Keller v. Commissioner of the Social Security Administration

Filing 27

ORDER: The Court adopts the Report and Recommendation and affirmsthe Commissioner. Signed by Honorable Joseph Dawson, III on 3/31/2021. (lgib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Deborah Ann Keller,
Plaintiff,
vs.
Andrew Saul, Commissioner of Social
Security,
Defendant.

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Case No.: 5:19-03233-JD

ORDER

This social security matter is before the Court with the Report and Recommendation of
United States Magistrate Judge Kaymani D. West (“Report and Recommendation”) pursuant to
Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Deborah Ann Keller, brought this action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the
Defendant Commissioner of Social Security (“Commissioner”), denying her claims for Disability
Insurance Benefits (“DIB”). The Magistrate Judge issued her Report and Recommendation on
October 18, 2020, recommending that the Commissioner’s decision be affirmed. (DE 18.)
On October 22, 2020, Keller filed objections to the Report and Recommendation. (DE 20.)
Thereafter, on October 27, 2020, the Commissioner filed a response to Keller’s objections. (DE
23.) Having carefully considered the parties’ submissions and the applicable law, the Court adopts
the Report and Recommendation and affirms the Commissioner.
BACKGROUND
The Report and Recommendation sets forth the relevant facts and legal standards, which
this Court incorporates herein without a full recitation. (DE 18.) However, as a brief background,
Keller was born in 1969 and was forty-seven years old on her alleged onset date. She completed
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high school and has past relevant work experience as a goods processor and sales representative.
(DE 18, p. 2.) Keller alleged disability due to joint pain, knee replacement needed, vision
problems, bone pain, and all over body pain. (DE 18, p.2.)
Keller applied for DIB, alleging disability beginning July 27, 2016. A hearing was held
on June 28, 2018, and the ALJ heard testimony from Keller and her vocational expert Mr. William
Eugene Villa (“Villa”). The ALJ issued a decision on October 9, 2018, finding that Keller was
not disabled from the alleged onset date December 13, 2016, through the date of decision. (DE
18, p. 10.) Moreover, the ALJ found that Keller had not engaged in substantial gainful activity
since December 13, 2016. (DE 18, p. 9.) However, the ALJ determined that Keller’s bilateral
knee degenerative joint disease, aseptic necrosis of the bilateral hips, Raynaud’s syndrome,
obesity, depression, anxiety and personality disorder were severe impairments. (DE 18, p. 9.)
Nevertheless, the ALJ found that Keller did not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (the “Listings”). (DE 18, p. 9.) The ALJ further found that Keller retained
the residual functional capacity to:
Perform sedentary work as defined in 20 CFR 416.967(b) except she can
occasionally operate foot controls with her bilateral feet and occasionally balance,
stoop, kneel, crouch, and crawl. She can occasionally climb ramps and stairs, but
never climb ladders, ropes, or scaffolds. She should never be expos[ed] to hazards
such as unprotected heights and dangerous machinery, but can have occasional
exposure to extremes of heat and cold. The claimant is further limited to simple,
routine tasks, but is able to maintain concentration, persistence, and pace for periods
of two hours, perform activities with a schedule, maintain regular attendance, and
complete a normal workday and work week. She can occasionally interact with the
general public.
(DE 18, p. 9.) Although the ALJ found that Keller was unable to perform any past relevant work,
the ALJ found that Keller’s age, education, work experience, and residual functional capacity
afforded her the opportunity to perform jobs that existed in significant numbers in the national
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economy. (DE 18, p. 9.) Therefore, Keller was not disabled from December 13, 2016, through
the date of the decision. The Appeals Council denied Keller’s request for review on September
13, 2019, thereby making the decision of the ALJ the final action of the Commissioner. (DE 18,
p. 1.) The Report and Recommendation supports this finding. (DE 18, p. 27.)
Keller challenges the Report and Recommendation ostensibly citing five objections.1 First,
the Report and Recommendation failed to provide clarification of how the ALJ considered the
consistency and supportability of Dr. Adam Bruckner and Dr. Richard Field’s opinions as treating
physicians as required by 20 C.F.R. §416.927(c). (DE 20, p. 2.) Second, the Report and
Recommendation failed to address or explain whether the ALJ properly weighed the opinion
evidence in order to form his RFC. (DE 20, p. 2.) Third, the Report and Recommendation failed
to explain why the ALJ accepted some of the opinions of Drs. Bruckner and Field and included
them in the RFC but discounted their opinions that Keller was unable to sit for six hours in an 8hour workday. (DE 20, p. 3.) Fourth, the Report and Recommendation failed to recognize that
the ALJ’s oversight of the eventual need for surgery affected the ALJ’s analysis of the consistency
of Keller’s reports with the evidence. (DE 20, p. 4.) Fifth, the ALJ failed to consider Dr. Field’s
finding that Keller had many of the usual fibromyalgia tender points in assessing Keller’s
credibility, which leaves the credibility analysis without a proper explanation. (DE 20, p. 4-5.)
LEGAL STANDARD
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

