Fant v. Commissioner of Social Security Administration
Filing
24
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 15 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Bruce Howe Hendricks on 10/23/2015. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Thomas Lee Fant,
Plaintiff,
v.
Carolyn W. Colvin,
Acting Commissioner of Social
Security,
Defendant.
______________________________
) Civil Action No.: 1:14-cv-4482-BHH
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OPINION AND ORDER
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The plaintiff, Thomas Lee Fant (“the plaintiff”), brought this action pursuant to 42
U.S.C. § 405(g) to obtain judicial review of a final decision of the defendant, Acting
Commissioner of Social Security (“Commissioner”), denying his claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social
Security Act. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(B)(2)(a)
and 83.VII.02, D.S.C., this matter was referred to United States Magistrate Shiva V.
Hodges for pretrial handling.
On August 28, 2015, the magistrate judge issued a Report and Recommendation
in which she determined that the Commissioner’s decision was based on substantial
evidence. Accordingly, the magistrate judge recommended affirming the Commissioner’s
decision. (ECF No. 15 at 28.) The plaintiff filed Objections on September 27, 2015 (ECF
No. 20), and on October 2, 2015, the Commissioner filed a Reply (ECF No. 22). For the
reasons stated below, the Court adopts the Report and Recommendation and affirms the
Commissioner’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and
standards of law, and the Court incorporates them and summarizes below in relevant part.
The plaintiff was 44 years old on the date of the ALJ’s unfavorable decision. (R. at 56.)
He alleges disability due to head trauma. (R. at 57-58.) The plaintiff’s application was
denied initially and on reconsideration.
(R. at 20.)
A hearing was held before an
Administrative Law Judge (“ALJ”) who issued an unfavorable decision on August 22, 2013,
finding that the plaintiff was not disabled. (R. at 21-30, 36-90.) The Appeals Council
denied the plaintiff’s request for review (R. at 1-6), making the ALJ’s decision the final
decision of the Commissioner. The plaintiff subsequently filed an action in this Court on
November 20, 2014. (ECF No. 1.)
REPORT AND RECOMMENDATION
The magistrate judge recommends affirming the ALJ’s decision. (ECF No. 15 at
28.)
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. See Mathews v. Weber, 423 U.S. 261 (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, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the
matter to her with instructions. 28 U.S.C. § 636(b)(1). “However, the Court is not required
to review, under a de novo or any other standard, the factual or legal conclusions of the
magistrate judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court’s review of the
Report thus depends on whether or not objections have been filed, in either case the Court
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is free, after review, to accept, reject, or modify any of the magistrate judge’s findings or
recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137,
138 (D.S.C. 1992) (internal citations omitted).
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); Tyler v.
Weinberger, 409 F. Supp. 776 (E.D. Va. 1976). 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 W L
478032, *2 (4th Cir.1995) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.1986)).
The statutorily mandated standard precludes a de novo review of the factual circumstances
that substitutes the Court’s findings for those of the Commissioner. See, e.g., Vitek v.
Finch, 438 F.2d 1157 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968).
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). As noted by Judge Sobeloff in Flack v.
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Cohen, 413 F.2d 278 (4th Cir. 1969), “[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.
DISCUSSION
The plaintiff filed objections to the Report and Recommendation (“Objections”) on
September 27, 2015 (ECF No. 20), and the Commissioner filed a reply on October 2, 2015
(ECF No. 22). The plaintiff objects to the magistrate judge’s recommendation concerning
the ALJ’s alleged failure to (1) consider the opinion of the plaintiff’s treating physician, Dr.
