O'Kelley v. Commissioner of Social Security Administration
ORDER RULING ON REPORT AND RECOMMENDATION accepting 27 Report and Recommendation Signed by Honorable J Michelle Childs on 2/5/14. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Colette Deeann O’Kelley,
Carolyn W. Colvin,
Acting Commissioner of the
Social Security Administration,
Civil Action No. 6:12-cv-02553-JMC
ORDER AND OPINION
This matter is before the court for review of the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 27), filed October 25, 2013, regarding Plaintiff Colette
Deeann O’Kelley’s (“Plaintiff”) claim for Disability Insurance Benefits (“DIB”). On September 5,
2012, Plaintiff filed the instant action seeking judicial review of the final decision of the Acting
Commissioner of the Social Security Administration (“the Acting Commissioner”) pursuant to 42
U.S.C. § 405(g). (ECF No. 1). The magistrate judge concluded that the administrative law judge’s
(“ALJ”) decision was based on substantial evidence and free of legal error. (ECF No. 27 at 13).
Accordingly, the magistrate judge recommends that the court affirm the Acting Commissioner’s final
For the reasons set forth below, the court ACCEPTS the magistrate judge’s Report. The
Acting Commissioner’s final decision is AFFIRMED.
FACTUAL AND 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 background in this case is warranted.
Plaintiff filed an application for DIB on November 19, 2008, regarding a disability which
she initially alleged began on October 31, 2007. (Tr. 148–158). Plaintiff later amended her
alleged onset date to February 1, 2009. (See Tr. 12, 95). The Acting Commissioner initially
denied Plaintiff’s application and denied it again upon reconsideration. (Tr. 128, 139). On
September 9, 2010, Plaintiff had a hearing before an ALJ. (See Tr. 71–118). On January 3,
2011, the ALJ found that Plaintiff was not disabled. (Tr. 9–41). The ALJ determined that
Plaintiff had the following severe impairments: chronic obstructive pulmonary disease (COPD),
diabetes mellitus, major depressive disorder, and obesity. (Tr. 14).
The ALJ concluded that Plaintiff had a residual functional capacity (“RFC”) to perform
sedentary work with the following specifications:
[Plaintiff] could lift/carry no more than a maximum of 10 pounds at one time
and occasionally lift/carry objects weighing less than 10 pounds as
exemplified by articles such as docket files, ledgers, and small tools.
[Plaintiff] could sit up to six hours of an eight-hour workday, and stand/walk
up to two hours out of an eight-hour workday. [Plaintiff] could push/pull
with the upper and lower extremities bilaterally in a manner consistent with
the exertional demands of sedentary work. [Plaintiff] could occasionally
climb ladders, ropes, and scaffolds, and [Plaintiff] could frequently climb
ramps and stairs, as well as frequently balance, stoop, kneel, crouch, and
crawl. [Plaintiff] should avoid concentrated exposure to workplace hazards,
in addition to avoiding concentrated exposure to irritants, such as fumes,
odors, dust, gases, tobacco smoke, and areas with poor ventilation. [Plaintiff]
could maintain appropriate concentration, persistence, and pace for two-hour
periods while performing jobs in a stable environment that required no more
than simple, routine, repetitive, tasks and no more than occasional public
[Plaintiff] could interact appropriately with coworkers and
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) of the Social
Security Act to obtain judicial review of the final decision of the Acting Commissioner, denying
her claim for DIB. (ECF No. 1). The magistrate judge reviewed Plaintiff’s case and provided
the Report to the court. (ECF No. 27). In the Report, the magistrate judge found that the record
supported the ALJ’s determination of Plaintiff’s credibility as well as the ALJ’s finding that
Plaintiff could perform sedentary work. Id. at 8–13. Plaintiff filed an objection to the findings
of the Report, (ECF No. 29), to which the Acting Commissioner replied, (ECF No. 30).
STANDARD OF REVIEW
The magistrate judge’s Report and Recommendation 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. 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 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.
Plaintiff contends the ALJ did not properly consider the record in reaching Plaintiff’s
RFC determination because, according to Plaintiff, the medical evidence and Plaintiff’s
testimony indicate that she is disabled. (ECF No. 20 at 5). Plaintiff further argues that the ALJ
made inadequate credibility findings with respect to Plaintiff’s testimony about the symptoms of
her impairments. Id. at 6. The magistrate judge disagreed finding that the ALJ sufficiently
detailed his reasons for finding Plaintiff not entirely credible. (ECF No. 27 at 11 (citing Tr. 21–
The Report also concluded that substantial evidence supported the ALJ’s RFC
determination. Id. at 13.
Plaintiff objects that the ALJ improperly failed to articulate the weight that he gave to
Plaintiff’s testimony about her daily activities in reaching Plaintiff’s RFC determination. (ECF
No. 29 at 2–3). The Acting Commissioner characterizes Plaintiff’s objection as a complaint that
the ALJ used Plaintiff’s daily activities to find Plaintiff not credible. (ECF No. 30 at 1). The
Acting Commissioner contends that although the ALJ used Plaintiff’s daily activities to inform
his credibility determination as well as his assessment of Plaintiff’s functional capabilities,
Plaintiff’s daily activities were not the sole factors which the ALJ considered. Id. at 2. The
Acting Commissioner thus argues that the ALJ properly considered Plaintiff’s daily activities.
The ALJ may consider a plaintiff’s daily activities to support an RFC determination.
Brim v. Chater, 74 F.3d 1230, 1996 WL 10288, at *3 (4th Cir. Jan. 9, 1996) (citing Gross v.
Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)). The court is unaware of any authority for
Plaintiff’s contention that the ALJ must articulate a specific standard for weighing her daily
activities. The ALJ noted in his decision that Plaintiff’s ability to perform daily activities was
not dispositive but was instead “some evidence of the appropriateness of the [RFC].” (Tr. 30).
The court finds no error in the ALJ’s consideration of Plaintiff’s daily activities. Therefore, the
court finds no basis upon which to disturb the magistrate judge’s conclusion that substantial
evidence supports the ALJ’s RFC determination.
For the foregoing reasons, the court ACCEPTS the magistrate judge’s Report and
Recommendation (ECF No. 27). The court thereby AFFIRMS the Acting Commissioner’s final
IT IS SO ORDERED.
United States District Court Judge
February 5, 2014
Greenville, South Carolina
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