A party may object to the report of the magistrate judge, and the district court reviews de novo
only those portions of the report where a party has raised specific objections. See 28 U.S.C. § 636(b)(1).   
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has been made, and may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(l). However, de novo review is unnecessary when a party
makes general and conclusory objections without directing a court's attention to a specific error in
the Magistrate Judge's proposed findings. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
In the absence of a specific objection, the court reviews the report and recommendation only for
clear error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(citation omitted); see also Tyler v. Wates, 84 F. App'x 289, 290 (4th Cir. 2003) (“A general
objection to the entirety of the magistrate judge’s report is tantamount to a failure to object.”).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 205(g) of the Act provides, “[t]he findings of the Secretary
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”2 42 U.S.C. § 405(g).
The court must uphold the Commissioner’s decision as long as it was supported by substantial
evidence and reached through the application of the correct legal standard. Johnson v. Barnhart,
434 F.3d 650 (4th Cir. 2005). This standard precludes a de novo review of the factual
circumstances that substitutes the court’s findings for those of the Commissioner. Vitek v. Finch,
438 F.2d 1157 (4th Cir. 1971). “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 action.” 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

“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). “It means—and means only—
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019).
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[Commissioner’s] findings, and that his conclusion is rational.” Vitek, 438 F.2d at 1157-58.
However, the court does not “reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at 653. “Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility
for that decision falls on the ALJ.” Id.
DISCUSSION
First, Keller contends that the Report and Recommendation failed to provide clarification
of how the ALJ considered the consistency and supportability of Dr. Adam Bruckner and Dr.
Richard Field’s opinions as treating physician as required by 20 C.F.R. §416.927(c). (DE 20, p.
2.) The Code of Federal Regulations provides that “[u]nless we give a treating source’s medical
opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following
factors in deciding the weight we give to any medical opinion.” 20 C.F.R. § 416.927(c).
“Generally, the more consistent a medical opinion is with the record as a whole, the more weight
we will give to that medical opinion.” Id. at (c)(4). Here, the ALJ did not choose to give Keller’s
treating physicians’ opinions controlling weight. The Report and Recommendation noted “‘[t]he
opinions of a treating physician are not entitled to great weight where they are contradicted by the
physician’s own treatment notes, or by other evidence.’ Nor will an ALJ ‘give any special
significance to the source of an opinion on issues reserved to the Commissioner,’ including the
residual functional capacity.” Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at
*2 (D.S.C. Sept. 28, 2015). However, the Report and Recommendation considered extensively
the medical evidence from Dr. Bruckner, Plaintiff’s primary care physician, and Dr. Field,
Plaintiff’s rheumatologist. (DE 18, p. 13-24.) Here, it is clear from the record that the ALJ
considered consistencies in the doctors’ opinions but found that some of their opinions were not

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well supported by, and/or were inconsistent with, “diagnostic and objective findings of record.”
(DE 18, p. 22.) Specifically, “the diagnostic and objective findings of record do not support greater
restrictions, especially not the need for absences or an off task allowance, as noted by Dr.
Bruckner.” (DE 18, p. 22.) Therefore, because of the contrary evidence in the record, the ALJ
properly gave less weight to the opinions of Dr. Field and Dr. Bruckner.
Secondly, Keller asserts that the Report and Recommendation failed to address or explain
whether the ALJ properly weighed the opinion evidence in order to form his RFC. (DE 20, p. 2.)
However, this assertion mischaracterizes the ALJ’s findings. The ALJ assigned the opinions at
issue partial weight because aspects of those opinions were not well supported by and/or were
inconsistent with “the diagnostic and objective findings of record[,]” and therefore, “greater RFC
restrictions were not required.” (DE 18, p. 22.) Pursuant to the controlling regulations, 20 C.F.R.
§ 416.927(c)(2)-(4), this was a permissible basis to assign partial weight to the opinions at issue
as well. Therefore, the ALJ did not err.
Thirdly, Keller argues that the Report and Recommendation failed to explain why the ALJ
accepted some of the opinions of Drs. Bruckner and Field and included them in the RFC but
discounted their opinion that Keller was unable to sit for six hours in an 8-hour workday. (DE 20,
p. 3.) Reading the ALJ’s decision and the record as a whole, the Report and Recommendation
discussed substantial evidence supporting the ALJ’s decision that Plaintiff could sit for the
requisite duration to perform sedentary work (and would not need a sit/stand option).3 (DE 18, pp.

