McKinney v. Astrue

Filing 24

ORDER rejecting Pltf's 23 Objections; adopting 19 Memorandum and Recommendations; denying Pltf's 15 Motion for Summary Judgment; granting Deft's 16 Motion for Summary Judgment; affirming Commissioner's decision and dismissing case. Signed by District Judge Martin Reidinger on 1/24/13. (ejb)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv199

LISA McKINNEY,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL J. ASTURE,
)
Commissioner of Social Security,
)
)
Defendant.
)
_____________________________________)

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Summary Judgment [Doc. 15] and the Defendant’s Motion for Summary
Judgment [Doc. 16].
Pursuant to 28 U.S.C. §636(b) and a specific Order of referral of this
Court, the Honorable Dennis L. Howell, United States Magistrate Judge,
was designated to consider these pending motions and to submit to this
Court a recommendation for their disposition. On December 11, 2012, the
Magistrate Judge filed a Memorandum and Recommendation [Doc. 19] in
which he recommended that the Plaintiff’s Motion for Summary Judgment
be denied; the Defendant’s Motion for Summary Judgment be granted and
the Commissioner’s decision be affirmed. [Id.]. The parties were advised

of the time within which any objections to the Magistrate Judge’s
Memorandum and Recommendation were to be filed. The Plaintiff timely
filed her Objections to the Memorandum and Recommendation. [Doc. 23].
PROCEDURAL HISTORY
The Plaintiff does not lodge any objections to the Magistrate Judge’s
statement of the procedural and factual Background, Standard of Review,
or Discussion of the sequential evaluation process. She also does not
object to the Magistrate Judge’s discussion concerning the Administrative
Law Judge’s (ALJ) treatment of her condition of obesity.
Having conducted a careful review of these portions of the
Memorandum and Recommendation, the Court finds that the Magistrate
Judge’s treatment thereof is correct and supported by the record.
STANDARD OF REVIEW
This Court has statutory authority to assign pending dispositive
pretrial matters to a Magistrate Judge for “proposed findings of fact and
recommendations.” 28 U.S.C. § 636(b)(1)(B). The Federal Magistrate Act
provides that the Court “shall make a de novo determination of those
portions of the report or specific proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1). The Court is not required
to review under a de novo standard the proposed factual findings or legal
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conclusions of the Magistrate Judge to which no objections have been
raised. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985). Similarly, de novo review is not required “when a party makes
general or conclusory objections that do not direct the court to a specific
error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
DISCUSSION
The Plaintiff’s first assignment of error is to the Magistrate Judge’s
conclusion that any failure by the ALJ to specifically address the Plaintiff’s
condition of hallux limitus1 was harmless error.

The Magistrate Judge,

however, based this conclusion on the fact that the Plaintiff did not claim
hallux limitus as an impairment in her application or at her hearing. [Doc.
11-6; Doc. 11-3 at 35-45]. Although the Plaintiff testified at her hearing that
she had just begun having problems with her feet within the past three
months prior to the hearing, she did not state that she had such a diagnosis
and no further explanation was given by her. [Id. at 44].
The Plaintiff now cites to her medical records, claiming they disclose
a condition which, in conjunction with other impairments, created a

condition of hallux limitus is a loss of motion in the great toe. Dorland’s Illustrated
Medical Dictionary at 818 (32d ed. 2012).
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1 The

functional limitation in her ability to work. [Doc. 23 at 2]. The records cited,
however, do not show such a limitation. In April 2010, the Plaintiff was
seen by her podiatrist for follow up of “painful hallux limitus deformity” but
she reported that the “[n]ew orthotic is very comfortable” and she was
instructed to continue to wear it. [Doc. 11-13 at 12]. A little over one month
later, the Plaintiff called to cancel her appointment stating that her foot was
better and she would call if it began to hurt again. [Id.]. Her gait was
reported as normal. [Id. at 15]. There is no further evidence in the record
that the Plaintiff received treatment for this condition; thus, she failed to
meet the durational requirement.

