Hendrix v. Commissioner of the Social Security Administration
Filing
36
ORDER RULING ON REPORT AND RECOMMENDATION: The Court ACCEPTS the Magistrate Judge's Report [Dkt. No. 30]. The Commissioner's final decision is AFFIRMED. Signed by Honorable J Michelle Childs on 6/3/2013. (gnan )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Nancy N. Hendrix,
)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin,
)
Acting Commissioner of the Social Security )
Administration,
)
)
Defendant.
)
___________________________________ )
Civil Action No.: 5:12-cv-01353-JMC
OPINION AND ORDER
This matter is before the court for review of the Magistrate Judge’s Report and
Recommendation (“Report”) [Dkt. No. 30], regarding Plaintiff Nancy N. Hendrix’s (“Plaintiff”)
claim for Disability Insurance Benefits (“DIB”). Plaintiff filed the instant action seeking judicial
review of the final decision of the Commissioner of the Social Security Administration
(“Commissioner”) pursuant to 42 U.S.C. § 405(g). The Magistrate Judge concluded that the
findings of the Administrative Law Judge (“ALJ”) were supported by substantial evidence and
that the ALJ applied the proper legal standards. As a result, the Magistrate Judge recommends
that the court affirm the Commissioner’s final decision.
Plaintiff timely filed Objections to the Magistrate Judge’s Report (“Objections”) on May
5, 2013 [Dkt. No. 32], to which the Commissioner filed a Reply [Dkt. No. 34]. For the reasons
set forth below, the court ACCEPTS the Magistrate Judge’s Report and AFFIRMS the
Commissioner’s final decision.
1
PROCEDURAL BACKGROUND
The court concludes, upon its own careful review of the record, that the factual
summation in the Magistrate Judge’s Report is accurate, and the court adopts this summary as its
own. However, a brief recitation of the procedural background in this case is warranted.
Plaintiff applied for DIB on December 27, 2005, alleging that she has been disabled and
unable to work since May 23, 2005, due to limitations caused by pain in her lower back, right
shoulder, and left ankle.
An ALJ conducted a hearing on November 25, 2008, denying
Plaintiff’s application for DIB on March 2, 2009. Plaintiff appealed the ALJ’s decision to the
Appeals Council, which vacated the initial decision and remanded the case to a new ALJ.
Following a new hearing, the ALJ issued a decision that partially granted Plaintiff’s DIB
application on October 29, 2010. The ALJ found that Plaintiff was not disabled prior to June 27,
2009, but had become disabled on that date, when she turned fifty years old, because her age
category for purposes of the disability analysis had changed. More specifically, the ALJ found
that prior to June 27, 2009, Plaintiff had the residual functional capacity (“RFC”) to perform jobs
that existed in significant numbers in the national economy. Plaintiff requested review of the
new decision by the Appeals Council, which this time denied the appeal on May 11, 2012,
rendering the ALJ’s decision as the Commissioner’s final decision. On May 22, 2012, Plaintiff
commenced this action seeking a review of the Commissioner's decision to deny partially her
DIB application [Dkt. No. 1].
STANDARD OF REVIEW
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.
The recommendation has no presumptive weight.
2
The
responsibility to make a final determination remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one.
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 innumerable times
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. See Vitek v. Finch, 438 F.2d 1157
(4th Cir. 1971). The court must uphold the Commissioner’s decision as long as it is supported by
substantial evidence. See Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002); Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “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
agency.” Flack v. 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 this conclusion is rational.” Vitek, 438 F.
2d at 1157-58.
3
DISCUSSION
Plaintiff raises two objections to the Magistrate Judge’s Report.1 The crux of both
objections is that the Report incorrectly found that the ALJ properly considered different pieces
of evidence proffered by Plaintiff. Namely, the ALJ improperly considered the following: 1) an
order of the South Carolina Workers’ Compensation Commission (“SCWCC”) approving the
settlement of Plaintiff’s worker’s compensation claim with a payment of $70,000; and 2) the
opinions of Doctors Seastrunk and Stewart who performed evaluations of Plaintiff in connection
with her worker’s compensation claim.
