Higginbotham-Dickens v. Commissioner of Social Security Administration

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATION accepting 22 Report and Recommendation. Signed by Honorable J Michelle Childs on 7/22/19. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Karen Higginbotham-Dickens,

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Plaintiff,
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v.
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Andrew M. Saul, Commissioner of Social )
Security Administration, 1
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Defendant.
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___________________________________ )

Civil Action No. 6:18-cv-01683-JMC
ORDER

This matter is before the court upon review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 22), filed on June 17, 2019, recommending that
Commissioner Andrew M. Saul’s (“the Commissioner”) decision denying Plaintiff Karen
Higginbotham-Dicken’s (“Plaintiff”) claim for disability insurance benefits (“DIB”) be reversed
under sentence four of 42 U.S.C. § 405(g) and remanded for further proceedings. (Id. at 20.) For
the reasons stated herein, the court ACCEPTS the Magistrate Judge’s Report (ECF. No 22),
incorporating it herein, REVERSES the decision of the Commissioner, and REMANDS the
action for additional administrative proceedings.

On June 17, 2019, Andrew M. Saul, became the Commissioner of Social Security Administration.
See Jim Borland, Social Security Welcomes its New Commissioner, SOC. SEC. ADMIN.: BLOG (June
17, 2019), https://blog.ssa.gov/social-security-welcomes-its-new-commissioner/. Thus, Andrew
M. Saul is automatically substituted as a party in the instant matter. See FED. R. CIV. P. 25(d) (“The
officer’s successor is automatically substituted as a party. Later proceedings should be in the
substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be
disregarded.”). The court directs the Clerk of Court for the United States District Court for the
District of South Carolina to substitute Andrew M. Saul as the Commissioner of Social Security
Administration for all pending social security cases.
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I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which this court incorporates
herein without a full recitation. (ECF No. 22.) As a brief background, the Administrative Law
Judge (“ALJ”) determined that Plaintiff was not disabled for purposes of the Social Security Act
(“the Act”) on May 31, 2013, and denied Plaintiff’s claim for DIB. (Id. at 2.) The Appeals Council
denied Plaintiff’s request for review on June 30, 2015. (Id.) Thus, the ALJ’s decision then became
the final decision of the Commissioner (Id.) See also Meyer v. Astrue, 662 F. 3d 700, 704 (4th Cir.
2011). Plaintiff filed her original Complaint in United States District Court for the District of South
Carolina on September 3, 2014. (ECF No. 22 at 2.) The case was remanded to the Commissioner
for further review on January 15, 2016. See Higginbotham-Dickens v. Comm’r Soc. Sec. Admin.,
C/A No. 6:14-cv-03528-JMC, 2016 WL 199426, at *1 (D.S.C. Jan. 15, 2016). A second
administrative hearing was held on November 1, 2016. (ECF No. 22.) On February 27, 2017, the
ALJ again found that Plaintiff was not disabled under sections 216(i) and 223(d) of the Act. (Id.)
The ALJ’s finding became the final decision of the Commissioner when the Appeals Council again
denied Plaintiff’s request for review on April 18, 2018. (Id.) Plaintiff then filed the instant action
on June 18, 2018. (ECF No. 1.)
The ALJ concluded that although Plaintiff suffered from severe impairments, including
chronic migraines, asthma, recurrent balance deficit, and fatigue, Plaintiff “did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . .” (ECF No. 22 at 3.) In
addition, the ALJ concluded that Plaintiff had the residual functional capacity (“RFC”) to perform
sedentary work, as defined in 20 C.F.R. § 404.1567(a), with additional limitations that she could
not stand or walk for more than an aggregate of two (2) hours and could no more than occasionally

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stoop, twist, balance, crouch, kneel, and climb stairs or ramps. (Id.) The ALJ noted that Plaintiff
required a cane or rollator walker for ambulation (Id.) Furthermore, the ALJ determined that
Plaintiff was able to perform past relevant work as a patient representative, and this work did not
require the performance of work-related activities precluded by the claimant’s RFC. (Id. at 3.)
In the Report, the Magistrate Judge reasoned that the ALJ’s treatment of the VA’s disability
determination failed to include the appropriate evaluation as ordered by the court on January 15,
2016. (Id. at 18.) Specifically, the Magistrate Judge found that it is “unclear that the ALJ applied
Bird in evaluating Plaintiff’s VA rating as he neither references Bird nor indicates that he
recognized that a VA rating must be afforded substantial weight unless the record clearly
demonstrates that such a deviation is appropriate.” (Id.) See also Bird v. Comm'r Soc. Sec. Admin.,
699 F.3d 337 (4th Cir. 2012) (stating that a disability rating by either the VA or SSA is highly
relevant to the disability determination of the other agency). Furthermore, the Magistrate Judge
determined that the presumption of substantial weight was not sufficiently rebutted by the ALJ
and that the ALJ did not perform his duty under Bird to indicate what portions of the record clearly
indicated that deviation from the VA’s determination is appropriate. (Id. at 18–19.) The Magistrate
Judge noted that in recommending remand, he does not suggest that the ALJ must provide
substantial weight to the VA’s rating, but in order to deviate from providing substantial weight the
“ALJ is required to provide explanation for the deviation from the record.” (Id. at 20.) On this
basis, the Report recommended that the court reverse the decision of the Commissioner and
remand the case with instructions to the ALJ to follow the specific method for weighing VA
disability ratings as prescribed in Bird. (Id.)
The parties were apprised of their opportunity to file specific objections to the Report on
June 17, 2019. (ECF No. 22.) Objections to the Report were due by July 1, 2019. (Id.) On June 27,

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2019, the Commissioner notified the court that he would not object to the Magistrate Judge’s
Report. (ECF No. 24 at 1.) Plaintiff has not filed any objection to the Report.
II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance to 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02(B)(2)(a) for the District of South Carolina. The Magistrate Judge makes
only a recommendation to this court, which has no presumptive weight. See Mathews v. Weber,
423 U.S. 261, 270 (1976). The responsibility to make a final determination remains with this court.
Id. at 271. As such, the court is charged with making a de novo determination of those portions of
the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1). See also Fed. R. Civ.
P. 72(b)(3). In the absence of specific objections to the Magistrate Judge’s Report, the court is not
required to give any explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need not conduct
a de novo review, but instead must only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond v. Colonial Life and Acc. Ins. Co., 416
F. 3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Thus, the
court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation
or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
III. DISCUSSION
In the absence of objections to the Magistrate Judge’s Report, this court is not required to
provide an explanation for adopting the recommendation. See Camby, 718 F.2d at 199.
Furthermore, failure to file specific written objections to the Report results in a party’s waiver of
the right to appeal from the judgment of the District Court based upon such recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985). The court concludes that the Magistrate

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Judge’s Report accurately summarizes the law and correctly applies it to the instant case. (ECF
No. 22.) Because no specific objections were filed by either party and the court discerns no clear
error within the Report, the court adopts the Report herein. Diamond, 416 F.3d at 315; Camby,
718 F. 2d at 199.
IV. CONCLUSION
After a thorough review of the Report and the record in this case, the court ACCEPTS the
Magistrate Judge’s Report and Recommendation (ECF No. 22) and incorporates it herein.
Therefore, the decision of the Commissioner of Social Security Administration is REVERSED,
and this case is REMANDED for further administrative action in accordance with 42 U.S.C. §
405(g).
IT IS SO ORDERED.

United States District Judge

July 22, 2019
Columbia, South Carolina

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