Davis v. Commissioner of the Social Security Administration

Filing 48

ORDER RULING ON REPORT AND RECOMMENDATION: The court overrules the plaintiff's objections, incorporates the Report and Recommendation herein by reference, and hereby affirms the decision of the Commissioner denying benefits. Signed by Honorable Joseph F Anderson, Jr on 9/27/2012. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Tobby Davis,

C/A 5:11-405-JFA-KDW
Plaintiff,

v.
ORDER
Michael J. Astrue,
Commissioner of Social Security,
Defendant.
Plaintiff Tobby A. Davis brings this action pursuant to §§ 405(g) and 1383(c)(3)
of the Social Security Act, as amended, to obtain judicial review of the final decision of
the Commissioner of the Social Security Administration denying her claims for Disability
Insurance Benefits.
BACKGROUND
Plaintiff filed a disability application in June 2007. After her claim was amended,
the alleged onset date was March 1, 2007.

The plaintiff claimed disability due to

neuropathy, fibromyalgia, neck pain and limitations, carpal tunnel syndrome, back pain,
knee pain, and depression.
Following a hearing, the Administrative Law Judge (ALJ) found that the plaintiff
was not disabled because the plaintiff retained the Residual Functional Capacity (RFC) to
perform a range of unskilled, light work. Plaintiff then sought review by the Appeals
Council and submitted additional evidence thereto. This additional evidence consisted of

recently-drafted letters from Dr. Preston Bishop and Dr. Delfin Valite. The Appeals
Council denied review, and the plaintiff filed the instant action.
In accordance with established procedures in this district, the matter was referred
to the Magistrate Judge for a Report and Recommendation.1 The Magistrate Judge
carefully reviewed the record in this action after receiving briefing from both sides. She
then rendered a comprehensive Report and Recommendation setting forth in great detail
the medical problems plaintiff experienced and analyzing her claim for disability under
existing law. Based on this analysis, the Magistrate Judge recommends that this court
affirm the Commissioner’s decision to deny benefits. Her Report sets forth in detail the
relevant facts and standards of law on this matter, and the court incorporates such without
a recitation.
The parties were advised of their right to submit objections to the Report and
Recommendation, which was filed on July 31, 2012. The plaintiff has filed objections to
the Report and the Commissioner has replied thereto. Thus, it appears this matter is ripe
for review.
DISCUSSION
Initially, it should be noted that the ALJ found that plaintiff had received treatment
for the allegedly disabling symptoms she has experienced. And importantly, the ALJ
1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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 the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

concluded that the record shows that the treatment has been generally successful in
controlling these symptoms. In regard to the plaintiff’s credibility as it relates to the
treatment she received, the ALJ detailed how the plaintiff repeatedly and consistently
denied alcohol and drug abuse to most of her medical providers. Ultimately, however, in
2009, the plaintiff reported to Dr. Diehl that she “began drinking quite early in life,
probably when she was five years of age. She also gave a significant history of drug
abuse although she said her husband tended to keep her from using drugs excessively.”
(See ALJ Report, ECF No. 14-2, at 27).
The ALJ found that there is substantial evidence that until 2009, the plaintiff
“deliberately concealed her history of alcohol/drug abuse from all treating and examining
sources at times when she was actively seeking mental health treatment and when her
admission of such a history would have changed her treatment plan.” Id. The ALJ
concluded that this development “significantly detracts from the credibility of [plaintiff’s]
allegations as to the severity of her other impairments.” Id.
The plaintiff’s objection memorandum identifies two alleged deficiencies in the
Magistrate Judge’s Report and Recommendation. The arguments advanced on behalf of
these two points of error generally mirror the arguments made to, and rejected by, the
Magistrate Judge.
Plaintiff first contends that the ALJ improperly found that plaintiff’s interstitial
cystitis (IC) was “not severe.” This court agrees with the Commissioner that the ALJ
carefully considered the “entire record” and reasonably included any limitations that
plaintiff might experience from this impairment in his finding that limited the plaintiff to

