McCraney v. Commissioner of Social Security Administration

Filing 16

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 11 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Cameron McGowan Currie on 05/19/2020. (bshr, )

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Date Filed 05/19/20

Entry Number 16

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

Civil Action No. 1:19-cv-1133-CMC
Plaintiff,

vs.

OPINION AND ORDER

Andrew Saul, Commissioner of Social
Security Administration,
Defendant.
Through this action, Plaintiff seeks judicial review of the final decision of the
Commissioner of Social Security denying her claim for Disability Insurance Benefits (“DIB”).
Plaintiff appealed pursuant to 42 U.S.C. § 405(g). The matter is currently before the court for
review of the Report and Recommendation (“Report”) of Magistrate Judge Shiva V. Hodges, made
in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(b)(2)(a) and 83.VII.02, et
seq., D.S.C.
The Report, filed April 8, 2020, recommends the decision of the Commissioner be
affirmed. ECF No. 11. On April 22, 2020, Plaintiff filed objections to the Report. ECF No. 12.
On April 30, 2020, the Commissioner filed a response to Plaintiff’s objections. ECF No. 13. For
the reasons stated below, the court adopts the Report and affirms the Commissioner.
Standard
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). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court

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may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 205(g) of the Act provides, “[t]he findings of the Secretary
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”1 42 U.S.C. § 405(g).
The court must uphold the Commissioner’s decision as long as it was supported by substantial
evidence and reached through the application of the correct legal standard. Johnson v. Barnhart,
434 F.3d 650 (4th Cir. 2005).

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). “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 action.” Flack v.

“Substantial evidence has been defined innumerable times as more than a scintilla, but less than
a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). “It means – and it
means only – such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 578 U.S. __, 139 S. Ct. 1148, 1154 (2019).
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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 his conclusion is rational.” Vitek, 438 F.2d at 1157-58.
However, the court does not “reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at 653. “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.
Background
Plaintiff applied for DIB on February 22, 2016, alleging disability as of June 30, 2014
(amended alleged onset date) due to fibromyalgia, AHHD, arthritis, COPD, anxiety with
depression, and hypertension. R2. at 20, 21, 173. Plaintiff’s application was denied initially and
upon reconsideration. On February 15, 2018, a hearing was held before an Administrative Law
Judge (“ALJ”), who denied Plaintiff’s claim on July 5, 2018. Plaintiff requested review by the
Appeals Council, which was denied, making the ALJ’s decision the final decision of the
Commissioner. Plaintiff filed this action April 17, 2019. ECF No. 1.
Discussion
The Magistrate Judge recommends the court affirm the Commissioner’s decision as
supported by substantial evidence. ECF No. 11. Plaintiff objects to the Report (ECF No. 12), and
the Commissioner has replied (ECF No. 15).

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Citations to the Record are denoted by “R.”
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1) Severe Impairment
The ALJ found Plaintiff had medically determinable impairments of left knee degenerative
joint disease, fibromyalgia, ADHD, and status post right fifth toe fracture, but did not have a severe
impairment or combination of impairments that significantly limited her ability to perform basic
work-related activities. R. at 20. He determined there were objective left knee findings, but as
Plaintiff did not seek related treatment after July 2014, and the September 2014 exam (via primary
care provider) was normal with no related complaints, the degenerative joint disease was not severe
through date of last insured (“DLI”). R. at 23. Similarly, he determined Plaintiff’s ADHD was
non severe through the DLI as it caused no more than mild limitation in any functional area. R. at
22. Regarding her fibromyalgia, the ALJ found it was not severe because it did not have more
than a minimal impact on her ability to perform past work activity, and also noted the first objective
findings were in August 2015, after the DLI. He observed Plaintiff’s daily activities were not
limited to the extent one would expect, “given the complaints of disabling symptoms and
limitations,” and concluded her physical and mental impairments did not significantly limit her
ability to perform basic work activities. R. at 25.
The Magistrate Judge reviewed the evidence relied on by the ALJ regarding Plaintiff’s left
knee degenerative arthritis and fibromyalgia (ECF No. 11 at 30),3 and found the ALJ did not err
in assessing the severity of Plaintiff’s impairments at Step Two, which evaluates the evidence