SCWCC Settlement Order
Plaintiff objects that the Report erroneously affirms the weight and consideration the ALJ
gave to the SCWCC’s settlement order and that the settlement order demonstrated that she was
in fact permanently disabled. Generally, the Commissioner must give substantial weight to
disability determinations of other governmental agencies when making a similar determination.
See Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 343–44 (4th Cir. 2012); Hicks v.
Gardner, 393 F.2d 299, 302 (4th Cir. 1968) (citing Hayes v. Celebrezze, 311 F.2d 648, 654 (5th
Cir. 1963)). Here, the SCWCC approved a settlement of $70,000 “represent[ing] one hundred
percent (100%) permanent partial disability to [Plaintiff’s] left lower extremity” among other
claims [R. at 220]. The ALJ’s consideration of the settlement order, as explained in the Report,
is contained in two statements [see Dkt. No. 30 at 24]. First, the ALJ stated that he carefully
considered all of the evidence in the record; second, he noted the settlement of the worker’s
compensation claim, including the award amount [id.]. The Report found that these statements
1
Plaintiff’s initial brief listed the opinion of each doctor as separate issues [Dkt. No. 20 at 1], and the Magistrate
Judge’s Report analyzed them separately [Dkt. No. 30 at 26–30]. However, Plaintiff, in her Objections, combines
these opinions into one objection [Dkt. No. 32 at 2–3]. For convenience, this Opinion and Order will analyze the
opinions together.
4
sufficiently indicated that the ALJ duly considered the settlement order. The Report emphasized
that the determinations of other agencies are not binding on the Commissioner, DeLoatche v.
Heckler, 715 F.2d 148, 150 n.1; that the ALJ was not required to provide a written evaluation of
every piece of evidence, Jackson v. Astrue, No. 8:08-2855-JFA-BHH, 2010 WL 500449, at *10
(D.S.C. Feb. 5, 2010) (citing Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)); and that the
ALJ’s failure to cite specific evidence is not an indication that the evidence was not considered,
id.
Plaintiff argues the ALJ’s statements were insufficient because they do not indicate that
he actually considered the SCWCC settlement order. Plaintiff contends that the settlement
order’s reference to a 100 percent permanent partial disability of her left leg constituted an
“explicit finding” of the SCWCC [Dkt. No. 32 at 2]. According to Plaintiff, by failing to address
this specific finding, the ALJ did not properly consider the substantial weight that the SCWCC
settlement order should have received, and the Report should have found so [id.].
The Commissioner contends that Plaintiff waived this argument. Plaintiff’s original
argument in her Brief (“Opening Brief”) [Dkt. No. 20] concerning the SCWCC settlement order
was that the ALJ’s failure to mention the specific award amount2 and the medical opinions on
which the settlement was based indicated the ALJ had failed to weigh and consider the
settlement order. Only later did Plaintiff argue that the ALJ’s failure to weigh and consider the
settlement was indicated by his failure to mention the SCWCC’s “explicit finding” of permanent
partial disability. This argument was first raised in Plaintiff’s Response Brief [Dkt. No. 26 at 1–
2]. The Commissioner contends that Plaintiff’s second argument is a “new argument,” and,
because Plaintiff did not raise it in her Opening Brief, she may not now raise it in this court’s
2
Plaintiff’s claim that the ALJ did not mention the amount of the settlement award [Dkt. No. 20 at 6] is factually
false [R. at 22] and was apparently abandoned [see Dkt. No. 26 at 1–2].
5
review of the Magistrate Judge’s Report. For support, the Commissioner cites Marshall v.
Chater for the proposition that “[i]ssues raised for the first time in objections to the magistrate
judge’s recommendation are deemed waived.” 75 F.3d 1421, 1426 (10th Cir. 1996). The
Commissioner also cites Hunt v. Nuth, which states that “appellate courts generally will not
address new arguments raised in a reply brief because it would be unfair to the appellee and
would risk an improvident or ill-advised opinion on the legal issues raised.” 57 F.3d 1327, 1338
(4th Cir. 1995).
