Brown v. Commissioner of Social Security Administration

Filing 28

ORDER AND OPINION adopting 23 Report and Recommendation. The Court AFFIRMS the decision of the Commissioner denying Plaintiff's claim for SSI. Signed by Honorable J Michelle Childs on 3/27/2017.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Laura S. Brown,
Plaintiff,
v.
Nancy A. Berryhill, acting commissioner
of social security,
Defendant.

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Civil Action No. 8:15-cv-04094-JMC

ORDER AND OPINION

Plaintiff Laura S. Brown filed this action seeking judicial review of the final decision of
the Commissioner of the Social Security Administration (the “Commissioner”) pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3). (ECF No. 1.)
This matter is before the court for review of the Report and Recommendation (“Report”)
of United States Magistrate Judge Jacquelyn D. Austin, issued in accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02 (B)(2)(a) (D.S.C.). (ECF No. 23.) On January 30, 2017,
Magistrate Judge Austin recommended that the court affirm the Commissioner’s final decision to
deny Plaintiff’s claim for Supplemental Security Income (“SSI”). (ECF No. 23 at 25.) Plaintiff
timely filed Objections to the Report (“Objections”) on February 13, 2017. (ECF No. 25.)
For the reasons set forth below, the court ACCEPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 23) and AFFIRMS the decision of the Commissioner denying
Plaintiff’s claim for SSI.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The Report contains a thorough recitation of the relevant factual and procedural
background of this matter. (ECF No. 23 at 2-3.) The court concludes, upon its own careful
review of the record, that the Report’s factual and procedural summation is accurate, and the
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court adopts this summary as its own. The court will only reference background pertinent to the
analysis of Plaintiff’s claims.
Plaintiff was born on December 22, 1967, and is presently 49 years old. (ECF No. 11-5 at
11.) Plaintiff filed an application for SSI on October 16, 2012, which alleged disability since
January 1, 1999. (ECF No. 11-5 at 11.)1 Plaintiff claimed she suffered from the following severe
impairments: obesity, coronary artery disease, and diabetes mellitus. (ECF No. 11-2 at 15.)
Plaintiff’s application was denied on April 24, 2013 (ECF No. 11-3 at 70-82), and upon its
reconsideration on October 31, 2013 (ECF No. 11-3 at 85-98). As a result, Plaintiff requested an
administrative hearing on January 17, 2014. (ECF No. 11-4 at 27-28.) On October 24, 2014, the
Administrative Law Judge Richard L. Vogel (the “ALJ”) found that Plaintiff was not under
disability as defined by the Social Security Act (“SSA”) because a Plaintiff could perform a
significant number of jobs in the national economy. (ECF No. 11-2 at 12-25 (citing SSA §
1614(a)(3)(A)).) Thereafter, the Appeals Council denied Plaintiff’s request for review on
November 17, 2015, making the ALJ’s decision the final decision of the Commissioner for
purposes of judicial review. (ECF No. 11-2 at 2.)
Subsequently, on October 2, 2015, Plaintiff commenced an action in the United States
District Court for the District of South Carolina pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) to
obtain judicial review of the Commissioner’s final decision denying Plaintiff’s claim for SSI.
(ECF No. 1.)
On January 30, 2017, Magistrate Judge Austin issued her recommendation that the
Commissioner’s final decision denying Plaintiff’s claims for SSI should be affirmed. (ECF No.
23.) Plaintiff timely filed Objections to the Magistrate Judge’s Report on February 13, 2017.
The court observes that, pursuant to 20 C.F.R. § 416.330, Plaintiff’s SSI claim began on the
date of her application. (ECF No. 23 at 2, n.3)
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(ECF No. 25.) The Commissioner filed a Reply to Plaintiff’s Objections to the Magistrate
Judge’s Report and Recommendation on February 23, 2017 (ECF No. 26.)
II. LEGAL STANDARD
The Magistrate Judge makes only a recommendation to this court, which has no
presumptive weight. Thus, the responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976.) The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections
are filed, and reviews those portions which are not objected to for clear error, including those
portions to which only “general and conclusory” objections have been made. See Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); see also Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court
may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge 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 SSA is a
limited one. Section 405(g) of the SSA 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 if 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.” Flack

