Burrell v. Commissioner of Social Security Administration

Filing 50

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 45 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Mary G. Lewis on 09/23/2013. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
KATINA RENEE BURRELL,

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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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Civil Action No. 0:12-cv-1082-MGL

OPINION AND ORDER

This matter is before the court for review of the Report and Recommendation of
United States Magistrate Judge Paige J. Gossett made in accordance with 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02 for the District of South Carolina. Katina Renee Burrell
(“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) seeking judicial
review of the final decision of the Commissioner of Social security (“Commissioner”)
denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security
Income (“SSI”) under the Social Security Act. (ECF No. 1). The Magistrate Judge issued
a Report and Recommendation on April 5, 2013, recommending that the Commissioner's
decision be affirmed. (ECF No. 45). Plaintiff filed objections to the Report seeking a
reversal of the Commissioner’s decision. (ECF No. 46). The Commissioner filed a
response to Plaintiff’s objections on May 9, 2013. (ECF No. 47). For the reasons stated
below, the court adopts the Report and Recommendation and affirms the Commissioner’s
decision.

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BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and
standards of law on this matter which the court incorporates herein and summarizes in
relevant part. Plaintiff filed applications for DIB and SSI in September 2006 alleging
disability as of October 1, 2004, due to fibromyalgia and tendonitis. (Tr. 37-38, 130). She
has a high school diploma and past relevant work history as a infant caregiver, a cashier,
and a secretary. (Tr. 135, 131). Her applications were denied initially (Tr. 37-38) and upon
reconsideration (Tr. 50-53). Plaintiff requested a hearing before an administrative Law
Judge (“ALJ”) and a hearing was held on September 2, 2009. (Tr. 21-35). The ALJ found
that Plaintiff was not under a disability as defined by the Social Security Act. (Tr. 9-16).
The Appeals Council denied Plaintiff’s request for review on July 1, 2011 (TR. 1-3), making
the ALJ’s decision the final decision of the Commissioner. Subsequently, Plaintiff filed an
action in this court on April 23, 2012. (ECF No. 1).
REPORT AND RECOMMENDATION
The Magistrate Judge recommends affirming the ALJ’s decision. (ECF No. 45 at
15).

The Magistrate Judge makes only a recommendation to this court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46
L.Ed.2d 483 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objection is made. The
court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).

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PARTIES RESPONSE
Plaintiff filed objections to the Report and Recommendation (“Objections”) on April
22, 2013, raising two primary objections, outlined below, which relate to the ALJ’s analysis
of the evidence. (ECF No. 46). The Commissioner filed a response to Plaintiff’s objections
to the Magistrate Judge’s Report and Recommendation and asks this court to affirm the
Commissioner’s decision. (ECF No. 47 at 4).
DISCUSSION
Standard of Review
The role of the federal judiciary in the administrative scheme established by the
Social Security Act is a limited one. Under 42 U.S.C. § 405(g), the court may only review
whether the Commissioner’s decision is supported by substantial evidence and whether
the correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner
of Social Security as to any fact, if supported by substantial evidence, shall be conclusive
. . .”); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence has been
defined innumerable times as more than a scintilla, but less than preponderance.” Thomas
v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964); see, e.g., Daniel v. Gardner, 404 F.2d
889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). In order for a
reviewing court to determine whether the Commissioner based a decision on substantial
evidence, “the decision must include the reasons for the determination . . . .” Green v.
Chater, 64 F.3d 657, 1995 WL 478032, *2 (4th Cir.1995) (citing Cook v. Heckler, 783 F.2d
1168, 1172 (4th Cir.1986)). The statutorily mandated standard precludes a review of the
factual circumstances that substitutes the court’s findings for those of the Commissioner.

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See, e.g., Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Accordingly, “the court [must]
uphold the [Commissioner’s] decision even should the court disagree with such decision
as long as it is supported by ‘substantial evidence.’” Blalock v. Richardson, 483 F.2d 773,
775 (4th Cir. 1972). In Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969), the court indicated
“[f]rom 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 an uncritical rubber stamping of the administrative action.” Id. at 279. “[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 his conclusion
is rational.” Vitek, 438 F.2d at 1157-58.
Plaintiff’s Objections
Initially, the court notes that Plaintiff asks the court to decline to follow the Magistrate
Judge’s Report and Recommendation and, instead reverse the Commissioner’s decision
and find Plaintiff is entitled to benefits. In the alternative, Plaintiff asks the court to remand
this matter to the Commissioner for further proceedings. Plaintiff sets forth two specific
objections to the Magistrate Judge’s Report and Recommendation.
1. Weight Assigned to Plaintiff’s Treating Physician
First, Plaintiff asserts that the Magistrate Judge incorrectly determined that the
opinion of her treating physician, Dr. Vest, was given appropriate consideration. (ECF No.
46 at 1-2). Review of the Report and Recommendation indicates that the Magistrate Judge
fully addressed Plaintiff’s contentions of error concerning the weight assigned to Dr. Vest’s
opinion and the analysis conducted by the ALJ as required by 20 C.F.R. § 404.1527. (ECF

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No. 45 at 7-10).