performing a range of unskilled, light work. Moreover, the burden of proof is on the
plaintiff to prove that an alleged impairment is severe, and in this case, the court agrees
with the Magistrate Judge that plaintiff has provided no objective evidence of functional
limitations associated with her IC prior to the expiration of her insured status.
The second principal ground of error alleged in plaintiff’s objection memorandum
relates to the new material submitted to the Appeals Council. Relying upon the recent
Fourth Circuit case of Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2001), plaintiff contends
that the administrative decision maker has not weighed the new evidence and that this
case should be remanded for further evaluation. Meyer was a watershed decision in the
Fourth Circuit on an issue that had been subject to open debate for several years in this
circuit. In Meyer, the plaintiff contended that the Appeals Council must make its own
finding and articulate its own assessment as to new evidence when denying review. Id. at
704. The Fourth Circuit disagreed, holding that the regulatory scheme applicable to
social security disability cases does not require the Appeals Council to do anything more
than “consider new and material evidence . . . in deciding whether to grant review.” Id. at
706 (quoting Wilkins v. Sec’y, Dept. Health & Human Servs., 953 F.2d 93, 95 (4th Cir.
1991)).

The court reasoned that nothing in the statutes or regulations requires the

Appeals Council to articulate its reasoning when new evidence is submitted and the
Appeals Council denies review. Id. at 705–06.
Although the Meyer court indicated that the Appeals Council did not have to
articulate its own assessment, it did suggest that in certain cases, remand is appropriate.
Under the particular facts presented in Meyer, the court of appeals determined that the

new evidence in that case was not “one-sided” and that upon consideration of the record
as a whole, the court could not determine whether substantial evidence supported the
ALJ’s denial of benefits. Id. at 707. In Meyer, the ALJ determined that the record lacked
certain evidence the ALJ deemed critical; the plaintiff subsequently obtained this
evidence and presented it to the Appeals Council. Id. On this record, the Fourth Circuit
concluded that “no factfinder has made any findings as to the treating physician’s opinion
or attempted to reconcile that evidence with the conflicting and supporting evidence in
the record.” Id. Because “[a]ssessing the probative value of competing evidence is
quintessentially the role of the fact finder,” the case had to be remanded to the ALJ for
further fact finding. Id.
This court has, on occasion, deemed it appropriate to remand a case for further fact
finding relying upon the precedent established in Meyer. See Neighbors v. Astrue, C/A
No. 8:11-170-JFA-JDA (D.S.C.) (Order dated July 30, 2012). In the case presently
before the court, however, the undersigned has determined that the Magistrate Judge was
correct in suggesting that a remand is not called for.
First, this court disagrees with the plaintiff that the Magistrate Judge incorrectly
stated the law as to remand. According to the plaintiff, the Magistrate Judge herself
inadvertently weighed the evidence and performed a task that was reserved for the
administrative factfinder. Evidence of this improper fact finding is said to be found in the
Magistrate Judge’s statement that, for a remand to be in order, there must be a finding
that the new evidence “would have” changed the result. According to plaintiff, the
proper standard under Meyer is whether the new evidence “might have” made a

difference. This court rejects the plaintiff’s reading of Meyer. The Magistrate Judge
appropriately applied the correct standard and quoted the critical language from Meyer
regarding remand.
Moreover, unlike Meyer, the letters submitted by the two medical professionals in
this case did not fill in an evidentiary gap that played a role in the decision of the ALJ.
The record discloses that one of the letters was actually drafted by counsel for the
plaintiff and submitted to the treating physician for his review and signature. There is
little in the submissions of either physician that is not cumulative to the evidence already
established in the case before the ALJ.
CONCLUSION
It is the duty of the ALJ reviewing the case, and not the responsibility of the
courts, to make findings of fact and resolve conflicts in the evidence. This court’s scope
of review is limited to the determination of whether the findings of the Commissioner are
supported by substantial evidence taking the record as a whole, Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996), and “whether the correct law was applied,” Walls v. Barnhart,
296 F.3d 287, 290 (4th Cir. 2002).
For the foregoing reasons, the court overrules the plaintiff’s objections,
incorporates the Report and Recommendation herein by reference, and hereby affirms the
decision of the Commissioner denying benefits.
IT IS SO ORDERED.
September 27, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge