Ludwig v. Commissioner of the Social Security Administration

Filing 33

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION: The Court cannot concur in the ultimate recommendation of the Magistrate Judge but incorporates the law and facts herein by reference to the extent not inconsistent with this order. The decision of the Commissioner is AFFIRMED. Signed by Honorable Bruce Howe Hendricks on 9/25/2015. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Kevin Wayne Ludwig,

) Civil Action No.: 4:14-387-BHH
)
Plaintiff, )
)
v.
)
OPINION AND ORDER
)
Carolyn W. Colvin,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant. )
______________________________ )
The plaintiff, Kevin Wayne Ludwig (“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 her claim 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 Judge Thomas
E. Rogers for pretrial handling. On April 30, 2015, the magistrate judge issued a Report
and Recommendation in which he determined that the Commissioner erred in his Step Two
analysis. (ECF No. 27 at 18.) Accordingly, the magistrate judge recommended reversing
the Commissioner’s decision. Id. at 20. The Commissioner filed Objections on May 18,
2015 (ECF No. 29). The plaintiff did not file any objections. For the reasons stated below,
the Court cannot adopt the Report and Recommendation and, therefore, affirms the
decision of the Commissioner.

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 49 years old on the date of his alleged disability onset date, due to, inter
alia, “complications from diabetes, kidney problems, poor eyesight, high blood pressure,
heart problems, chest pains, numbness in the arms and legs, [and because he] c[ould] [not]
stand for long periods of time,” he has a high school education, and past relevant work as
a drywall installer and electrician helper. (R. at 16-17, 134.) The plaintiff’s current
application was denied initially and on reconsideration. (R. at 45-52, 55-58.) A hearing
was held before an Administrative Law Judge (“ALJ”) who issued an unfavorable decision
on December 7, 2012, finding that the plaintiff was not disabled. (R. at 10-18, 20-36.) The
Appeals Council denied the plaintiff’s request for review (R. at 1-4), making the ALJ’s
decision the final decision of the Commissioner. The plaintiff subsequently filed an action
in this Court on February 13, 2014. (ECF No. 1.)
REPORT AND RECOMMENDATION
The magistrate judge recommends reversing and remanding the ALJ’s decision.
(ECF No. 27 at 20.) 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

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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
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 WL
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.

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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.
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 defendant filed objections to the Report and Recommendation (“Objections”)
on May 18, 2015 (ECF No. 29). The plaintiff made no reply. The government objects to
the magistrate judge’s conclusion that the ALJ erred in not considering the plaintiff’s visual
impairment, severe, at step two of the sequential evaluation process or considering it, at
all, at step four.1 Without conceding either, the defendant claims that any such alleged
errors are harmless. At step five of the sequential evaluation process, the ALJ relied on
the testimony of a vocational expert (“VE”) and found that the plaintiff could perform the
requirements of representative occupations in the medium exertional level such as janitor
(DOT #381.687-018), laundry worker (DOT #361.684-014), and dishwasher (DOT

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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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#318.687-010). (R. at 17.) The defendant emphasizes that medical records indicate that
the plaintiff’s corrected near sighted vision tested at 20/30 (R. at 213) and the Dictionary
of Occupational Titles (DOT) provides that the jobs identified by the VE and the ALJ do not
require “Far Acuity,” “Depth Perception,” “Accommodation” or “Field of Vision.” See DOT
381.687-018, 1991 WL 673258 (janitor); DOT 361.684-014, 1991 WL 672983 (laundry
worker); DOT 318.687-010, 1991 WL 672755 (dishwasher). The defendant, therefore,
argues that any visual impairment would not preclude the work in the national economy the
ALJ determined he could perform. The Court agrees.
But, more fundamentally, it is an inaccuracy to say that no evidence of the plaintiff’s
alleged visual impairments were considered. Some was. (R. at 15.) Insofar, as the ALJ’s
alleged failure to consider such impairments, at either step two or four, at all, is the only
grounds for remand, the Court cannot adopt the recommendation. The ALJ’s consideration
as to such impairments was not impressively thorough, but the plaintiff has not challenged
that consideration substantively other than to accuse that it did not occur in any respect.
But, it did. Id. And, the fact that some consideration occurred, in light of other generalized
comments that the ALJ considered the entire record (R. at 12, 14), is sufficient to conclude
that all relevant opinions concerning visual impairments were considered. See Reid v.
Comm’r v. Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“The Commissioner, through the
ALJ and Appeals Council, stated that the whole record was considered, and, absent
evidence to the contrary, we take her at her word.”). So, there is no error, both because
none was committed and because it would be harmless even if it had been, as described
above. The Court neither enjoys departing from the recommendation below or foreclosing
the opportunity for benefit. But, there is no error in the ALJ’s consideration of the visual

