Leopard v. Commissioner of Social Security

Filing 31

ORDER RULING ON REPORT AND RECOMMENDATION adopting 24 Report and Recommendation. Signed by Honorable Timothy M Cain on 1/18/19. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Frankie H. Leopard,
Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 6:17-cv-02712-TMC

ORDER

The plaintiff, Frankie H. Leopard (“Leopard”), brought this action pursuant to the Social
Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final
decision of the Commissioner of Social Security (“Commissioner”),1 denying his claim for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). In accordance
with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., this matter was referred
to a magistrate judge for pretrial handling. Before this court is the magistrate judge’s Report and
Recommendation (“Report”), recommending that the court affirm the Commissioner’s decision.
(ECF No. 24).2 In the Report, the magistrate judge sets forth the relevant facts and legal
standards, which are incorporated herein by reference. Leopard filed objections to the Report
(ECF No. 26), and the Commissioner responded to those objections (ECF No. 30). Accordingly,

1
Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration on January 23, 2017.
Pursuant to Fed. R. Civ. P. 25(d), the court substitutes Berryhill for Carolyn W. Colvin as the defendant in this
action.
2

The magistrate judge's recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The
court is charged with making a de novo determination of those portions of the Report to which specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate
judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

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this matter is now ripe for review.
BACKGROUND
On May 30, 2014, Leopard applied for DIB and SSI, alleging a disability onset date of
July 20, 2011. (ECF No. 10-2 at 19). These claims were denied both initially and on
reconsideration by the Social Security Administration (“SSA”). (ECF No. 10-3). Leopard then
requested a hearing before an Administrative Law Judge (“ALJ”), and on September 28, 2016,
the ALJ conducted a hearing on Leopard’s claims for DIB and SSI. (ECF No. 10-2). Leopard
was represented by counsel at the hearing. On December 6, 2016, the ALJ issued an opinion
finding that Leopard was not disabled. (ECF No. 10-2 at 19–39).
In her decision, the ALJ found Leopard met the insured status requirements under the
Social Security Act through December 31, 2016, and that Leopard had not engaged in substantial
gainful activity since July 20, 2011, the alleged onset date of disability. (ECF No. 10-2 at 21).
The ALJ further found that Leopard suffered from the following severe impairments:
degenerative disc disease of the cervical spine, lumbago, degenerative joint disease of the right
shoulder, right wrist and right ulnar neuropathy, migraine headaches, depression, anxiety, and
borderline intellectual functioning/neurocognitive disorder. Id. In reviewing all of Leopard’s
impairments, the ALJ concluded that he 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.” Id. at 22. Additionally, the ALJ calculated Leopard’s
residual functional capacity (“RFC”) and determined that he could perform light work with
various limitations.3 Due to these limitations, the ALJ determined that Leopard is unable to

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Specifically, the ALJ concluded that Leopard could perform light work “except he can lift less than 10 pounds with
right dominant hand,but is able to lift 20 pounds occasionally and 10 pounds frequently with both hands.”
Additionally, the ALJ concluded that Leopard “limited to only occasional climbing of stairs; no climbing ladders,

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perform his past relevant work of being a driver/sales rout worker, flatbed truck driver, and
warehouse worker. (ECF No. 10-2 at 32–33). However, the ALJ determined that based on
Leopard’s age, education, work experience, and RFC calculation, there were “jobs that existed in
significant numbers in the national economy that [he] can perform.” Id. at 33. Accordingly, the
ALJ determined that Leopard was not disabled as defined in the Social Security Act. Id. at 34.
Leopard subsequently appealed to the Appeals Council, and the Appeals Council denied
Leopard’s request for review of the ALJ’s decision. Id. at 2–5.

Therefore, the ALJ’s decision

became the final decision of the Commissioner. This action followed.
STANDARD OF REVIEW
The federal judiciary has a limited role in the administrative scheme established by the
SSA. 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 . . . 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. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review,
the court may not “undertake to re-weigh conflicting evidence, make credibility determinations,
or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
However, “[f]rom this it does not follow . . . that the findings of the administrative

ropes or scaffolds; frequent balancing; occasional stooping, kneeling, crouching, and crawling; frequent handling
with his right dominant hand; occasional overhead reaching on the right; and no overhead work.” Furthermore, the
ALJ noted that Leopard should “avoid all exposure to dangerous machinery and unprotected heights.” Finally, in
relation to the RFC, the ALJ stated that Leopard is “able to perform simple, routine tasks for at least two hours at a
time before taking a normal 15- minute break or once daily 30-minute lunch break in a work environment which
provides only occasional contact with the public.” (ECF No. 10-2 at 24).

