Bishop v. Commissioner of the Social Security Administration

Filing 39

ORDER RULING ON REPORT AND RECOMMENDATIONS declining to adopt 31 Report and Recommendations, recommitting the action to the Magistrate Judge for further analysis. Signed by Honorable Timothy M Cain on 01/18/2012. (bshr, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

Richard Bishop,
Plaintiff,
v.
Michael J. Astrue, Commissioner
of Social Security Administration,

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C/A No. 1:10-2714-TMC

OPINION & ORDER

Defendant.

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of a
final decision of the Commissioner of Social Security ("Commissioner") denying his claims
for disability insurance benefits (“DIB”) under the Social Security Act (the "Act"). This
matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report"), filed on November 23, 2011. (Dkt. # 31). The Magistrate
Judge recommended the case be remanded to the Commissioner solely on the basis that
the Appeals Council did not articulate a reason for denying review. For the reasons set
forth below, the court declines to adopt the Report and recommits this matter to the
Magistrate Judge.
Procedural Background
Plaintiff applied for DIB on March 22, 2007, with an alleged disability onset date of
May 28, 2002, due to back problems, high blood pressure, depression, and anxiety. His
application was denied initially and upon reconsideration. An Administrative Law Judge
("ALJ") conducted a hearing on April 17, 2009, and on January 29, 2010, the ALJ denied

Plaintiff benefits. Plaintiff sought review of his case by the Appeals Council and submitted
a brief in support and additional medical evidence. On August 27, 2010, the Appeals
Council denied his request for review. Plaintiff filed this action seeking review of the
Commissioner's decision. The Magistrate Judge to whom this matter was referred filed a
Report on November 23, 2011, in which she recommended that the Commissioner's
decision be reversed and remanded for further administrative proceedings. (Dkt. # 31).
The Commissioner filed objections on December 12, 2011. (Dkt. # 33). On January
2, 2012, Plaintiff filed a response to the Commissioner’s objections. (Dkt. # 36).
Accordingly, this matter is now ripe for review.
Standard of Review
An individual is disabled if she is unable "to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or has lasted or can be expected to last for a continuous period
of not less than twelve months." 42 U.S.C. § 416(i)(1). The role of the federal judiciary in
the administrative scheme established by the Social Security Act is a limited one. 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). The
court must uphold the Commissioner's decision as long as it is supported by substantial

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evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). "From 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 agency." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir.
1969). "[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 this conclusion is rational." Vitek, 438 F. 2d at 1157-58.
The Magistrate Judge's review is made in accordance with 28 U.S .C. § 636(b)(1)(B)
and Local Civil Rule 73.02. 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 (1976). A
district 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);
see also Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). “By contrast, in the absence
of a timely filed objection, a district court need not conduct a de novo review, but instead
must ‘only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). De novo review
is also not required “when a party makes general or conclusory objections that do not direct
the court to a specific error in the magistrate judge's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982) (citations omitted).
The district court need not review issues that are beyond the subject of an objection.

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Thomas v. Arn, 474 U.S. 140, 149 (1985); Camby, 718 F.2d at 200. Upon careful review
of the record, the district court may accept, reject, or modify the findings or
recommendations made by the magistrate judge. Camby, 718 F.2d at 200.
DISCUSSION
In his brief, Plaintiff alleges the ALJ erred in denying him benefits on the following
grounds: 1) a failure by the ALJ to properly evaluate the Plaintiff’s serious, continuing
problems documented by objective data which would prohibit work; 2) a failure by the ALJ
to evaluate testimony of a vocational witness; 3) failure by the ALJ to provide an adequate
credibility determination; 4) a failure by the ALJ in relying on contradictory VE testimony
which conflicted with the information in the DOT; and 5) a failure by the Appeals Council
to properly evaluate the new and material evidence. (Pl.’s Reply Mem. at 1).
The Magistrate Judge recommends a remand based solely on the Appeals Council’s
failure to articulate a reason for denying review of the ALJ’s decision. The remaining four
issues raised by Plaintiff were not addressed in the Report. In Meyer v. Astrue, 662 F.3d
700 (4th Cir. 2011), decided nine days after the Magistrate Judge filed her Report, the
Fourth Circuit held that the Appeals Council is not required to articulate its rational for
denying a request for review. Id. at 707. The Fourth Circuit then stated when the Appeals
Council receives additional evidence and denies review, the issue for the court is whether
the ALJ’s decision is supported by substantial evidence. Id. Further, the court held that
when the evidence is one-sided, the court may be able to determine whether substantial
evidence supports the ALJ’s decision. Id. In Meyer, however, the court held it could not
determine whether substantial evidence supported the ALJ’s decision and thus remanded

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the case to the Commissioner for a rehearing. Id.
Here, the Magistrate Judge’s recommendation is based solely upon her conclusion
that the Appeals Council should have articulated a reason for denying review. The
Magistrate Judge did not analyze whether substantial evidence in the record supports the
ALJ’s decision. Accordingly, the matter is recommitted to the Magistrate Judge for further
analysis. Furthermore, in the interest of judicial efficiency, the Magistrate Judge should
also address the additional claims Plaintiff raised in his brief.
CONCLUSION
For the foregoing reasons, the court declines to adopt the Report and
Recommendation and instead RECOMMITS this action to the Magistrate Judge for further
analysis consistent with this order and opinion.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
January 18, 2012
Greenville, South Carolina

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