Plaintiff did not challenge the ALJ’s findings regarding her ADHD or healed right fifth toe
fracture. Id. at 25 n.5.
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supporting existence of medically determinable impairments and whether those impairments
significantly limit a plaintiff’s ability to perform basic work activities. Id. at 31. The Magistrate
Judge noted the ALJ “provided a thorough and rational explanation for finding left knee DJD and
fibromyalgia to be non-severe impairments prior to Plaintiff’s DLI,” including acknowledging
Plaintiff’s symptoms and medical tests but finding the impairments did not significantly limit her
ability to work. Id. at 33. Further, the Report noted the deference to be accorded the ALJ’s
assessment of post-DLI evidence. Overall, the Magistrate Judge found a review of the evidence
indicates a “reasonable mind would accept the ALJ’s explanation to support her finding that
Plaintiff’s impairments were not severe through her DLI.” Id. at 35.4
Plaintiff objects, arguing the record shows more than a “slight abnormality which has such
minimal effect on the individual that it would not be expected to interfere with [her] ability to
work.” ECF No. 12 at 4. Therefore, based on her age and past work, if she was appropriately
limited to light work in her RFC, she would be considered disabled. Id. Plaintiff contends her knee
abnormalities, severe muscular discomfort in her shoulders, back, neck, hips, and elbows are more
than “slight,” and therefore she cannot be found not to have severe abnormalities. Id. at 6-7.

The Magistrate Judge also found even if Plaintiff’s impairments were severe, it did not
necessarily mean she would be found disabled, as “Plaintiff cannot show the ALJ’s failure to
classify her impairments as severe at step two caused her to reach a different conclusion than she
otherwise would have reached.” ECF No. 11 at 36. Because the VE testified the hypothetical
individual described by the ALJ would be able to perform Plaintiff’s past relevant work (“PRW”)
as a cosmetologist, the Magistrate Judge determined Plaintiff would not be found disabled even if
the analysis proceeded beyond Step Two.
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Specifically, she notes swelling, pain, tear in the medial meniscus, a Baker’s cyst, cartilage
irregularity, and recommendation for surgery.5 Plaintiff then cites medical records from 2015 and
2016, well after her DLI, regarding her fibromyalgia and back pain.
The court agrees with the Magistrate Judge that Plaintiff’s recitation of medical records
considered by the ALJ seeks to have the court reweigh the evidence and determine the ALJ’s
decision regarding Plaintiff’s impairments was error. Notably, Plaintiff cites no cases in support
of her argument that minimal clinical findings such as hers are sufficient to establish a severe
impairment.
Plaintiff essentially argues that the record shows, and the ALJ found, she had medically
determinable impairments, and so her knee symptoms “meet step two” by showing “something
more than a slight abnormality.” ECF No. 12 at 9. However, if a claimant could meet Step Two
by merely demonstrating the existence of a medically determinable impairment, the other
requirement of Step Two, that this impairment is severe, i.e., that it “significantly limits her ability
to do basic work activities,” would be a nullity. Accordingly, a claimant is required to show both
a medically determinable impairment and that this impairment significantly limits her ability to do
basic work activities. This Plaintiff has not done. Although she points to several medically
determinable symptoms regarding her knee and fibromyalgia, she has produced no evidence these
significantly limit her ability to perform basic work functions. Mere citations to the record of pain,

The court notes Plaintiff’s objections count 29 “abnormalities” in the knee alone; however, this
appears to double count some issues, such as pain and the meniscal tear, when they are mentioned
in more than one medical note.
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swelling, “trace effusion,” cyst, and meniscal tear, among others, do not demonstrate to the ALJ
or the court that her ability to work is “significantly” limited. Importantly, she has cited to no
indications of any functional limitations that would impact her ability to work.
Plaintiff also contends the ALJ erred in considering her daily activities, including going to
the gym, moving items, and caring for her grandchildren, showed she could perform more than
light work. She argues the ALJ only mentioned these three activities; however, the ALJ went on
to discuss other activities such as laundry, driving, shopping, managing money, watching TV,
reading, and socializing with her family by visiting and going out to eat. R. at 24-25. The ALJ
therefore found Plaintiff’s daily activities “were not limited to the extent one would expect, giving
the complaints of disabling symptoms and limitations . . . [they] were not consistent with an
individual claiming to have disabling limitations.” Id. at 25. The court notes the evidence
regarding these daily activities all falls after Plaintiff’s DLI, and therefore is subject to the
deferential standard afforded the ALJ’s evaluation of post-DLI evidence. Parker v. Berryhill, 733
F. App’x 684, 687 (4th Cir. 2018). Based on this standard, and on the more fulsome discussion
by the ALJ than cited by Plaintiff, the court will not disturb the ALJ’s determination regarding
Plaintiff’s daily activities, as it is supported by substantial evidence.
For the reasons above, the court agrees Plaintiff has failed to meet her burden of producing
sufficient evidence demonstrating the severity of her impairments and their impact on her ability

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to work.6 Plaintiff’s objection regarding the determination of her impairments as non-severe is
overruled.
Conclusion
For the reasons set forth above, the court adopts the Report and Recommendation of the
Magistrate Judge and affirms the decision of the Commissioner.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
May 19, 2020

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As the court adopted the recommendation as to Step Two, it declines to consider the Magistrate
Judge’s additional finding regarding Plaintiff’s PRW.
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