There are three problems with the Commissioner’s view. First, Plaintiff initially raised
the argument not in her Objections but in her Response Brief, which she filed prior to the
Magistrate Judge’s recommendations. Consequently, Marshall’s waiver rule does not apply.
Second, it is not clear whether Hunt’s waiver rule applies where the “appellate” court at issue is a
district court reviewing a magistrate judge’s report and where the reply brief at issue is one that
was before the court below, such that defendants have had ample opportunity to respond to the
argument.3 Third, it is not clear whether Plaintiff’s “new argument” constitutes a type of
pleading that could trigger the waiver rules above. “[A]s part of its obligation to determine de
novo any issue to which proper objection is made, a district court is required to consider all
arguments to that issue, regardless of whether they were raised before the magistrate.” United
States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). In other words, parties may not raise new
claims in their objections to a magistrate judge’s report, but the district court must consider new
arguments respecting any existing claims. See Foster v. BNP Residential Props. Ltd. P’ship, No.
3
The Court of Appeals for the Fourth Circuit, in its cases applying the waiver rule described in Hunt, characterizes
the rule as part of its “prudential doctrines,” indicates that the argument at issue was not in the party’s opening brief
for the appellate court, and emphasizes the inability of the opposing party to respond to the argument and the court
below to consider it. See United States v. Cone, Nos. 11-4888, 11-4934, 2013 WL 1502007, at *17 (4th Cir. April
15, 2013); United States v. Wright, 374 Fed. App’x 386, 391 (4th Cir. 2010); United States v. Ancrum, 161 Fed.
App’x 258, 259–60 (4th Cir. 2006).
6
2:06-cv-2440-PMD-RSC, 2008 WL 512788, at *5–6 (D.S.C. Feb. 25, 2008). The question, of
course, would be whether to characterize Plaintiff’s claim—that the ALJ’s failure to cite the
“explicit finding” of the SCWCC settlement order constituted a failure to consider the order—as
a new claim or as a new argument respecting an existing claim.
The court need not resolve these problems. Even assuming that Plaintiff has not waived
her argument for the reasons above, two additional points weigh against Plaintiff. First, the
argument does not merit de novo review by this court for another reason. Objections to a report
and recommendation must specifically identify portions of the report and the bases for those
objections. FED. R. CIV. P. 72(b). “Parties are deemed to have waived an objection to a
magistrate judge’s report if they do not present their claims to the district court.” United States
v. Benton, 523 F.3d 424, 428 (4th Cir. 2008). Furthermore, “a general objection to a magistrate
judge’s findings is not sufficient—‘a party must object to the [magistrate’s] finding or
recommendation . . . with sufficient specificity so as to reasonably alert the district court of the
true ground for the objection.’” Id. (quoting United States v. Midgette, 478 F.3d 616, 621 (4th
Cir. 2007) (alterations in original)). General objections include those that merely restate or
reformulate arguments a party has made previously to a magistrate judge. See Jackson v. Astrue,
No. 1:09-cv-467, 2011 WL 1883026 (W.D.N.C. May 17, 2011); Aldrich v. Bock, 327 F. Supp.
2d 743, 747 (E.D. Mich. 2004). Such objections, stating no more than a general disagreement
with the magistrate judge’s findings, do not alert the court to errors and are thus not accurately
labeled as “objections.” See Jackson, 2011 WL 1883026; Aldrich, 327 F. Supp. 2d at 747.
Examining anew arguments already assessed in the report of a magistrate judge would waste
judicial resources; parties must explain why the magistrate judge’s report is erroneous, rather
7
than simply rehashing their prior filings and stating the report’s assessment was wrong. See
Albourque v. Bradshaw, No 1:11-cv-1506, 2013 WL 775080, at *5 (N.D. Ohio Feb. 28, 2013).