Under the regulations of the Social Security Administration, the

Commissioner is obligated to consider all medical evidence and the opinions of medical
sources, including treating physicians. Id. § 404.1545. The regulation, known as the
“Treating Physician Rule,” imposes a duty on the Commissioner to “evaluate every medical
opinion we receive.” Id. § 404.1527(c). Generally, the Treating Physician Rule requires
a court to accord greater weight to the testimony of a treating physician, however, the rule
does not require that the testimony be given controlling weight. Hunter v. Sullivan, 993
F.2d 31, 35 (4th Cir. 1992). A treating physician’s opinion is entitled to controlling weight
if “it is supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in the record.” See 20 C.F.R. § 416.927.
Therefore, by negative implication, it follows that a treating physician's opinion can be
accorded less weight if it is not supported by the clinical evidence or if it is inconsistent with
other substantial evidence. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
Here, the ALJ indicated that he carefully considered Dr. Vest’s opinion that Plaintiff
was unable to work and determined that Dr. Vest’s opinion was entitled to limited weight.
The record adequately supports the ALJ’s decision to discount Dr. Vest’s opinion. In
making this determination, the ALJ observed that Dr. Vest’s opinion that Plaintiff was
“completely and totally disabled from performing any occupation on a full-time or consistent
basis” was set out in “an attorney supplied questionnaire.” Id. Further, the record does not
reflect that Dr. Vest articulated any basis for this opinion and the record does not contain
any clinical or objective medical evidence to support this opinion. Id. Instead, as noted by
the Magistrate Judge, Dr. Vest made only general references to the claimant’s patient

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history, exams and the record of previous doctors. Id. Additionally, the ALJ noted that Dr,
Vest’s treatment notes contained a statement that Plaintiff was “unable to work due to pain
in hips.” Id. As explained by the Magistrate Judge, Dr. Vest’s records do not reflect that
he examined Plaintiff’s wrists, hips, or spine nor do they reflect any objective examination
that supports his opinion that Plaintiff cannot work due to pain in her hips. The ALJ
indicated that Dr. Vest’s statement merely restated Plaintiff’s subjective history and was
not an opinion.
Plaintiff has the burden of presenting objective medical evidence to establish that
she is disabled and she has not done so here. 20 C.F.R. § 404.1512(a). Thus, the court
agrees with the Magistrate Judge that the ALJ applied the correct legal principles and
sufficiently described his reasons for giving a giving limited weight to Dr. Vest’s opinion.
The court concludes that there is substantial evidence in the entire record that supports the
ALJ’s decision concerning the appropriate weight given to Dr. Vest’s opinion and the court
finds no reversible error with respect to this issue.1 The court now turns to Plaintiff’s next
objection.
ALJ’s Consideration of Whether Plaintiff Can Return to Past Relevant Work
Next, Plaintiff contends that the ALJ erred in his determination that Plaintiff could
return to her past relevant work. Plaintiff’s objection essentially restates her arguments
made in her initial filings, and does not alert the court to matters which were erroneously
considered by the Magistrate Judge. The court finds that the Magistrate Judge’s Report

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Plaintiff has also asserted that the Magistrate Judge “incorrectly stated the law”
concerning consideration of a treating physician’s opinion as to whether or not a claimant is
disabled. The court has reviewed the Report and Recommendation and finds no error in the
Magistrate Judge’s analysis.

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ane Recommendation appropriately addresses Plaintiff’s argument on this issue. (ECF No.
45 at 10-11). As such Plaintiff’s objection is overruled
CONCLUSION
After carefully reviewing the record, including the findings of the ALJ, the parties’
briefs, the Report and Recommendation, Plaintiff’s objections, and the Commissioner's
response, the court concurs in the Recommendation of the Magistrate Judge that the
Commissioner’s decision was supported by substantial evidence. Thus, the court adopts
and incorporates the Report and Recommendation herein. or the reasons set out above
and in the Report, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.

/s/ Mary G. Lewis
United States District Judge
September 23, 2013
Spartanburg, South Carolina

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