Williams v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/18/2015. (JLC)

FILED
2015 Feb-18 PM 03:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ETHYL LEE WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 4:13-CV-398-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Ethyl Lee Williams (“Williams”) initiated this social security appeal

on February 27, 2013. (Doc. 1). This matter is before the court on the objections
(Doc. 17) of the Commissioner to Magistrate Staci G. Cornelius’s report and
recommendation (the “R&R”),1 which proposes that the decision of the
Commissioner be reversed and remanded. (Doc. 16). Both parties filed briefs relating
to Williams’s appeal. (Docs. 12-13). The R&R was entered on July 25, 2014. (Doc.
14). The Commissioner’s objections were filed on August 8, 2014. (Doc. 15). This
case was randomly reassigned to the undersigned judge on January 30, 2015. (Doc.
1

The parties have not consented to the jurisdiction of the magistrate judge. Therefore, in
accordance with 28 U.S.C. § 636(b), the magistrate judge entered a report and recommendation.

17).
The matter, therefore, is now under submission, and for the reasons explained
below, the court OVERRULES the Commissioner’s objections, and ACCEPTS the
R&R in its entirety. Consequently, the Commissioner’s decision is due to be
REVERSED and REMANDED for further proceedings.
II.

STANDARDS
A.

Social Security Appeals

The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court. The ALJ’s legal conclusions, however, are reviewed de novo,
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because no presumption of validity attaches to the ALJ’s determination of the proper
legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993).
If the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, the ALJ’s decision must be reversed. Cornelius v.
Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir. 1991).
B.

District Court Review of Report and Recommendation

After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982)
(quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other
grounds by Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)).2
The district judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

2

The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the former
Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982); see also United States
v. Schultz, 565 F.3d 1353, 1361 n.4 (11th Cir. 2009) (discussing the continuing validity of Nettles).
3

A district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep.
No. 94-1609, 94th Cong., 2d Sess., reprinted in 1976 U.S. Code Cong. & Admin.
News 6162, 6163). In contrast, those portions of the R&R to which no objection is
made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F. App’x 781,
784 (11th Cir. 2006).3
“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation
marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003)). It is incumbent upon the parties to timely raise any objections that they may

3

Macort dealt only with the standard of review to be applied to a magistrate’s factual
findings, but the Supreme Court has held that there is no reason for the district court to apply a
different standard to a magistrate’s legal conclusions. Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct.
466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a clear-error
standard to both. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373-74 (N.D. Ga. 2006)
(collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes
between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when a magistrate’s
findings of fact are adopted by the district court without objection, they are reviewed on appeal under
a plain-error standard, but questions of law remain subject to de novo review).
4

have regarding a magistrate judge’s findings contained in a report and
recommendation, as the failure to do so subsequently waives or abandons the issue,
even if such matter was presented at the magistrate judge level. See, e.g., United
States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (“While Pilati raised the issue
of not being convicted of a qualifying offense before the magistrate judge, he did not
raise this issue in his appeal to the district court. Thus, this argument has been waived
or abandoned by his failure to raise it on appeal to the district court.”). However, the
district judge has discretion to consider or to decline to consider arguments that were
not raised before the magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th
Cir. 2006); see also Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(“Thus, we answer the question left open in Stephens and hold that a district court has
discretion to decline to consider a party’s argument when that argument was not first
presented to the magistrate judge.”).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n.8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
rule “would effectively nullify the magistrate judge’s consideration of the matter and
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would not help to relieve the workload of the district court.” Williams, 557 F.3d at
1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d
615, 622 (9th Cir. 2000)).
III.