Robin Moody and (2) lay testimony concerning the effects of two vehicular accidents.1
Respectfully, the plaintiff’s objection regarding the opinion evidence of Dr. Moody
is somewhat hard to follow. The plaintiff seems to accuse the magistrate judge of
wrongfully concluding that the ALJ had impliedly considered all the relevant regulatory
factors in finding that Dr. Moody’s cognitive testing was inconsistent with the record as a
whole. The plaintiff then makes the assumption that the magistrate judge must, therefore,
be referring to “the ALJ’s unsupported finding that there was ‘no evidence of an intervening
organic event in the medical records that would account for the poor performance on
cognitive tasks or the deficits reported by the psychological consultative examiner in
November 2011.’” (Pl. Brief at 3 (citing R&R 19).) It is not entirely clear why the plaintiff
1
As always, the Court says only what is necessary to address such objections against the
already meaningful backdrop of a thorough Report of the magistrate judge, incorporated entirely
by specific reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact
exists there.
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draws this very specific inference. The magistrate judge discusses generally about various
reasons why a perceived inconsistency between Dr. Moody’s opinion and the record was
supported by substantial evidence. (R&R at 20-21.) But, the plaintiff proceeds to explain
in great detail how the lay testimony of her sister, regarding the effects of a 1991 accident
did amount to testimony of an intervening event, apparently not properly considered by the
ALJ and magistrate judge. Critically, however, as the magistrate judge observed, the ALJ
expressly discussed at length the sister’s testimony concerning the 1991 accident and how
it had impacted the plaintiff’s condition. (R. at 25.) The ALJ explained all the reasons why
other evidence, including the plaintiff’s work history, justified rejecting it. Id.
So, the ALJ cannot be charged with error by his having concluded there was “no
evidence” that an intervening organic event occurred simply because the sister’s testimony
exists, as the plaintiff complains. Rather, he rejected, categorically, that testimony as
sufficient to establish a qualifying intervening event that explains additional impairment.
Effectively, therefore, “no evidence” on that point existed, precisely as the ALJ concluded.
The remainder of the plaintiff’s argument, that the ALJ somehow improperly
emphasized certain portions of Dr. Moody’s testimony and not others, is a recitation of her
initial brief and properly considered and rejected by the magistrate judge. The magistrate
judge’s exposition of, and reliance on, Tanner v. Commissioner of Social Sec., 602 F.
App’x 95, 100 (4th Cir. 2015) (finding no reversible error where it was clear from the ALJ’s
RFC assessment that he accepted most of the medical source’s findings) was proper. As
discussed, the ALJ neither “misstated” the lay evidence nor concluded that there “was no
such evidence!” as the plaintiff exclaims. (Obj. at 5.) He specifically discussed it. This
repeated and overemphasized point, of the plaintiff, is hard to understand.
The plaintiff’s second objection continues a discussion concerning the consideration
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of the sister’s testimony as to the 1991 and a subsequent, 2010, accident. Ironically, with
respect to this objection, the plaintiff nowy concedes what the Court, above, and the
magistrate judge, before it, had observed, that the sister’s testimony was in fact discussed
by the ALJ. But, the plaintiff contests the quality of the ALJ’s refutation of it. The
magistrate judge has already addressed these arguments and properly considered the
treatment of the sister’s various accounts and the weight accorded. (R&R at 26-29.) The
Court need not consider, as a specific objection, numerous things that have been
essentially and appropriately considered but rejected by the magistrate judge; it is
duplicative to do otherwise and inconsistent with the intended process. See Hendrix v.
Colvin, 2013 WL 2407126, at *4 (D.S.C. June 3, 2013); see also Jackson v. Astrue, 2011
WL 1883026 (W.D.N.C. May 17, 2011); Aldrich v. Bock, 327 F. Supp.2d 743, 747 (E.D.
Mich. 2004). Accordingly, the district court 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 & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
Advisory Committee's Note). The Court echos the recommended analysis in its adoption
of the same.
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CONCLUSION
The Court has carefully reviewed the record, including the findings of the ALJ, the
plaintiff’s objections to the Report and Recommendation, and the defendant’s reply. The
Court concurs in the recommendation of the magistrate judge and thus adopts the Report
and Recommendation and incorporates it herein by reference to the extent it is consistent
with this order. The decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
October 23, 2015
Greenville, South Carolina
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