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v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “The statutorily granted right of review
contemplates more than an uncritical rubber stamping of the administrative agency.” Id. “[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.
III. ANALYSIS
A. The Magistrate Judge’s Review
In the Report, the Magistrate Judge addressed Plaintiff’s arguments that (1) “the ALJ’s
decision is not supported by substantial evidence because the ALJ failed to properly assesses
[sic] Plaintiff’s [residual functional capacity] in accordance with [Social Security Ruling] 96-8p”
and (2) the ALJ “failed to properly evaluate Plaintiff’s credibility in accordance with [SSR] 967p.” (ECF No. 23 at 3.)
First, the Magistrate Judge provided that the ALJ’s evaluation of Plaintiff’s residual
functional capacity (“RFC”) was supported by substantial evidence:
To assess a claimant’s RFC, the ALJ must consider all relevant evidence in the
record, including medical history, medical signs, laboratory findings, lay
evidence, and medical source statements. SSR 96-8p specifically states, “The
RFC assessment must always consider and address the medical source opinions. If
the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” Thus, an ALJ’s RFC
assessment will necessarily entail assessing the credibility of any alleged
limitations, including assessing the credibility of testimony offered by the
claimant.
In considering Plaintiff’s RFC, the ALJ stated that he followed the two-step
process outlined in the regulations requiring him to first determine whether there
is an underlying medically determinable physical or mental impairment that could
be expected to produce Plaintiff’s pain or other symptoms; and, second, to
evaluate the intensity, persistence, and limiting effects of the Plaintiff’s symptoms
to determine the extent to which they limit Plaintiff’s functioning.
Upon reviewing the ALJ’s decision, it is clear the ALJ found Plaintiff’s
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hospitalizations were more the result of her non-compliance with treatment and
possible drug-seeking behavior than with the severity of her impairments. The law
allows the ALJ to considered [sic] Plaintiff’s noncompliance with her medications
in determining credibility. The ALJ found that, based on the evidence, Plaintiff’s
coronary artery disease was adequately accommodated for in limiting Plaintiff to
a range of sedentary work. The ALJ concluded that ‘in light of the evidence
suggesting the claimant may have been overstating her symptoms, the
undersigned cannot find the claimant’s allegation that she is incapable of all work
activity to be credible.’ And while Plaintiff now tries to argue that she will miss
too many days of work due to hospitalizations, thus, making her unable to
perform sedentary work, there is no opinion from a treating physician opinion as
to such limitation. Accordingly, the [c]ourt finds that the ALJ’s RFC
determination is supported by substantial evidence.
(ECF No. 23 at 24 (citations omitted).)
Next, the Magistrate Judge considered the ALJ’s determination of Plaintiff’s credibility:
As outlined above, the ALJ properly followed the two-part test in determining
credibility and adequately explained his consideration of Plaintiff’s alleged
symptoms and limitations. While Plaintiff disagrees with the ALJ’s decision, the
ALJ adequately explained his conclusion that Plaintiff engaged in drug-seeking
behavior rather than behavior showing efforts to obtain pain relief. The ALJ
explained that the record contained statements by treating physicians suggesting
that Plaintiff was not being completely truthful regarding the need for narcotic
pain medications from various doctors at the same time. As a result of Plaintiff’s
history of drug seeking behavior and her failure to comply with treatment, the
ALJ properly assumed some exaggeration of the Plaintiff’s complaints of pain. It
is not the duty of the [c]ourt to reweigh evidence or make credibility
determinations in evaluating whether a decision is supported by substantial
evidence, ‘[w]here conflicting evidence allows reasonable minds to differ,’ the
[c]ourt must defer to the Commissioner’s decision. The court declines to reweigh
evidence already considered by the ALJ; such an exercise is contrary to law.
(ECF No. 23 at 24-25 (citations omitted).)
Based on the reasons above, the Magistrate Judge concluded that the ALJ’s decision be
affirmed because the RFC assessment and the credibility analysis are supported by substantial
evidence. (ECF No. 23 at 25.)
B. The Plaintiff’s Objections and the Commissioner’s Reply
Plaintiff argues that the Magistrate Judge erred by finding that (1) the ALJ “reasonably