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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). Rather, “the 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.
DISCUSSION
The magistrate judge filed a Report, recommending that the decision of the
Commissioner be affirmed. (ECF No. 24). Leopard timely filed objections to the Report. (ECF
No. 26). The Commissioner replied to these objections and further argued that Leopard’s
objections were simply a reiteration of arguments already before the magistrate judge. (ECF No.
30). The matter is now ripe for review.
The court recognizes that Leopard’s objections appear to largely be reiterations of the
issues raised in his brief (ECF No. 19), and to extent that the objections are simply restatements
of arguments already fully presented to the magistrate judge for review, they do not constitute
specific objections to the Report. See Nichols v. Colvin, No. 2:14-cv-50, 2015 UL 1185894, at *8
(E.D. Va. Mar. 13, 2015) (finding that the rehashing of arguments raised to the magistrate judge
does not comply with the requirement to file specific objections); Aldrich v. Bock, 327 F. Supp.
2d 743, 747 (E.D. Mich. 2004) (“An ‘objection’ that does nothing more than state a
disagreement with a magistrate’s suggested resolution, or simply summarizes what has been
presented before, is not an ‘objection’ as the term is used in this context.”). However, Leopard’s
objections do contain several specific reasons that he disagrees with the magistrate judge’s
assessment of those claims. Accordingly, the court will consider the following objections: (1)
that the magistrate judge erred in finding that the ALJ properly considered the medical opinion
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of Dr. Scott; (2) that the magistrate judge erred in finding that the ALJ properly considered the
medical opinion of Dr. Saad; and (3) that the magistrate judge erred in finding that the ALJ
properly considered Leopard’s subjective symptoms. (ECF No. 26).
In his Report, the magistrate judge laid out the standard that an ALJ must follow in
considering a treating physician’s opinion, which the court incorporates herein. (ECF No. 24 at
17). The magistrate judge concluded that the ALJ properly considered the medical opinions of
Dr. Scott and Dr. Saad based on this standard and explained her reasoning for assigning those
opinions only partial weight. (ECF No. 24 at 18–19, 22–23). As the ALJ and the magistrate
judge both acknowledged, Dr. Scott, Leopard’s treating neurologist, opined regarding Leopard’s
limitations and disability. (ECF Nos. 10-2 at 31, 24 at 18). The ALJ considered Dr. Scott’s
opinion, and in light of the other evidence in the record, gave such opinion partial weight. (ECF
No. 10-2 at 31). In determining that Dr. Scott’s opinion should only be given partial weight, the
ALJ noted that she gave weight to the functional limitations described in Dr. Scott’s opinion and
incorporated them generally into the RFC calculation. Id. However, the ALJ found that Dr.
Scott’s opinion that Leopard would “be distracted or unable to complete tasks as much as 15 to
20 percent ‘of any given workday’” was inconsistent with the medical record. Id.
Leopard objects to the magistrate judge’s determination that the ALJ properly considered
Dr. Scott’s medical opinion, arguing specifically that symptoms being “relatively well
controlled” does not mean that those symptoms were “cured and resolved.” (ECF No. 26 at 2).
Leopard contends that Dr. Scott’s opinion that Leopard would be off task fifteen to twenty
percent of the workday was reasonable given the “incompletely controlled symptoms” and the
side effects from the medication, and that, therefore, the opinion should have been given more
weight. Id.
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The ALJ stated that the reason she gave only partial weight to Dr. Scott’s opinion was
because the opinion was inconsistent with the other evidence in Leopard’s medical record. (ECF
No. 10-2 at 31). As the Fourth Circuit has held, “if a physician’s opinion is not supported by
clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded
significantly less weight.” Craig v. Chater, 76 F.3d 585 (4th Cir. 1996). In reviewing the
evidence, the ALJ noted that Leopard’s treatment history was conservative and that his
symptoms were “relatively controlled with medications.” (ECF No. 10-2 at 31). In fact, Dr.
Scott’s own reports state that “[f]or the most part [Leopard’s] symptoms are controlled
conservatively with hydrocodone and Felxeril” and that these medications work “pretty well.”
(ECF No. 10-13 at 3–4). Dr. Scott wrote this report the same day that he issued the opinion
stating that Leopard was disabled. Compare id. at 3 – 4 with id. at 24. The Fourth Circuit has
specifically stated that “[i]f a symptom can be reasonably controlled by medication or treatment,
it is not disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). However, Leopard
contends that these untreated symptoms, mixed with Leopard’s side effects from the
medications, support Dr. Scott’s opinion.4 (ECF No. 26 at 2). Furthermore, when asked at his
hearing if he had any side effects from the medication, Leopard first stated that he had no side
effects from his medications. (ECF No. 10-2 at 52). Then, when his attorney re-asked the
question, Leopard stated that his medications cause “maybe a little fatigue” and make him
“drowsy at times.” Id. at 55. The ALJ considered the purported side effects when evaluating