Despite alleging disability starting in December 2016, Plaintiff participated in physical therapy in
January 2017 where she rated her pain at 5/10 at its worst, with prolonged walking (not sitting). Further,
in August 2017, Plaintiff only had mild crepitation, and she only reported mild pain in March 2018. (DE
18, pp. 18-23.) Accordingly, an individual is not required to be pain-free or experience no discomfort in
order to be found not disabled. See Hays v. Sullivan, 907 F.2d 1453, 1458 (4th Cir. 1990) (finding evidence
indicating that claimant was experiencing some amount of pain that was not alleviated by noninvasive
treatment or physical therapy and that claimant refused to undergo corrective back surgery is insufficient
evidence to establish a disability). 
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13-23.) In particular, the Report and Recommendation found that “Plaintiff had an RFC to perform
sedentary work. Tr. 142-153. There, the ALJ also reasoned that the medical evidence is not
consistent with the severity of the symptoms alleged.” (DE 18, p. 21.) This finding was supported
by the opinions of the state agency physicians and explained in the record. Therefore, the opinions
constitute substantial evidence in support of the ALJ’s decision.
Fourth, Keller objects to the Report and Recommendation because it failed to recognize
that the ALJ’s oversight of the eventual need for surgery affected its analysis of the consistency of
Keller’s reports with the evidence. (DE 20, p. 4.) Keller asserts that “. . . as noted by the Magistrate
Judge, surgery was not recommended immediately because of her age, not because her knee
problems were not severe enough to warrant surgery.”

(DE 20, p. 4).

The Report and

Recommendation found that the ALJ considered,
Plaintiff’s allegations in her Disability Report, Function Report, and hearing
testimony the ALJ determined that: . . . As for the claimant’s statements about the
intensity, persistence, and limiting effects of her symptoms, they are inconsistent
with the overall medical record. . . . Moreover, she reported needing total knee
replacements, yet there is no notation of his recommendation in the file. Further,
examinations do not note use of a cane or any assistive device by the claimant
despite her testimony of a need for a cane to ambulate. The undersigned, therefore,
finds the claimant’s testimony unpersuasive when compared to the clinical findings
in the record.
(DE 18, p. 25.)
The ALJ considered Keller’s symptomology and weighed it in light of her testimony, medical
records, and other evidence in the record. The court does not “reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at
653. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the ALJ.” Id.
Lastly, Keller’s fifth objection questions whether the ALJ failed to consider Dr. Field’s
finding that Keller had many of the usual fibromyalgia tender points in assessing Keller’s
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credibility which leaves the credibility analysis without a proper explanation. (DE 20, p. 4-5.)
Keller argues although she has not received a fibromyalgia diagnosis, Dr. Field documented
Keller’s pain, and therefore, there is evidence that is consistent with her reports of pain. An ALJ
must only accord a treating physician’s medical opinion controlling weight if a treating source’s
medical opinion is “well-supported and not inconsistent with the other substantial evidence in the
case record.” SSR 96-2; see also 20 CFR § 416.927(c)(2). Here, it is clear from the record that
the ALJ considered consistencies in the doctors’ opinions but found that some of their opinions
were not well supported by, and/or were inconsistent with, “diagnostic and objective findings of
record.” (DE 18, p. 22.) In particular, the Report and Recommendation found:
As for the claimant’s statements about the intensity, persistence, and limiting
effects of her symptoms, they are inconsistent with the overall medical record. The
claimant testified to spending all day on the couch because her body aches and to
wearing depends on days her arthritis is so bad because she urinated on herself and
to hearing voices and seeing visions due to her mental health conditions, yet she
failed to report any such physical or mental symptoms to her medical providers.
The failure to report such significant deficits in functioning to medical providers
does not support the persuasiveness of the claimant’s testimony.
(DE 18, 25.)
Again, Plaintiff’s argument fails to consider the relevant substantial evidence standard—
“look[ing] to [the] existing administrative record and ask[ing] whether it contains [substantial
evidence] to support the [ALJ’s] factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148,
1154 (2019). In this case it does.
CONCLUSION
For the foregoing reasons, the Court adopts the Report and Recommendation and affirms
the Commissioner.

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AND IT IS SO ORDERED.

March 31, 2021
Greenville, South Carolina

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