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considered [Plaintiff’s] inability to sustain work on a regular basis,” and (2) the ALJ “properly
considered [Plaintiff’s] credibility.” (ECF No. 25 at 1, 3.)
For a first Objection, Plaintiff asserts that “the ALJ failed to consider her frequent
hospitalizations, which account for well beyond the level of absenteeism from work that would
be allowable in a typical job setting, and account for them in the RFC findings.” (ECF No. 25 at
1.) Plaintiff specifically states that:
[t]he Magistrate Judge’s [R]eport fails to address the fact that [Plaintiff] was
admitted into the hospital and retained there for more days than would be allowed
by a typical employer. It appears that the Magistrate Judge is requiring a treating
physician’s opinion that [Plaintiff] required frequent hospitalizations. However,
the Magistrate Judge fails to explain why she does not consider the admitting
physician’s opinion that [Plaintiff] required hospitalization to be a valid opinion.
Furthermore, the Magistrate Judge’s conclusion that the ALJ considered
absenteeism but dismissed it for reasons cited is a post hoc argument that should
be dismissed.
(ECF No. 25 at 2 (citing NLRB v. Kentucky River Cmty. Care, Inc., 121 S.Ct. 1861, n.1 (2001);
Loyola Univ. of Chicago v. Bowen, 905 F.2d 1061, 1070 (7th Cir. 1990)).)
Next, “[Plaintiff] argues that the ALJ’s boilerplate language and a finding that
[Plaintiff]’s impairments could reasonably be expected to cause ‘some’ of the alleged symptoms
does not make a proper credibility finding as required in Craig v. Chater, 76 F.3d at 595, (4th
Cir. 1996).” (ECF No. 25 at 3.) Moreover, Plaintiff claims that the ALJ did not adhere to the
“pain rule, which establishes that subjective complaints of pain and physical discomfort could
give rise to a finding of total disability, even if the complaints are not fully supported by
objective evidence.” (ECF No. 25 at 3.)
Finally, Plaintiff asserts that “[t]he Magistrate Judge responds that the ALJ properly
assumed some exaggeration of the Plaintiff’s symptoms and complaints of pain based on her
history of drug seeking behavior and her failure to comply with treatment. [Plaintiff] objects to

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the reliance on one single factor in assessing her credibility.” (ECF No. 25 at 3.)
In response, the Commissioner agrees with the Magistrate Judge’s findings, and asserts
that “[b]ecause these issues have already been fully presented in this case, the Commissioner
relies on the reasoning set forth in Magistrate Judge Austin’s [Report], as well as the arguments
set forth in the Commissioner’s opening brief, in responding to Plaintiff’s Objections.” (ECF No.
26 at 2.)
C. The Court’s Ruling
Upon review of the Report, the court finds that the Magistrate Judge performed a
thorough analysis of the record. In the Objections, Plaintiff rehashes her earlier arguments that
the ALJ’s decision was improper because (1) the ALJ did not consistently consider
noncompliance related to Plaintiff’s hospitalizations, and (2) the ALJ failed to comply with 967P when assessing Plaintiff’s credibility. (ECF No. 23 at 20, 23.)
1. Plaintiff’s Inability to Sustain Work on a Regular Basis
Objections to the Magistrate Judge’s Report must be specific. See U.S. v. Schronce, 727
F.2d 91, 94, n.4 (4th Cir. 1984) (failing to file specific objections constitutes a waiver of a
party’s right to further judicial review, including appellate review, if the recommendation is
accepted by the district judge); see also Camby, 718 F.2d at 199 (explaining that the absence of
specific objections to a magistrate judge’s report and recommendation relieves this court from
providing an explanation for adopting the recommendation.)
The court observes that Plaintiff’s Objections under the first heading, “objections to the
argument that the ALJ reasonably considered [Plaintiff’s] inability to sustain work on a regular
basis,” are specific only to the issue of credibility. (ECF 25 at 1, 2 (citing ECF No. 23 at 23-24).)
Therefore, after a thorough review of the record, the court finds that the Report contains no clear

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error related to Plaintiff’s first Objection (ECF No. 25 at 1).
2. Whether the ALJ Properly Considered Plaintiff’s Credibility
When determining credibility, “[f]irst, there must be objective medical evidence showing
the existence of a medical impairment(s) which results from anatomical, physiological, or
psychological abnormalities and which could reasonably be expected to produce pain or other
symptoms alleged.” Chater, 76 F. 3d at 594 (citing 20 C.F.R. §§ 416.929(b), 404.1529(b)). Once
the threshold determination has been met, the intensity and persistence of the plaintiff’s pain and
the extent to which it affects her ability to work are then evaluated. Id. at 595. “Under the
regulations, this evaluation must take into account not only the claimant’s statements about her
pain, but also ‘all the available evidence,’ including the claimant’s medical history, medical
signs, and laboratory findings . . . any objective medical evidence of pain (such as evidence of
reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.) . . . and any other
evidence relevant to the severity of the impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any medical treatment taken to alleviate it, see 20
C.F.R. §§ 416.929(c)(3) & 404.1529(c)(3).” Id. at 595. “Credibility is the providence of the
ALJ.” Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992).
When an ALJ has given specific and legitimate reasons for disbelieving a plaintiff’s testimony,
the reviewing court should “generally treat credibility determinations made by an ALJ as binding
upon review.” Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988).
Plaintiff’s Objections regarding her credibility merely expands on issues already
considered by the Magistrate Judge. (Compare ECF No. 23 at 24 with ECF No. 25 at 3.) As
stated above, the Magistrate Judge determined that the ALJ “properly assumed some
exaggeration of the Plaintiff’s symptoms and complaints of pain.” (ECF No. 23 at 24 (citing

