McCall v. Commissioner of the Social Security Administration

Filing 33

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 to the extent it is consistent with this order. The decision of the Commissioner is AFFIRMED. Signed by Honorable Bruce Howe Hendricks on 9/22/2015. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Cherie McCall,

) Civil Action No.: 5:14-1185-BHH
)
Plaintiff, )
)
v.
)
OPINION AND ORDER
)
Carolyn W. Colvin,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant. )
______________________________ )
The plaintiff, Cherie McCall (“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”) pursuant to 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 July 27, 2015, the
magistrate judge issued a Report and Recommendation in which she determined that the
Commissioner’s decision was supported as a matter of fact and law. Accordingly, the
magistrate judge recommended affirming the Commissioner’s decision. (ECF No. 26.) The
plaintiff filed Objections on August 12, 2015 (ECF No. 28), and on August 31, 2015, the
Commissioner filed a Reply (ECF No. 31). 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, and the Court incorporates them and summarizes below in relevant part
The plaintiff was 42 years old on her amended alleged onset date of August 12, 2010, due
to “[p]anic disorder, high blood pressure, diabetes, fibyomyalgi [sic], chronic leg pain.” (R
at 22, 258.) She has a high school education, and has past relevant work as a fry cook,
fast food manager, retail-sales manager and photographer/retail sales person. (R. at 57,
258-59.) The plaintiff’s initial application was denied initially and on reconsideration. (R.
at 98.) A hearing was held before an Administrative Law Judge (“ALJ”) who issued an
unfavorable decision on September 21, 2009, finding that the plaintiff was not disabled.
(R. at 63-94, 98-106.)
The plaintiff protectively filed a subsequent application alleging an onset date of
June 11, 2005. (R. at 107, 228-29.) Her second application was denied initially and on
reconsideration. (R. at 107, 116.) A hearing was held before an ALJ on October 4, 2012,
at which the plaintiff amended her alleged onset date to August 12, 2010. (R. at 34-62.)
The ALJ denied the plaintiff’s claim in a decision dated October 26, 2012. (R. at 17-29.)
The Appeals Council denied the plaintiff’s request for review (R. at 1-6), making the ALJ’s
decision the final decision of the Commissioner. The plaintiff subsequently filed an action
in this Court on March 31, 2014. (ECF No. 1.)
REPORT AND RECOMMENDATION
The magistrate judge recommends affirming the ALJ’s decision. (ECF No. 26 at
24.)

The magistrate judge makes only a recommendation to this Court.

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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
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.
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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
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
August 12, 2015 (ECF No. 28), and the Commissioner filed a reply on August 26, 2015
(ECF No. 31). The plaintiff objects to the magistrate judge’s recommendation concerning
the ALJ’s alleged failure to properly consider the effects of the plaintiff’s syncope and
obesity on her ability to perform work. The Court will consider each specific objection in

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turn.1
The plaintiff first asserts that the magistrate judge and ALJ failed to consider the
possibility that the side effects of her syncope – unexpected loss of consciousness – can
arise regardless of the activity and not simply when the plaintiff is working around hazards
or driving. This is a slightly strained view of what the ALJ intended by the limitation. In
accommodation of her syncope, the ALJ found that, through her date last insured, the
plaintiff had the residual functional capacity (RFC) to “perform a full range of work at all
exertional levels but with the following nonexertional limitations: the claimant was unable
to work with the general public or in close coordination with others, but could work in
proximity to others. She should have avoided work place hazards and commercial driving.”
(R. at 24.) First, the limitation cited, with respect to hazards and driving, was not some
indication that the risks associated with loss of consciousness posed by syncope only arise
during those activities but that those risks are at their most dangerous in the context of
such activities. (R. at 26.) Secondarily, the ALJ fully assessed the plaintiff’s syncope and
concluded that its quality was not entirely of the kind she professed. Id. And, so the
plaintiff’s argument as to the environs, in which she can work, misapprehends the main
point of the ALJ’s analysis that the impairment simply did not justify significant limitation of
any kind. Indeed, as the defendant emphasized from the Report and Recommendation,
“‘[a]lthough the evidence is limited, the [ALJ] gave the claimant the benefit of the doubt
based on her treatment history by finding that panic disorder and syncope were severe

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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impairments.’” (R&R at 18-19 (quoting R. at 26).) There is no error, in the way the plaintiff
has alleged. Syncope was fully considered and, as the magistrate judge found, the
corresponding limitations prescribed were supported by the substantial evidence of record.
The plaintiff additionally argues – as she did in her opening brief and on reply – that
the ALJ erred in not finding obesity a severe impairment. The magistrate judge, however,
correctly found that the plaintiff “does not reference anything in the record concerning her
alleged obesity’s impact on her ability to work or perform any functional activities.” (R & R.
at 22). Indeed, the plaintiff – who was represented – never alleged in her application or at
the hearing that obesity was disabling. (R. at Tr. 34-62, 258.)
Apparently for the first time anywhere, the plaintiff cites the records of a Dr. Plyler
in support of a diagnosis of obesity. (R. at 447-48, 464.) It is hard to find fault in either the
ALJ’s or the magistrate judge’s consideration where the plaintiff has abdicated her burden
to establish limitation, as the magistrate judge recognized. But, more importantly, the
evidence still does not meet the critique of the magistrate judge, namely, that the plaintiff
has not shown evidence of limitation following therefrom. So even were the Court to credit
the diagnostic evidence, it is harmless for its inability to suggest that the determination of
the ALJ would have been any different for it. See Mickles v. Shalala, 29 F.3d 918, 921 (4th
Cir. 1994) (affirming denial of benefits where the ALJ erred in evaluating claimant’s pain
because “he would have reached the same conclusion notwithstanding his initial error”).

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
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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 is AFFIRMED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
September 22, 2015
Greenville, South Carolina

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