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Notably, it seems that Leopard’s objections regarding Dr. Scott pertain only to the portion of his opinion
describing Leopard being off task and how the ALJ treated that portion of the opinion. As to this objection, the court
notes that the medications described by Dr. Scott, and now discussed by Leopard in his objections, were prescribed
for Leopard’s back pain, not for his “cognitive dysfunction.” In his opinion, Dr. Scott specifically states that
Leopard’s alleged “cognitive dysfunction” was the reason that Leopard would be off task excessively. (ECF No. 1013 at 24). Accordingly, the objection as to the “uncured” symptoms is without merit and ultimately misplaced.

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medical opinions and calculating the RFC,

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noting specifically in her decision that Leopard

claimed his medication made him “drowsy.” Id. at 25.
In evaluating Leopard’s mental functions, while in December 2013, Dr. Scott indicated
that there was a “departure” in Leopard’s mental functioning (ECF No. 10-12 at 40), no such
departure was noted in the remainder of Dr. Scott’s reports. Instead, throughout his treatment of
Leopard, Dr. Scott stated that Leopard’s mental status was “intact” or at “baseline.” (ECF Nos.
10-13 at 37, 39, 41, 58, 62, 65; 10-13 at 3, 6, 9, 12). In fact, in 2016, on the same date that Dr.
Scott issued his opinion stating that Leopard was disabled and that he would require extensive
breaks and absences, Dr. Scott observed Leopard’s mental status to be “baseline and intact” and
made no mention of any mental deficiencies. (ECF No. 10-13 at 3). Accordingly, Dr. Scott’s
opinion as to Leopard’s needing excessive breaks and absences contradicted his own reports.6
Furthermore, Leopard’s contention that the side effects of his medication supported Dr.
Scott’s opinion does not negate the various contradictory evidence in the record, and it is not this
court’s place on review to reweigh the evidence, evaluate credibility, or substitute its judgement
for the ALJ’s. Craig, 76 F.3d at 589. The record reflects various inconsistencies within Dr.
Scott’s own medical reports as well as inconsistencies with other evidence in the record.
Accordingly, the court finds that the ALJ’s decision to give Dr. Scott’s opinion only partial
weight is supported by substantial evidence. Therefore, the court overrules this objection.
Leopard also objects to the magistrate judge’s determination that the ALJ properly
considered Dr. Saad’s medical opinion, arguing that Dr. Saad recognized Leopard’s “symptoms

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Furthermore, the ALJ noted that she considered all of the evidence in the record. The ALJ’s opinion reveals a
detailed and thorough account of Leopard’s medical history and subjective complaints, as well as an in-depth
analysis as to the effects of Leopard’s impairments on his ability to work.
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This opinion was also inconsistent with the opinion by Dr. Baumgarten allowing Leopard to go back to work with
no restrictions following the accident that caused Leopard’s symptoms and resulted in him leaving work. (ECF No.
10-8 at 35).