If a party fails to properly object because the objections lack the requisite specificity, de
novo review by the court is not required. See Brooks v. James, No. 2:10-2010-MBS, 2011 WL
4543994, at *2 (D.S.C. Sept. 30, 2011); Veney v. Astrue, 539 F. Supp. 2d 841, 846 (W.D. Va.
2008). In the absence of a proper objection, the court must “‘only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.’” See Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005) (quoting FED. R. CIV. P. 72
advisory committee’s note); see also Thomas v. Arn, 474 U.S. 140, 148–53 (1985).
Here, Plaintiff’s objection restates, almost verbatim, the argument made to the Magistrate
Judge in Plaintiff’s Response Brief [compare Dkt. No. 26 at 1–2 with Dkt. No. 32 at 1–2].
Plaintiff does not explain why the Report’s conclusion—that the ALJ had properly considered
the SCWCC settlement order—was incorrect beyond merely restating the same position it
maintained before the Magistrate Judge. Having done no more than restate an argument already
made, Plaintiff’s first objection does not merit de novo review. Instead, the Report’s conclusion
will be accepted absent clear error on its face. The court finds no clear error; therefore, it accepts
the Report’s conclusion that the ALJ properly considered the SCWCC settlement order.
Second, even if it did conduct a de novo review, the court would reach the same
conclusion as did the Magistrate Judge in her Report. Decisions of other governmental agencies
deserve consideration, but they are not binding on the Commissioner. An ALJ need only
“‘minimally articulate’ his reasoning so as to ‘make a bridge’ between the evidence and his
conclusions.’” Jackson, 2010 WL 500449, at *10 (citations omitted). Here, the ALJ satisfied
this requirement by stating that he carefully considered all of the evidence and noting the
8
settlement order from the SCWCC. The ALJ’s decision and the consideration he gave to the
settlement order are supported by substantial evidence.
Opinions of Doctors Seastrunk and Stewart
Plaintiff also objects that the Report incorrectly upheld the consideration the ALJ gave to
the opinions of Doctors Seastrunk and Stewart. At the request of Plaintiff’s counsel, both
doctors examined Plaintiff in connection with her SCWCC worker’s compensation claim, and
they respectively opined that Plaintiff was “totally disabled” and “unable to work” [Dkt. No. 30
at 12–13, 27–28]. The ALJ rejected these opinions and assigned them no weight [id. at 27– 29;
R. at 25–26]. In his analysis, the ALJ found that the doctors’ opinions relied almost exclusively
on Plaintiff’s subjective complaints, used minimal objective findings for corroboration, and
diagnosed Plaintiff with medical problems that were not discovered in previous examinations or
supported by objective diagnostic studies [R. at 25–26].
The ALJ also noted that these
examinations were in connection with Plaintiff’s worker’s compensation claim and that
Plaintiff’s attorney had scheduled and paid for at least one of the examinations [id. at 18, 25–26].
The Magistrate Judge’s Report found that the ALJ’s decision to accord no weight to these
opinions was supported by substantial evidence. The ALJ, not the reviewing court, has the duty
to resolve contradictory opinions and facts in the record. Richardson v. Perales, 402 U.S. 389,
399 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (1990). The ALJ evaluated not only the
opinions of Doctors Seastrunk and Stewart, but also the opinions of other physicians and
evidence from Plaintiff’s own testimony, which tended to contradict the opinions of Doctors
Seastrunk and Stewart [R. 21–26]. Thus, the Report concluded that the ALJ had properly
considered the contested opinions [Dkt. No. 30 at 27–30].
9
Plaintiff correctly points out that a medical opinion may not be discounted merely
because of the purpose for which it was obtained or because counsel requested it. See Reddick v.
Chater, 157 F.3d 715, 726 (9th Cir. 1998); Blankenship v. Bowen, 874 F.2d 1116, 1122 n.8 (6th
Cir. 1989); Bolling v. Bowen, 682 F. Supp. 864, 865 (W.D. Va. 1988). Plaintiff contends that the
ALJ’s mentioning that Doctors Seastrunk’s and Stewart’s opinions were obtained in connection
with the SCWCC claim and by her lawyers indicates an impermissible bias on his part [Dkt. No.