ANALYSIS
The Commissioner challenges only one aspect of the R&R: the magistrate’s

finding that the ALJ failed to address Williams’s argument that she could not meet
the attendance requirements for any employment. (Doc. 17 at 1-2). Therefore, the
Commissioner has waived any objection as to other parts of the R&R. After
reviewing the R&R for clear error as to those portions without any objection pending,
the court finds none and ACCEPTS all those parts of the R&R. The court has
considered de novo the part of the R&R to which the Commissioner objects: the
conclusion that the ALJ committed reversible error by failing to make findings on
whether Williams could meet the attendance requirements for employment.
The Commissioner does not dispute that the medical record shows that
Williams had medical treatments or appointments much more frequently than once
a month or that the vocational expert testified that employers would tolerate no more
than one absence per month. (Doc. 17 at 2). Rather, the Commissioner argues that the
magistrate’s conclusion was mistaken because it
requires the assumption that Plaintiff would have missed an entire workday for
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each of her medical appointments, which is not evident from the records.
Moreover the majority of the medical appointments cited were routine followups with Plaintiff’s pain management specialist Dr. Upadhyay, recurring on a
[sic] essentially monthly basis with additional infrequent injection therapy.
Many of the rest of the cited physician visits were with Plaintiff’s primary care
sources and were during times that largely coincided with or were in very close
proximity to her regular pain treatments. As such, much of the duplication for
medical visits likely could have been avoided. This is particularly true in light
of the fact that many of Plaintiff’s visits to her primary care sources were for
her alleged pain, which was generally reported as well controlled by her pain
management specialists.
(Doc. 12 at 3-4) (citations to transcript omitted throughout).
This argument evinces an incorrect understanding of the standard of review
employed by the court. The R&R does not make any of its own findings as to
Williams’s alleged disability; it merely recommends a remand in order that the ALJ
make a finding on a crucial issue that he left unaddressed. Therefore, the question is
not whether the magistrate is relying on an “assumption . . . which is not evident from
the record” (Doc. 17 at 3), but whether the ALJ’s decision depends on an assumption
that is not evident from the record.
In light of the evidence showing that Williams often had multiple medical
appointments each month (see discussion in Doc. 16 at 10-11) and the vocational
expert’s testimony that missing more than one day per month would be incompatible
with any employment (Tr. 69-70), a finding as to how many days Williams would be
expected to miss each month is crucial to a disability determination. According to the
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Eleventh Circuit,
When the ALJ fails to state with at least some measure of clarity the grounds
for his decision, we will decline to affirm simply because some rationale might
have supported the ALJ's conclusion. In such a situation, to say that [the ALJ's]
decision is supported by substantial evidence approaches an abdication of the
court's duty to scrutinize the record as a whole to determine whether the
conclusions reached are rational.
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (internal
citations and quotation marks omitted). In this case, it perhaps is conceivable that
each and every month Williams could schedule all of her required medical care on a
single day, but it is not clear from the record that this is so. The record does not reveal
whether her physicians4 would always be able to fit her in on the same day of each
month, and so it would be speculative for the court to assume so.
Likewise, the court cannot conclude5 on the basis of the record that any of
Williams’s visits to her primary doctors were “duplication[s]” that “likely could have
been avoided” because her pain “was generally reported as well controlled by her
pain management specialists.” (see Doc. 12 at 3). Whether or not it would be
medically advisable for her to see only her pain management specialist or only a
primary care source, rather than both, is a medical opinion. There is no such opinion
4

One of whom, Dr. Updhyay, is in Anniston (see Tr. 363), and one of whom is in Gadsden
(see Tr. 453).
5

Nor, for that matter, does the court see how the ALJ could reach that conclusion without
the opinion of a medical source.
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given by any medical source in the record. Therefore, it would be speculative to adopt
the Commissioner’s argument.
The court therefore concurs with the magistrate’s recommendation to remand
so that the ALJ can “clarify whether Williams’s severe impairments would require her
to be absent from work more than one day per month to attend medical appointments
and whether such absenteeism would preclude her from engaging in her past relevant
work or any work in the national economy.” (Doc. 16 at 11).
IV.

CONCLUSION
For the reasons set out above, the court OVERRULES all of the

Commissioner’s objections and ACCEPTS the R&R. Accordingly, the decision of
the Commissioner is hereby REVERSED, and the case is REMANDED for further
proceedings. The court will enter a separate order consistent with this memorandum
opinion.
DONE and ORDERED this the 18th day of February, 2015.
,

VIRGINIA EMERSON HOPKINS
United States District Judge

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