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of pain and loss of range of motion had not been cured or resolved” and noted the “sedating side
effects” of Leopard’s medications. (ECF No. 26 at 2). Accordingly, Leopard contends that Dr.
Saad’s opinion that Leopard would be “off task and miss work for an unacceptable amount of
time” should have been given more weight. (ECF No. 26 at 2).
First, the court notes that Dr. Saad was an examining source and not a treating physician.
(ECF No. 10-12 at 19) (stating that Dr. Saad explained to Leopard “that he was to be evaluated
only and that no treatment would be provided.”). Accordingly, Dr. Saad’s opinion is not entitled
to controlling weight. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Additionally, the ALJ stated
that the reason she gave partial weight to Dr. Saad’s opinion, with little weight given to the
portion of the opinion regarding frequent breaks and absences, is that such determination was
contradictory to the evidence in the record. (ECF No. 10-2 at 31). Specifically, the ALJ stated
that the opinion was “inconsistent with [Leopard’s] treatment history showing that his symptoms
are relatively controlled with medications and with imaging and other diagnostic studies that
demonstrated only mild findings.” Id. As stated above, if an ALJ determines that a medical
opinion is inconsistent with the other clinical or substantial evidence, she may give the opinion
less weight. See Chater, 76 F.3d at 585.
As noted by the ALJ, Dr. Saad’s statements regarding Leopard’s allegedly debilitating
pain are inconsistent with the evidence in the record that Leopard’s symptoms were controlled
with medication. Notably, Dr. Saad’s opinion, dated August 14, 2013, was written prior to
Leopard receiving any narcotic pain medication from Dr. Scott. Dr. Scott did not prescribe
Leopard hydrocodone to help with his pain until October 28, 2014, and thereafter, Dr. Scott
stated that Leopard’s symptoms were “controlled conservatively” and that the medication
worked “pretty well to control things.” (ECF Nos. 10-12 at 66, 10-13 at 3–4). Additionally, while
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Leopard contends in his objections that Dr. Saad “recognized the sedating side effects from the
medication,” (ECF No. 26 at 2), he does not cite to anywhere in the record to support this. In
thoroughly reviewing Dr. Saad’s notes, the court has found no mention of “sedating side effects”
from any medication. As discussed above, the court’s review is not meant to reweigh the
evidence, evaluate credibility, or substitute its judgement for the ALJ’s. Craig, 76 F.3d at 589.
The ALJ explained that Dr. Saad’s opinion was given only partial weight because it was
inconsistent with the record, and the court finds that this is supported by substantial evidence.
Accordingly, the court overrules this objection.
Finally, the magistrate judge determined that the ALJ properly considered Leopard’s
subjective symptoms based on the evidence in the record. (ECF No. 23–28). Leopard objects to
this finding, stating that the ALJ did not take into consideration the side effects of the
medications or the fact that the symptoms were not “cured or fully resolved” by medications.
(ECF No. 26 at 2). Additionally, Leopard argues that the ALJ’s finding that Leopard’s
“complaints were no[t] consistent with his one-time report from June 2014 or the reports from
November 2013 or August 2014” assumed that Leopard’s “medical and physical condition [was]
static” and that such finding did not fully consider the symptoms as reported at the hearing
before the ALJ. Id.
The fact that a symptom is not “cured or fully resolved” does not render such symptom
disabling.

See Gross, 785 F.2d at 1166 (stating that “[i]f a symptom can be reasonably

controlled by medication or treatment, it is not disabling”). Furthermore, the ALJ provided a
thorough explanation of Leopard’s symptoms and subjective complaints and determined that
while Leopard’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms,” Leopard’s statements regarding “the intensity, persistence and limiting
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effects of [those] symptoms [was] not entirely consistent with the medical evidence and other
evidence in the record.” (ECF No. 10-2 at 25). In reaching this conclusion, the ALJ noted that
Leopard gave contradicting answers regarding his daily activities; that his medical records
indicated

conservative

treatment

consisting

of

injections,

physical

therapy,

and

pharmacotherapy; and that medications were effective in treating Leopard’s symptoms. Id. at 25–
26. The ALJ then gave a detailed synopsis of the medical reports when evaluating Leopard’s
symptoms in light of the medical evidence.
In considering the contradictory statements regarding his daily activities, the ALJ
discussed, in detail, Leopard’s hearing testimony, Leopard’s “Function Report,” and the
statements that Leopard made to his physicians. Id. at 25. Accordingly, Leopard’s assertion that
the ALJ did not “fully consider his symptoms as reported at the hearing” is without merit.7
Likewise, Leopard’s contention that the ALJ ignored the side effects of his medication is without
merit. In reviewing Leopard’s symptoms, the ALJ specifically stated that Leopard “reported he
takes pain medication that makes him drowsy.” Id. Accordingly, the court overrules this
objection because the ALJ’s evaluation of Leopard’s subjective symptoms was supported by
substantial evidence.
CONCLUSION
Having conducted the required de novo review of the issues to which Leopard has
objected, the court adopts the Report (ECF No. 24) for the reasons stated herein. The court
concludes that the Commissioner’s findings were supported by substantial evidence and are

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Furthermore, the ALJ relied on more than Leopard’s contradictory statements about his daily functioning when
evaluating his symptoms. In viewing all the evidence, the ALJ determined that Leopard’s subjective statement of his
symptoms was inconsistent with much of the record. Accordingly, the fact that the ALJ only had statements from
2013 and 2014 regarding Leopard’s daily activities does not undermine the ALJ’s analysis, especially since Leopard
is contending a disability onset date of July 2011. Furthermore, medical reports from 2016 indicate that Leopard’s
physical limitations “remain[ed] the same” as when he was treated in 2013. (ECF No. 10-13 at 9, 12, 24).

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without legal error. Accordingly, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
January 18, 2019

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