32 at 3]. In sum, Plaintiff argues the Report erred by allowing the ALJ to give these opinions
zero weight simply because they were obtained by counsel.
The court need not review this objection de novo because, like Plaintiff’s first objection,
it has already been presented to the Magistrate Judge. Plaintiff, in her Opening Brief, attacked
the ALJ’s use of evidence that counsel had scheduled and paid for her evaluations by Doctors
Seastrunk and Stewart under a “double standard” theory [Dkt. No. 20 at 9, 11]. Essentially,
Plaintiff argued that if Doctor Seastrunk’s opinion was not credible because counsel had
obtained his services, then neither could the opinions of physicians obtained for this case by the
Commissioner be credible [id. at 9]; and if Doctor Stewart’s opinion was not credible because it
was obtained by counsel, then it was also not credible when the Commissioner obtained his
services in other disability hearings [id. at 11]. The Report implicitly rejected these arguments
finding that other substantial evidence from the record—including the opinions of other
physicians and Plaintiff’s testimony—and not the fact that counsel had paid for the examinations,
supported the ALJ’s credibility determinations. In her Objections, Plaintiff merely reformulates
her prior arguments by asserting flatly as a matter of law that the ALJ could not legitimately
discredit medical opinions merely because her lawyers had obtained them.
Because this
objection does no more than restate an argument previously made before the Magistrate Judge, it
10
does not warrant de novo review by the court. See Jackson, 2011 WL 1883026, at *1; Aldrich,
327 F. Supp. 2d at 747.
Parties must explain why a magistrate judge’s report is in error, rather than merely
presenting the district court the same argument and asking for a redetermination of the report’s
conclusions. See Albourque, 2013 WL 775080, at *5. To permit otherwise would defeat the
purpose of magistrate judges issuing reports and recommendations, as the district court
inevitably would be required to consider every argument anew. See Midgette, 478 F.3d at 622.
Accordingly, the court does not review the argument de novo, but instead must only satisfy itself
that there is no clear error on the face of the Report with respect to the ALJ’s according no
weight to the opinions of Doctors Seastrunk and Stewart. See Diamond, 416 F.3d at 316. The
court does not find clear error and, therefore, accepts the Report’s conclusions.
Moreover, even if the court reviewed the issue de novo, it would reach the same result as
the Magistrate Judge did in her Report. Where medical opinions diverge, leaving the record
open to more than one reasonable interpretation, it is the responsibility of the ALJ, not the court,
to resolve them. Hays, 907 F.2d at 1456. The ALJ found that the opinions of Doctors Seastrunk
and Stewart lacked probity because they were based almost exclusively on Plaintiff’s subjective
complaints and little objective evidence. His decision to accord no weight to these opinions and
to instead rely on other evidence—Plaintiff’s testimony and the opinions of other physicians—
was supported by substantial evidence.
Un-objected Portion
The court must make a de novo determination of those portions of a report to which
specific objections are made. See 28 U.S.C. § 636(b)(1). Portions of a report to which no party
objects do not require de novo review by the court. See Brooks, 2011 WL 4543994, at *2;
11
Veney, 539 F. Supp. 2d at 846. Absent obje
ection, the co reviews the content of a report only
ourt
s
t
t
for clear error. See Diamond, 416 F.3d at 316. The c
4
court does no find clear error in th unot
r
he
t
c
y,
accepts the R
Report.
objected portions of the Report; consequently the court a
CON
NCLUSION
N
Based on the aforementio
B
oned reasons and a thoro
s
ough review of the Repo and the re
w
ort
ecord
in this case, the court ACCE
c
EPTS the Magistrate Judge’s R
Report. [Dkt No. 30]. The
t.
Commiss
sioner’s fina decision is AFFIRME
al
s
ED.
IT IS SO OR
T
RDERED.
ted
t
Unit States District Court Judge
2
June 3, 2013
Greenville, South Ca
arolina
12
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