Mcabee v. Commissioner of Social Security Administration

Filing 21

ORDER RULING ON 16 REPORT AND RECOMMENDATION The court adopts the Report (ECF No. 16), and the Commissioner's decision is affirmed. Signed by Honorable Timothy M Cain on 08/22/2017. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Carl Eugne McAbee, Jr.,
Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 2:16-0457-TMC

ORDER

The plaintiff, Carl Eugene McAbee, Jr. (“McAbee”), brought this action pursuant to the
Social Security Act (“SSA”), 42 U.S.C. § 405(g), seeking judicial review of a final decision of
the Commissioner of Social Security (“Commissioner”), denying his claim for Disability
Insurance Benefits (“DIB”).1 In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling.
Before this court is the magistrate judge’s Report and Recommendation (“Report”),
recommending that the court affirm the Commissioner’s decision. (ECF No. 16).2 In the Report,
the Magistrate Judge sets forth the relevant facts and legal standards, which are incorporated
herein by reference. McAbee has filed objections to the Report (ECF No. 18), and the
Commissioner has responded to those objections (ECF No. 19). Accordingly, this matter is now

Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration on
January 27, 2017. Pursuant to Fed.R.Civ.P.25(d), Berryhill is substituted for Carolyn W. Colvin
as the defendant in this action.
1

The magistrate judge's recommendation has no presumptive weight, and the responsibility for
making a final determination remains with the United States District Court. Mathews v. Weber,
423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of those
portions of the Report to which specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by the magistrate judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
2

1

ripe for review.
I. Background
McAbee applied for DIB on February 19, 2014, alleging disability beginning on
December 24, 2013. (ECF No. 9-5 at 2-3). McAbee’s application was denied initially and on
reconsideration. On July 27, 2015, an Administrative Law Judge (“ALJ”) heard testimony from
McAbee and a vocational expert. On October 23, 2015, the ALJ issued a decision denying
McAbee’s claim.
In his decision, the ALJ found that McAbee suffered from the following severe
impairments: mitral valve regurgitation and congestive heart failure. (ECF No. 9-2 at 12). The
ALJ found that, despite McAbee’s limitations, jobs existed in significant numbers in the national
economy that he could perform. (ECF No. 9-2 at 18). McAbee sought review of his case by the
Appeals Council. The Appeals Council denied McAbee’s request for review, making the ALJ’s
decision the final decision of the Commissioner. This action followed.
II. Standard of Review
The federal judiciary has a limited role in the administrative scheme established by the
SSA. 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). Thus, in its review,
the court may not “undertake to re-weigh conflicting evidence, make credibility determinations,

2

or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
However, “[f]rom this it does not follow . . . 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). Rather, “the 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.
III. Discussion
In his objections, McAbee asserts that the Magistrate Judge erred by finding that the
ALJ’s credibility determination and the ALJ’s decision to reject the opinions of a treating
physician, Dr. Roberts, were supported by substantial evidence.
A. Credibility
In assessing his credibility, McAbee contends that the ALJ did not fairly weigh all of the
evidence before him. McAbee acknowledges his heart failure symptoms were intermittent, but
he contends that his condition severely limited his daily activities. He also contends that the ALJ
and the Magistrate Judge believed that had McAbee simply taken his medication every day, he
would have no limitations. He states the record does not support such a belief.

While

acknowledging that he testified at the hearing that Lasix effectively controlled many of his
symptoms, McAbee contends that he also testified that he frequently could not afford Lasix, and
he argues that it makes no difference if his symptoms could be cured or stabilized with a
treatment he could not afford.

