Burbage v. Commissioner of the Social Security Administration

Filing 31

ORDER adopting 24 Report and Recommendation. The decision of the Commissioner is AFFIRMED. Signed by the Honorable Bruce Howe Hendricks on 1/15/2016. (hcic, ) Modified on 1/15/2016 to correct text (hcic, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jan Katherine Burbage,

) Civil Action No.: 4:14-3237-BHH
)
Plaintiff, )
)
)
OPINION AND ORDER
v.
)
)
Carolyn W. Colvin, Commissioner of
)
Social Security,
)
Defendant. )
______________________________ )
)
Plaintiff Jan Katherine Burbage (“Plaintiff”) brought this action pursuant to 42
U.S.C. § 1383(c)(3) to obtain judicial review of a final decision of Defendant
Commissioner of Social Security (“Commissioner”), denying her claim for Disability
Insurance Benefits (“DIB”) under Title II of 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, III, for
pretrial handling. On November 30, 2015, the Magistrate Judge issued a Report and
Recommendation (“Report” or “R&R”) in which he determined that Plaintiff did not show
that the Commissioner’s decision was unsupported by substantial evidence or reached
through application of an incorrect legal standard. Accordingly, the Magistrate Judge
recommended affirming the Commissioner’s decision. (ECF No. 24.) Plaintiff filed
Objections on December 17, 2015 (ECF No. 26), and on January 7, 2016, the
Commissioner filed a Reply (ECF No. 28). For the reasons stated below, the Court
adopts the Report and affirms the Commissioner’s decision.

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FACTUAL AND PROCEDURAL BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and
standards of law on this matter, and the Court incorporates them and summarizes
below in relevant part. Plaintiff was 54 years old on her alleged disability onset date and
has past relevant work experience as a network administrator. (R. at 21.) On July 29,
2011, Plaintiff filed an application for DIB benefits alleging a disability since April 2,
2004,1 due to fibromyalgia and related symptoms, confusion, memory loss, lack of
concentration and emotional issues, which was denied initially and on reconsideration.
(R. at 105–111, 126–130, 113–125, 134–136, 176, 181.) A hearing was held before an
Administrative Law Judge (“ALJ”) who issued an unfavorable decision on April 5, 2013,
finding Plaintiff was not disabled under the Act. (R. at 11–23.) The Appeals Council
denied Plaintiff’s request for review (R. at 1–6), making the ALJ’s decision the final
decision of the Commissioner. Plaintiff subsequently filed an action in this Court on
August 12, 2014. (ECF No. 1.)
REPORT AND RECOMMENDATION
The Magistrate Judge recommends affirming the ALJ’s decision. (ECF No. 24 at
37.) 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 may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to him

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Plaintiff later amended her alleged disability onset date to her date last insured, December 31, 2009. (R.
at 11, 222.)

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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 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

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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. 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 115758.
DISCUSSION
Plaintiff filed objections to the Report and Recommendation (“Pl. Obj.”) on
December 17, 2015 (ECF No. 26), and the Commissioner filed a reply on January 7,
2016 (ECF No. 28). Plaintiff objects to the Magistrate Judge’s recommendation
concerning the ALJ’s alleged failure: (1) in finding that Plaintiff’s mental impairments of
depression and attention deficit disorders were not severe; (2) to properly consider the
treatment records and their support of the opinions of Plaintiff’s treating physician; and

