ALJ considered Thomas' testimony that he had limited feeling in and use of his right upper extremity and the medical evidence that showed that Thomas had decreased sensation in the right upper extremity and some loss of grip strength. (ECF No. 20-10 at 23-25). Accordingly, the court finds that substantial evidence supports the ALJ's RFC determination in regard to Thomas' upper right extremity.

         Thomas also contends that the ALJ failed to address his cervical degenerative disc disease in determining his RFC. (ECF No. 46 at 2). In response, the Commissioner argues that Thomas is raising a new issue in his objections, and that Thomas waived this issue because he failed to raised it in his opening brief. (ECF No. 48 at 7). Arguably, because Thomas “failed to raise this error in [his] initial brief, [this] argument is waived.” Hicks v. Astrue, No. 0:09-3053-cv-CMC, 2011 WL 489924, * 2 (D.S.C. Feb. 7, 2011) (citing Anderson v. Dep't of Labor, 422 F.3d 1155, 1174, 1182 n.51 (10th Cir. 2005)). In any event, the ALJ specifically discussed Thomas' degenerative disc, (ECF No. 20-10 at 24, 25), and the court finds that substantial evidence supports the ALJ's finding disease that Thomas' allegations of disabling symptoms in regard to his cervical degenerative disc disease are not entirely consistent with the record.

         Thomas further argues that the ALJ failed to consider the combined effect of all his impairments when he found that Thomas could constantly reach and perform his PRW. Id. at 3. However, as noted above, the ALJ specifically considered the combination of Thomas' impairments, found that they did not meet they severity of a listing, and concluded that the combination of impairments did not impose greater limitations than those inherent in the RFC. (ECF No. 20-10 at 22). Accordingly, based on the foregoing, the court finds that ...


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