Dawkins v. Commissioner of Social Security Administration
ORDER RULING ON REPORT AND RECOMMENDATION adopting 18 Report and Recommendation and affirming the decision of the Commissioner. Signed by Honorable Cameron McGowan Currie on 3/6/18. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Civil Action No. 8:16-cv-3111-CMC
OPINION AND ORDER
Nancy A. Berryhill,
Acting Commissioner of Social Security
Through this action, Plaintiff seeks judicial review of the final decision of the
Commissioner of Social Security denying his claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”). Plaintiff appealed pursuant to 42 U.S.C. § 405(g).
The matter is currently before the court for review of the Report and Recommendation
(“Report”) of Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. §
636(b)(1)(B) and Local Rules 73.02(b)(2)(a) and 83.VII.02, et seq., D.S.C.
The Report, filed January 29, 2018, recommends the decision of the Commissioner be
affirmed. ECF No. 18. On February 12, 2018, Plaintiff filed objections to the Report. ECF No.
20. On February 22, 2018, the Commissioner filed a response to Plaintiff’s objections. ECF No.
21. For the reasons stated below, the court adopts the Report and affirms the decision of the
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 to which specific objection is made, and the court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
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 . . . .”1 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
“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).
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 [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.
Plaintiff applied for DIB and SSI on October 24, 2012, alleging disability as of February
1, 2012, due to the following severe impairments: lumbar spine degenerative disc disease, L5
anterolisthesis, L4-5/L5-S1 facet arthropathy, and obesity. R2. at 30. Plaintiff also has hearing
loss and drug/alcohol abuse. R. at 30-31. Plaintiff’s application was denied initially and upon
reconsideration. On September 25, 2014, a hearing was held before an Administrative Law
Judge (“ALJ”). On January 28, 2015, the ALJ issued a decision, finding Plaintiff was not
disabled within the meaning of the Act and had the ability to perform light, unskilled work with
limitations. Plaintiff sought Appeals Council review, and submitted additional evidence, which
was made part of the record. The Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision, concluding the new evidence did not provide a basis for changing the ALJ’s
Citations to the Record are denoted by “R.”
decision, and making the determination of the ALJ the final decision of the Commissioner.
Plaintiff filed this action September 14, 2016. ECF No. 1.
The Magistrate Judge recommends the court affirm the Commissioner’s decision.
Plaintiff objects to the Report, arguing the ALJ’s rejection of a physician’s assistant’s (“PA”)
opinion was unreasonable, and new evidence requires the fact finder determine its probative
value and the Appeals Council failed to consider the new evidence. ECF No. 20.
1) Physician’s Assistant’s Opinion
Plaintiff first argues the ALJ erred in not giving controlling weight to a treating PA’s
opinion Plaintiff is limited to sedentary work. ECF No. 20. Plaintiff relies on a case from this
court finding the opinion of a non-acceptable treating source, such as a licensed clinical social
worker, can outweigh the opinion of non-treating physician sources. See id. at 2 (citing Munns v.
Astrue, 5:11-cv-393, 2012 WL 3264999 (D.S.C. Aug. 10, 2012)). Plaintiff argues the ALJ
rejected the PA’s opinion because (1) she was a physician’s assistant and (2) based on a mistake
regarding the number of times she treated Plaintiff. ECF No. 20 at 5. In response, Defendant
argues this issue was presented to and ruled upon by the Magistrate Judge, who specifically
found the ALJ properly evaluated the medical opinion evidence. ECF No. 21.
Physician’s assistants are medical sources who do not fall within the Commissioner’s list
of acceptable medical sources, but instead are treated as “other sources” whose information “may
be based on special knowledge of the individual and may provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p3; see also 20
C.F.R. § 404.1514(d) and § 416.913. SSR 06-03p instructs the ALJ to evaluate the opinion of
such a non-acceptable medical source, and that opinion “may outweigh the opinion of an
acceptable medical source, including the medical opinion of a treating source.” The factors for
considering opinion evidence from a medical source who is not an “acceptable medical source”
are the same as for acceptable medical sources, and include: how long the source has known and
how frequently the source has seen the individual, how consistent the opinion is with other
evidence, and how well the source explains the opinion, among others. SSR 06-03p. Where
there is a conflict in the medical opinion evidence, the ALJ must fully explain the weight
assigned to each source and the reasons for assigning such weight. See Gordon v. Schweiker,
725 F.2d 231, 235-36 (4th Cir. 1984).
The ALJ noted she gave little weight to PA Ivey’s opinion Plaintiff was unable to
perform more than sedentary full-time work, because “she is not an acceptable medical source,
and because she only saw the claimant on two occasions.” R. at 33. In analyzing the ALJ’s
reasoning, the Magistrate Judge noted PA Ivey’s “treatment history is not substantial and the
findings are limited.” ECF No. 18 at 23. This court agrees. PA Ivey did not explain her
opinion, but merely filled in a form and stated Plaintiff should be limited to sedentary work
SSR 06-03p has been rescinded as of March 27, 2017; however, it was in effect when
Plaintiff’s case was filed and determinations made.
because of arthritis in his spine and increased pain with sitting and walking.
R. at 371.
Plaintiff’s medical records of his visits with PA Ivey do not contain any work-related limitations.
R. at 276-278. The court agrees with the Magistrate Judge’s analysis of this issue, including
declining to rule on Plaintiff’s argument the Grids direct a finding of disability if he is limited to
sedentary work. This objection is overruled.
2) New Evidence
Plaintiff next argues the ALJ failed to consider the new evidence submitted by Dr.
Loring, Psy.D., which he believes “requires remand.” ECF No. 20 at 5. In response, Defendant
again notes the Magistrate Judge “fully addressed” this issue, as it was raised in Plaintiff’s brief,
and found substantial evidence supports the Commissioner’s decision. ECF No. 21.
The court finds Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011) does not require remand,
as the Appeals Council made findings about the additional evidence and the court cannot say
these findings are contrary to the weight of the record. The Appeals Council found the report
from Dr. Loring that Plaintiff was illiterate did “not change the weight of the evidence because it
is contrary to the evidence in the file.” R. at 2. The Appeals Council’s denial cited Plaintiff’s
statements he could read and understand and write more than his name, he made C’s in his
classes in school, received printed instructions regarding his discharge from the hospital and did
not indicate trouble reading them, and filled out the Medications form without issues. Id. The
Magistrate Judge found the additional evidence did not require remand because it was essentially
cumulative, noting the ALJ was aware Plaintiff required help to fill out forms and read the test to
him when he applied for his driver’s license. The court agrees Meyer does not require reversal
because the record provides an adequate explanation of the Commissioner’s decision and
substantial evidence supports her findings. This objection is overruled.
For the reasons set forth above, the court adopts the Report and Recommendation of the
Magistrate Judge and affirms the decision of the Commissioner.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 6, 2018
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