42 U.S.C. §423(i)(1)(A); 20 C.F.R.

§404.1509.
Nine of the twenty-three pages of Objections filed by the Plaintiff
relate to her claims that the ALJ committed error in the handling of her
condition of hallux limitus and that such error was not harmless. [Doc. 23].
The Magistrate Judge, she argues, failed to address that error, failed to
consider whether it was indeed harmless and merely glossed over the
issue of whether that condition, in conjunction with others, impacted her
functional limitations. [Id.]. Before the Magistrate Judge, however, the
Plaintiff’s sole argument was one paragraph in which she concluded:
“Regardless of whether or not this impairment would be considered severe,
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the ALJ was still obliged to consider ‘the combined effect of both severe
and nonsevere impairments’ on [her] ability to perform work-related
functions.” [Doc. 15-1 at 20]. No further argument was offered. Where a
party asserts claims in the objections which were not asserted in support of
or in opposition to a motion before the Magistrate Judge, de novo review is
not warranted. Price v. Dixon, 961 F.Supp. 894 (E.D.N.C. 1997) (claims
cannot be raised for the first time in objections to a memorandum and
recommendation). The Court therefore rejects the Plaintiff’s Objections as
to this issue.
The Plaintiff’s next objection is to the Magistrate Judge’s conclusion
that the ALJ properly considered her mental and physical impairments in
combination. The Plaintiff claims the ALJ merely “mouthed” the appropriate
words without actually weighing the combined effects of such impairments.
The ALJ, however, noted each of the Plaintiff’s impairments, some of which
he found to be severe and others not severe. [Doc. 11-3 at 17-18]. He
next considered her mental impairment and its impact on her activities of
daily living. [Id. at 18-20]. Finally, the ALJ discussed the impact of these
impairments, both individually and in combination.

[Id. at 20-25].

The

Magistrate Judge’s conclusion as to the ALJ’s consideration is correct.
The Magistrate Judge found that the ALJ did not err by rejecting the
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opinion of the Plaintiff’s treating physician concerning the extent of her
impairments. The Plaintiff claims that the Magistrate Judge did not actually
address her assignments of error concerning the ALJ’s rejection of the
treating physician’s opinion.

She claims that the Magistrate failed to

specifically cite to those portions of the record which supports the ALJ’s
determination. This argument overlooks the Magistrate Judge’s citations to
the transcript, showing the medical evidence, the treating physician’s
opinion, the Plaintiff’s daily activities, and other evidence supporting the
ALJ’s decision not to assign controlling weight. [Doc. 19 at 10-11].
The Plaintiff’s Objections as to this issue constitute a strange
combination of the mere reiteration of the arguments made in her initial
brief and references to arguments not made before the Magistrate Judge.2
[Doc. 23 at 10-23].

However, merely referencing the same arguments

made in the pleading submitted to the Magistrate Judge does not warrant
de novo review. United States v. Midgette, 478 F.3d 616, 621 (4th Cir.),
cert. denied 551 U.S. 1157, 127 S.Ct. 3032, 168 L.Ed.2d 749 (2007)
(emphasis in original). And, as noted above, arguments made for the first

In the brief before the Magistrate Judge, the Plaintiff confined her arguments to the
ALJ’s treatment of Dr. Smoker’s opinion. [Doc. 15-1]. In the Objections, however, she
expands her argument to the ALJ’s consideration of the opinions of nontreating
physicians. [Id.].
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2

time in the objections which were not asserted before the Magistrate Judge
do not warrant de novo review. Price, 961 F.Supp. 894.
This Court, moreover, does not “undertake to reweigh conflicting
evidence, make credibility determinations, or substitute [its] judgment for
that of the [ALJ].” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)
(internal quotation and citation omitted).

“Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the [ALJ].” Id. It is not the role of this
Court to draw different conclusions from the evidence; the duty of resolving
conflicts in the evidence belongs to the ALJ. Id. This Objection is rejected
as well.
The Plaintiff’s final objection is to the Magistrate Judge’s statement
that the ALJ found the Plaintiff’s daily activities inconsistent with the
limitations imposed on her by Dr. Smoker. [Doc. 23 at 18]. This argument,
again, was not raised before Magistrate Judge and will not be considered
here.
Having conducted a de novo review where appropriate, the Court
accepts the Magistrate Judge’s recommendation that the Commissioner’s
decision should be affirmed.

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ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Objections [Doc.
23] are hereby REJECTED, and the Magistrate Judge’s Memorandum and
Recommendation [Doc. 19] is hereby ADOPTED.
IT IS FURTHER ORDERED that the Defendant’s Motion for
Summary Judgment [Doc. 16] is hereby GRANTED and the Plaintiff’s
Motion for Summary Judgment [Doc. 15] is hereby DENIED.
IT IS FURTHER ORDERED that the decision of the Commissioner is
AFFIRMED and this case is hereby DISMISSED.
The Clerk of Court is instructed to enter Judgment.
Signed: January 24, 2013

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