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Williamson v. Colvin, C/A No. 8:12-2887-JFA-JDA, 2014 WL 1094404, at *14 (D.S.C. March
18, 2014)).) “Whenever a claimant’s statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by objective medical evidence,
the ALJ must make a finding on the credibility of the claimant’s statements based on a
consideration of the entire case record.” SSR 96-7p; see also Hammond v. Heckler, 765 F.2d
424, 426 (4th Cir. 1985) (explaining that the credibility determination “must refer specifically to
the evidence informing the ALJ’s conclusions”). Further, the Magistrate Judge acknowledged
that the ALJ can consider noncompliance when determining credibility. (ECF No. 23 at 23
(citing Hunter v. Sullivan, 993 F.2d 31, 36 (4th Cir. 1993)).)
In his assessment of Plaintiff’s credibility, the ALJ first recognized her noncompliance:
The claimant’s history of medical non-compliance detracts from the credibility of
her testimony. For instance, it was reported by her primary care physician in
February 2013, that she had not been compliant with her medications and had not
been so in more than a year. He also reported that the claimant had not been seen
at the facility in over a year. (Exhibit 7F, page 2) In March 2013, it was reported
in March 2013 [sic], that the claimant had presented to the hospital two weeks
earlier, but left against medical advice. It was also noted that the claimant had
been off Plavic for two weeks despite medical advice and that it sounded like she
had never got [sic] the prescription filled. (Exhibit 16F, page 1).
(ECF No. 11-2 at 23.)
The ALJ also determined that Plaintiff’s credibility was reduced because of her
history of drug-seeking behavior:
Also detracting from the claimant’s credibility is her apparent drug-seeking
behavior. For example, it was noted on September 13, 2011, that the claimant
became upset with her treating physician when her request for pain medication
was denied. (Exhibit 1F, page 10) In addition, records from Doctor’s Care
indicated that the claimant was seen on numerous occasions during the period
from September 2011 through March 2013 for various pain complaints with little
in the way of objective findings and was consistently prescribed pain medications.
(Exhibits 2F and 10F) In addition, her treating physician reported in February
2013 at Beaufort Jasper Hampton Comprehensive Health, that the claimant was
asking for more narcotics and noted that she had a history of narcotic abuse.
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(Exhibit 7F, page 2) In addition, a nurse practitioner with the facility indicated in
April 2013, that she had reviewed the claimant’s patient drug history from Rite
Aid pharmacy and discovered that she had received 4+ prescriptions for
controlled substance pain medications over a two-month period from three
different providers . . . The claimant presented again in August 2013 with
continued complaints of back pain; however, it was noted that her recent CT of
the thoracic and lumbar spines had been unremarkable. Her physical exam was
also unremarkable. She was prescribed Motrin . . . It was noted in February 2014,
that the claimant had been referred to a pain management specialist in the past,
but that she had failed to keep her scheduling appointments. The claimant
requested a refill of Tylenol #4, but it was noted that drug monitoring had
revealed that she had received 60 tablets of the medication less than a month
earlier. (Exhibit 17F, page 26) Dr. Dalbow reported in August 2014, that the
claimant presented with request for sleep and pain medications although her main
complaint was that of oral herpes simplex. (Exhibit 17F, page 11).
(ECF No. 11-2 at 23.)
After thorough review of the reasons above, the court finds that the ALJ provided
specific and legitimate reasons for questioning the credibility of Plaintiff. As such, the court
finds Plaintiff’s Objections unpersuasive because they do not suggest any new arguments that
would cause the court to reject the Report. See e.g., Felton v. Colvin, C/A No. 2:12-cv-558, 2014
WL 315773, at *7 (E.D. Va. Jan. 28, 2014) (explaining “[t]he court may reject perfunctory or
rehashed objections to [Reports] that amount to ‘a second opportunity to present the arguments
already considered by the [Magistrate Judge]’”). The court finds no reason to disturb the Report.
IV. CONCLUSION
For the reasons set forth below, the court ACCEPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 23) and AFFIRMS the decision of the Commissioner denying
Plaintiff’s claim for SSI.
IT IS SO ORDERED.

United States District Judge
March 27, 2017
Columbia, South Carolina
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