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(3) to properly evaluate Plaintiff’s credibility. The Court will now consider each specific
objection in turn.2
Plaintiff first argues that the Magistrate Judge was wrong to affirm the ALJ’s
determination that her mental impairments were non-severe. Specifically, she objects
that the Magistrate Judge engaged in post-hoc reasoning, failed to consider certain
testimony regarding Plaintiff’s depression, and “fail[ed] to point to the ALJ’s
consideration of [Plaintiff’s] depression within the RFC discussion.” (Pl. Obj. 1–2.)
Contrary to Plaintiff’s assertion, the Magistrate Judge relied on largely the same
reasoning as the ALJ in finding that Plaintiff’s mental impairments were non-severe.
Both the Magistrate Judge and the ALJ noted that Plaintiff’s depression was managed
with appropriate care and that Plaintiff’s mental impairments did not cause any
significant functional limitations on her ability to perform basic work. (R. at 14; R&R at
24–35.) Further, the Magistrate Judge explicitly considered Plaintiff’s hearing testimony
that she did not understand how she could be depressed given her good job and good
marriage. (R&R at 15.) Likewise, the Magistrate Judge skillfully addressed the fact that
the ALJ analyzed Plaintiff’s mental impairments “in fashioning Plaintiff’s RFC.” (Id. at
26.) In short, the ALJ expressed specific, well-articulated findings regarding the nonseverity of Plaintiff’s mental impairments, and the Magistrate Judge committed no error
in finding the ALJ’s decision to be supported by substantial evidence in this respect.
Plaintiff next objects to the Magistrate Judge’s recommendation that the ALJ
properly supported the weight accorded to Plaintiff’s treating physician, Dr. Robert

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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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Callis, M.D. (“Dr. Callis”). (Pl. Obj. 2–5.) The Court has considered Plaintiff’s arguments
on this issue de novo and finds them to be largely duplicative exactly of arguments
already raised and adequately addressed by the recommendation. The Magistrate
Judge addressed each of Plaintiff’s arguments at length, first quoting the ALJ’s
assessment of Dr. Callis’ opinion, and then discussing how this assessment found
support both in the ALJ’s decision and the record as a whole. (R&R at 26–32.) The
Court finds the Magistrate Judge’s treatment of these arguments to be thorough and
accurate, and is satisfied that the ALJ’s assessment of Dr. Callis’ opinion is supported
by substantial evidence.
Plaintiff also argues here that the Magistrate Judge engaged in post-hoc
reasoning when he found that the ALJ appropriately discounted Dr. Callis’ opinion that
Plaintiff was unemployable. (Pl. Obj. 2–3.) However, the Magistrate Judge was correct
in concluding that a finding of inability to work is reserved to the Commissioner. See 20
C.F.R. § 404.1527(d) (“A statement by a medical source that you are “disabled” or
“unable to work” does not mean that we will determine that you are disabled.”). Further,
the Magistrate Judge offered a number of other valid reasons to discount Dr. Callis’
opinion, echoing reasons given in the ALJ’s decision. (R&R at 28–32.) Thus, there is no
error.
Finally, Plaintiff objects to the Magistrate Judge’s consideration of the ALJ’s
credibility assessment. Specifically, Plaintiff argues that the Magistrate Judge “simply
repeats the ALJ’s findings” and “does not respond to the evidence” that Plaintiff saw
specialists in addition to Dr. Callis. (Pl. Obj. 5–6.) Contrary to Plaintiff’s assertions, the
Magistrate Judge engaged in a thoughtful and thorough analysis of the ALJ’s credibility

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assessment. He discussed the ALJ’s assessment in detail, finding that the ALJ
“considered both objective and subjective evidence in making his credibility
determination. . . . [and] adequately considered how Plaintiff’s impairments affected her
routine.” (R&R at 36.) Further, it is clear that the Magistrate Judge did not ignore
evidence of Plaintiff’s visits with specialists, as he specifically discussed these visits
when recounting Plaintiff’s background and medical history. (R&R at 2–15.) Accordingly,
the Court finds that the Magistrate Judge correctly found that the ALJ’s decision to
discount Plaintiff’s credibility was supported by substantial evidence.
CONCLUSION
The Court has carefully reviewed the record, including the findings of the ALJ,
Plaintiff’s objections to the Report and Recommendation, and Defendant’s reply. The
Court concurs in the recommendation of the Magistrate Judge that substantial evidence
in the record supports the decision of the Commissioner and thus adopts the Report
and Recommendation, incorporating 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
January 15, 2016
Greenville, South Carolina

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