3

Reviewing McAbee’s testimony, he testified that when his legs swell, he has to take his
medication, lay down, and elevate his legs. (ECF No. 9-2 at 42). He did not testify that he could
not afford the medication for his edema. He further stated that “if I’m on the Lasix it’ll keep the
swelling down, and your knees or your feet it’s like pins and needles. ” (ECF No.l 9-2 at 43-44).
McAbee stated that he received some of his prescription drugs for free,
but then there’s things like Lasix and other things that they prescribe to me that
costs. Like I’m supposed to be on Lipitor for cholesterol. I can’t afford that. I
haven’t taken that pill in probably nine, ten months. So, I don’t even know what
my cholesterol is right now, because it’s like $193 or something like that.
There’s no way. I don’t have that.
(ECF No. 9-2 at 40). Contrary to what McAbee now argues, he did not testify that he could not
afford Lasix - it was the Lipitor which he stated he could not afford because it was $193 per
month. However, assuming McAbee could not afford to purchase Lasix for his edema, the court
finds the ALJ did not err in his credibility determination.
Where a claimant cannot afford medical treatment, they must “show that he has
exhausted all free or subsidized sources of treatment and document his financial circumstances
before inability to pay with be considered good cause [for failing to seek treatment].” Gordon v.
Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) (citing Social Security Ruling 82-59). In Gordon,
the Court states that before a claimant can be denied disability benefits due to failure to obtain
treatment, the claimant must be given a reasonable opportunity to do so or provide justification
for failing to do so. See Gordon, 725 F.2d at 237. However, McAbee was not denied disability
benefits because he failed to obtain treatment.
Moreover the issue of inability to pay or failure to obtain treatment was not a factor in the
ALJ's credibility determination. The ALJ set out McAbee’s daily activities and noted that, when
viewed in conjunction with other inconsistencies, limit McAbee’s credibilty. (ECF No. 9-2 at

4

16). As the Magistrate Judge noted, even though McAbee testified that he had swelling on a
daily basis, his medical records simply did not reflect significant edema even during the period
of time when McAbee did not have insurance and argues he could not afford medication.
Moreover, any perceived oversight by the ALJ regarding McAbee’s inability to pay would be
harmless error due to the thorough consideration of other factors impacting credibility. See King
v. Colvin, No. 6:12-cv-3043, 2014 WL 906795 (D.S.C. Mar. 7, 2014) (“The court agrees with
[Plaintiff] that her inability to afford care may be a sufficient reason for failing to seek treatment,
however, the court finds that, in this case, the ALJ's interpretation of this one factor was
harmless error. [Plaintiff's] failure to seek further medical treatment was one factor the ALJ
considered, but not the only factor or even the deciding factor.”).
B. Treating Physician’s Opinion
McAbee contends that the ALJ erred in rejecting the opinion of his treating physician,
Dr.Charles Roberts. McAbee notes that the only reaon the ALJ had for rejecting Dr. Roberts’
opinions was because a physician at MUSC rated McAbee’s heart failure differently, and
McAbee had too many daily activities during the times when his intermittent symptoms were
less severe.
An ALJ's determination as to the weight to be assigned to a medical opinion generally
will not be disturbed absent some indication that the ALJ has dredged up “specious
inconsistencies,” Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has failed to give
a sufficient reason for the weight afforded a particular opinion, see 20 C.F.R. § 404.1527(d)
(1998). Of course, a medical expert's opinion as to whether one is disabled is not dispositive;
opinions as to disability are reserved for the ALJ and for the ALJ alone. See 20 C.F.R. §
404.1527(e)(1) (1998). Generally, the more the medical source presents relevant evidence to

5

support his opinion, and the better that he explains it, the more weight his opinion is given. See
20 C.F.R. § 404.1527(d)(3) (1998). Additionally, the more consistent the opinion is with the
record as a whole, the more weight the ALJ will give to it. See 20 C.F.R. § 404.1527(d)(4)
(1998).
Moreover, the function of this court is not to review McAbee’s claims de novo or to
reweigh the evidence of record. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)
(citing 42 U.S.C. § 405(g); and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)).
Rather, this court is to determine whether, upon review of the whole record, the ALJ’s decision
is supported by substantial evidence and a proper application of the law. See Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990); see also 42 U.S.C. § 405(g).
Here, the court finds that the ALJ properly considered the opinions, and substantial
evidence supports the weight afforded to those opinions. See Johnson v. Barnhart, 434 F.3d
650, 656 n.8 (4th Cir. 2005) (stating that ALJ can give lesser weight to a treating physician’s
opinion when it conflicts with other medical evidence or when it represents a change in opinion
without a change in diagnosis); see also 20 C.F.R. § 404.1527(d)(1) (indicating that opinions
about whether a claimant is “disabled” or “unable to work” are specifically reserved to the
Commissioner). Moreover, McAbee has failed to show that the medical records support the
opinions of his treating physician. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (stating that
the claimant has the burden of proving he suffers from a “medically determinable impairment”).
IV. Conclusion
Having conducted the required de novo review of the issues to which McAbee has
objected, the court finds no basis for disturbing the Report. The court concurs with both the
reasoning and the result reached by the magistrate judge in her Report, and the ALJ’s decision is

6

supported by substantial evidence. Therefore, the court adopts the Report (ECF No. 16), and the
Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
August 22, 2017
Anderson, South Carolina

7