United States District Court, D. South Carolina, Florence Division
Timothy M. Cain, United States District Judge.
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). 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.
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.
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). 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).
Standard of Review
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.
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)”),  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.
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.
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
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.
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.
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.
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