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impairments, in the ways plaintiff contends.
The ALJ declined to consider the other arguments of the plaintiff for having
recommended remand on account of the above perceived deficiency. So, the Court would
continue to consider those now.
The plaintiff’s first contention is that the ALJ “found, without explanation that Mr.
Ludwig could lift up to fifty pounds and spend almost his entire work day walking and
standing.” (Pl. Brief at 11-12.) But, the two state agency physicians who reviewed the
plaintiff’s medical records -- Drs. Jim Liao and Mary Lang – both opined that the plaintiff
could occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand
and/or walk about 6 hours in an 8-hour work day; and sit about 6 hours in an 8-hour work
day. (R. at 220, 256). These opinions (at least one of which the ALJ specifically noted he
was according significant weight) are consistent with the definition of medium work set forth
as defined in the Commissioner’s regulations. See 20 §§ CFR 404.1567(c) and 416.967(c)
(“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If someone can do medium work, we
determine that he or she can also do sedentary and light work”). The fact that the plaintiff
has offered competing evidence, in the opinion of Dr. Robinson is of no moment. See
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). As recited immediately above,
the ALJ had substantial evidence to conclude as he did and the Court will not disturb his
decision.
The plaintiff also craves appeal to the treating physician rule and insists that the ALJ
failed to incorporate functional limitations assessed by Drs. David Robinson and Jennifer
Smith into the RFC. (R. at 12-13.) First, the plaintiff contends that “the ALJ simply ignored

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the opinions of Dr. Robinson . . . .” (Pl. Brief at 13.) But, he expressly and extensively
considered them, including as to the specific opinion cited by the plaintiff that the plaintiff
could not lift or carry more than “light to moderate objects.” (R. at 15.) Second, it appears
indisputable that neither Dr. Robinson nor Dr. Smith – consultative examiners who each
saw Plaintiff a single time – could qualify as one of the plaintiff’s treating physicians. See
Ghazi v. Astrue, 2009 WL 559963, *6 (D.S.C. Mar. 4, 2009). There is no error.
The plaintiff claims that Dr. Robinson’s opinion is facially inconsistent with the RFC.
While Dr. Robinson assessed that the plaintiff “may have difficulty with prolonged standing,
walking and balancing related to poorly controlled diabetes,” he also found that the plaintiff
was “able to sit, stand and walk, without significant limitations.” (R. at 211.) He further
explained that, while the plaintiff was not a good candidate to perform heavy physical
exertion, as stated, the plaintiff was able to lift and carry light to moderate objects. (R. at
211.)

Critically, both Dr. Liao and Dr. Lang explicitly considered Dr. Robinson’s

assessment and neither found Dr. Robinson’s assessment inconsistent with the
performance of medium work. (R. at 225-26) (referencing Dr. Robinson’s opinion and
stating there are no “medical source conclusions about the claimant's limitations or
restrictions which are significantly different from [Dr. Liao’s] findings” that Plaintiff can
perform a range of medium work); (R. at 261-62) (same regarding Dr. Lang).
In terms of Dr. Smith’s opinion, the alleged visual impairments identified in her
assessment are not inconsistent with the jobs identified by the vocational expert or the ALJ.
Dr. Smith indicated that the plaintiff’s corrected nearsighted vision tested at 20/30. (R. at
213.) As noted, in terms of Plaintiff’s “Far Acuity” and “Visual Field Tr. 213-14), the DOT
provides that the jobs identified by the VE and the ALJ do not require “Far Acuity,” “Depth
Perception,” “Accommodation” or “Field of Vision.” See DOT 381.687-018, 1991 WL
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673258 (janitor); DOT 361.684-014, 1991 WL 672983 (laundry worker); DOT 318.687-010,
1991 WL 672755 (dishwasher).
The plaintiff’s final contention is that the ALJ should have not discounted his
credibility simply because his financial condition made it difficult for him to stay compliant
with his medication regimen. But, this contention ignores the numerous other reasons that
supported the ALJ’s credibility determination. (See R. at 16.) So, even if the ALJ did not
properly consider the plaintiff’s compliance with prescribe medication, substantial evidence
of other reasons still supports his credibility determination. See Ogden v. Colvin, 2014 WL
351926, at *10 (N.D. Fla. Jan 31, 2014) (“[E]ven if the ALJ erred in considering Plaintiff's
lack of ongoing and regular treatment, the error would be harmless. The other reasons
cited by the ALJ are well supported by the record . . .and the ALJ’s other reasons, standing
alone, substantially support his overall credibility findings.”).

The plaintiff has only

contested the one basis. It, alone, cannot justify remand.
CONCLUSION
Respectfully, the Court cannot concur in the ultimate recommendation of the
Magistrate Judge but incorporates the law and facts herein by reference to the extent not
inconsistent with this order. The decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
September 25, 2015
Greenville, South Carolina

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