Smalls v. Commissioner of Social Security Administration
Filing
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OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION: The Court concurs in the recommendation of the Magistrate Judge and thus adopts the Report and Recommendation and incorporates it herein by reference to the extent it is consistent with this order. The decision of the Commissioner to deny benefits is AFFIRMED. Signed by Honorable Bruce Howe Hendricks on 3/16/2015. (gnan, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Brenee Lucille Smalls,
) Civil Action No.: 5:13-2728-BHH
)
Plaintiff, )
)
v.
)
OPINION AND ORDER
)
Carolyn W. Colvin,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant. )
______________________________ )
The plaintiff, Brenee Lucille Smalls (“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 Benefits under Titles II and
XVI 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 Kaymani D. West for pretrial handling. On January 14, 2015, the
magistrate judge issued a Report and Recommendation in which she determined that the
Commissioner’s decision was based on substantial evidence. Accordingly, the magistrate
judge recommended affirming the Commissioner’s decision. (ECF No. 26.) The plaintiff
filed Objections on February 2, 2015 (ECF No. 28), and on February 19, 2015, the
Commissioner filed a Reply (ECF No. 30). For the reasons stated below, the Court adopts
the Report and Recommendation and affirms the Commissioner’s decision.
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. The plaintiff was 54 years old on the date of her hearing, has a tenth grade
education, and has work experience at an air conditioner parts manufacturer. (R. at 37-38,
49, 62-63.) The plaintiff’s application was denied initially and on reconsideration. (R. at 6972, 73-74.) A hearing was held before an ALJ who issued an unfavorable decision dated
August 31, 2012, finding that the plaintiff was not disabled within the meaning of the Act.
(R. at 17-26.) The Appeals Council denied the plaintiff’s request for review (R. at 1-3),
making the ALJ’s decision the final decision of the Commissioner.
The plaintiff
subsequently filed an action in this Court on October 7, 2013. (ECF No. 1.)
REPORT AND RECOMMENDATION
The magistrate judge recommends affirming the ALJ’s decision. (ECF No. 26 at 25.)
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 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 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
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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.
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
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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 plaintiff filed objections to the Report and Recommendation (“Objections”) on
February 2, 2015 (ECF No. 28), and the Commissioner filed a non-substantive reply on
February 19, 2015 (ECF No. 30). The Court has considered each specific objection fully
and found them without effect.1
Respectfully, the plaintiff has made the identical
arguments on objection as made in her initial belief. The recommendation could not be
more competent to address them. The Court would say only a bit more.
As to the ALJ’s “light work” determination and reliance on a vocational expert, the
magistrate judge has answered it all with great thoroughness. The plaintiff’s continued
insistence does not rightly characterize the magistrate judge’s work. She claims that “the
Commissioner and the Magistrate Judge respond that the job of office helper did not
require depth perception and the job description did not mention use of a computer
1
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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monitor.” (ECF No. 18 at 4; ECF No. 26 at 20.) While that is what was technically
observed by the magistrate judge on the page identified, it is not what the magistrate judge
principally found. Rather, she could not have been more clear in response to this identical
argument:
Although Plaintiff argues that she is unable to perform the
office-helper job because of her vision, neck-movement, and
pain limitations on her ability to look at computer screens for
extended periods, the ALJ’s hypotheticals to the VE included
Plaintiff’s vision limitations to the extent found credible by
inclusion of a restriction on computer screen usage to no “more
than thirty minutes at a time without a break.”
(ECF No. 26 at 18 (citing R. at 20, 63).) In other words, the interplay between the level of
established limitation and the probable future use of a computer has not in any respect
been ignored. Rather, the plaintiff really just means to disagree that she can use a
computer in the way determined. But, that is a very different objection than the one alleged
– that computer usage has somehow not been accounted for at all. (See ECF No. 28 at
“However, in 2012, it is irrational to conclude that an office helper would not use a computer
monitor regularly.”) With respect to either the “light work” or vision objections, there is no
error.
Regarding the plaintiff’s various objections concerning the ALJ’s Residual Functional
Capacity assessment, the Court is also satisfied with the magistrate judge’s
recommendation that no error exists. The Court has given some especial consideration
to the ALJ’s decision not to specifically mention the plaintiff’s cervical collar.
The
magistrate judge’s view, however, is well justified it. First, it cannot be said that the ALJ did
anything other than thoroughly consider all of the evidence related to the plaintiff’s neck
pain and range of motion. (R. at 22-23.) Second, the ALJ particularly discussed Dr.
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Avinash Gupta’s records and treatment plan with great specificity. (R. at 23.) It is Dr.
Gupta who “recommend[ed]” the collar “to give a rest of the muscles,” without any particular
instructions as to frequency. (R. at 452.) It is not a fair reading of the decision to say it was
not considered.
The plaintiff has offered that the use of the collar would be “expected to cause
insurmountable problems with many if not all types of unskilled work.” (Pl. Brief at 32.)
Unfortunately, this is her own guess.2 She has not actually offered evidence of some
greater limitation than is already reflected in the ALJ’s RFC. As stated, she has not even
established medical necessity and prescription for the collar in any particular amount.
The Court would be too exacting to remand for a failure to consider so much
evidence as the ALJ plainly already did. The Court always regrets difficult results.
2
The credibility determination has not been challenged on objection.
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CONCLUSION
The Court has carefully reviewed the record, including the findings of the ALJ, the
plaintiff’s objections to the Report and Recommendation, and the defendant’s reply. The
Court concurs in the recommendation of the Magistrate Judge and thus adopts the Report
and Recommendation and incorporates it herein by reference to the extent it is consistent
with this order. The decision of the Commissioner to deny benefits is AFFIRMED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 16, 2015
Greenville, South Carolina
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