Long v. Commissioner of Social Security Administration

Filing 19

ORDER RULING ON 14 REPORT AND RECOMMENDATION. The Court concurs in the recommendation of Magistrate Judge Marchant and adopts the Report and Recommendation. The decision of the Commissioner is affirmed. Signed by Honorable Mary G Lewis on 02/25/2014. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
David Michael Long,

) Civil Action No.: 9:12-3461-MGL
)
Plaintiff, )
)
v.
)
OPINION AND ORDER
)
Carolyn W. Colvin,1
)
Acting Commissioner of Social Security,
)
)
Defendant. )
__________________________________
Plaintiff David Michael Long (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 405(g)
to obtain judicial review of a final decision of the Defendant, Acting Commissioner of Social
Security (“Commissioner”), denying his claims for Disability Insurance Benefits (“DIB”). In
accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(a), D.S.C., this matter was
referred to United States Magistrate Judge Bristow Marchant for pretrial handling. On December
4, 2013, the Magistrate Judge issued a Report and Recommendation in which he determined that the
record contains substantial evidence to support the conclusion of the Commissioner that the Plaintiff
was not disabled within the meaning of the Social Security Act during the relevant time period.
Accordingly, the Magistrate Judge recommends affirming the Commissioner’s decision. (ECF No.
14.) Plaintiff filed Objections on December 16, 2013 (ECF No. 15), and the Commissioner filed a
reply on January 2, 2014 (ECF No. 17.) For the reasons stated below, the Court adopts the Report
and Recommendation and affirms the Commissioner’s decision.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as Defendant in this lawsuit.

I. FACTUAL AND PROCEDURAL BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and standards of law
on this matter, and the Court incorporates them and summarizes below in relevant part. Plaintiff
was 41 years old on his alleged disability onset date. (Tr. at 31.) Plaintiff alleges disability
beginning September 30, 2009 due to an inability to walk or stand for long periods of time caused
by constant back and hip pain and a “crushed” foot. (Tr. at 165-168, 188, 193.) Plaintiff has past
work experience as a corrections and security officer and completed high school. (Tr. at 63, 194.)
Plaintiff filed an application for disability insurance benefits (“DIB”) on October 14, 2009. (Tr. at
22.) Plaintiff’s application was denied initially and upon reconsideration. (Tr. at 22.) A hearing
before an Administrative Law Judge (“ALJ”) was held on October 21, 2011. (Tr. at 22.) The ALJ
found that Plaintiff was not under a disability as defined by the Social Security Act in a decision
issued November 17, 2011. (Tr. at 22-32.) The Appeals Council denied Plaintiff’s request for
review on October 16, 2012 (Tr. at 1-6), making the ALJ’s decision the final decision of the
Commissioner. Plaintiff subsequently filed an action in this Court on December 7, 2012. (ECF No.
1.)
II. REPORT AND RECOMMENDATION
The Magistrate Judge recommends affirming the ALJ’s decision. (ECF No. 14 at 19-20.)
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 and Recommendation 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 him with instructions. 28 U.S.C. § 636(b)(1). “However, the Court

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is not required to review, under a de novo or any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the report and recommendation to which no objections
are addressed. While the level of scrutiny entailed by the Court’s review of the Report thus depends
on whether or not objections have been filed, in either case the Court is free, after review, to accept,
reject, or modify any of the magistrate judge’s findings or recommendations.” Wallace v. Housing
Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (internal citations omitted).
III. PARTIES’ RESPONSE
Plaintiff filed objections to the Report and Recommendation (“Objections”) on December
16, 2013. (ECF No. 15.) Plaintiff objects to the Magistrate Judge’s recommended findings that 1)
the ALJ properly applied the treating physician rule, and 2) the ALJ properly evaluated Plaintiff’s
credibility. The Commissioner filed a reply to Plaintiff’s objections to the Report and
Recommendation asking this Court to affirm the final administrative decision and addressing points
Plaintiff specifically raised in response to the Magistrate Judge’s Report and Recommendation.
(ECF No. 17.)
IV. DISCUSSION OF THE LAW
A.

STANDARD OF REVIEW

The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Under 42 U.S.C. § 405(g), the court may only review whether the
Commissioner’s decision is supported by substantial evidence and whether the correct law was
applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive . . .”); Myers v. Califano, 611 F.2d
980, 982 (4th Cir. 1980). “Substantial evidence has been defined innumerable times as more than
a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964);

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see, e.g., Daniel v. Gardner, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th
Cir. 1966); Tyler v. Weinberger, 409 F. Supp. 776 (E.D. Va. 1976). In order for a reviewing court
to determine whether the Commissioner based a decision on substantial evidence, “the decision must
include the reasons for the determination . . . .” Green v. Chater, 64 F.3d 657, 1995 WL 478032,
*2 (4th Cir.1995) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.1986)). The statutorily
mandated standard precludes a de novo review of the factual circumstances that substitutes the
Court's findings for those of the Commissioner. See, e.g., Vitek v. Finch, 438 F.2d 1157 (4th Cir.
1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968). Accordingly, “the court [must] uphold the
[Commissioner’s] decision even should the court disagree with such decision as long as it is
supported by ‘substantial evidence.’” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
As noted by Judge Sobeloff in Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969), “[f]rom 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 action.” Id. at 279. “[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.
B.

TREATING PHYSICIAN RULE

Plaintiff challenges the Magistrate Judge’s finding that the ALJ properly weighed the
medical evidence and followed the treating physician rule in rejecting the opinion of Dr. Fatimah
Ndiaye as inconsistent with the medical evidence and Plaintiff’s activities of daily living. (ECF No.
15 at 2.) Plaintiff argues that the ALJ did not cite to any evidence that contradicted the treating
doctor’s opinion which was based on clinical evidence of toe and foot deformity as well as x-rays
showing degenerative joint disease. (ECF No. 15 at 3.) As an alternative argument, Plaintiff argues

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that the ALJ did not properly weigh the opinions of the treating physician. (ECF No. 15 at 4-6.)
The Court has considered Plaintiff’s objections as well as the several reasons set forth by the
ALJ for assigning Dr. Ndiaye’s assessment of Plaintiff’s residual functional capacity “less weight”
(Tr. at 29) and finds Plaintiff’s objection to be without merit. The Magistrate Judge fully addressed
Plaintiff’s contentions of error regarding the weight assigned to the opinion of Dr. Ndiaye and the
analysis conducted by the ALJ as required by 20 C.F.R. § 404.1527. (ECF No. 14 at 17-18.)
Generally, an ALJ will “accord greater weight to the testimony of a treating physician” but the
relevant rule does not require that the testimony always be given controlling weight. Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). The ALJ is to give controlling weight to a treating
physician’s opinion if it is not inconsistent with substantial evidence in the record and is well
supported by clinical and laboratory diagnostic techniques. See 20 C.F.R. §§ 404.1527 (c)(2),
416.927 (c)(2); see also SSR 96-2p, 1996 WL 374188, at *5 (1996) (requiring the ALJ to provide
an explanation of the weight given to the treating source’s medical opinion). By negative
implication, it follows that a treating physician’s opinion can be accorded less weight if it is not
supported by the clinical evidence or if it is inconsistent with other substantial evidence. Mastro v.
Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
As the Magistrate Judge noted, the ALJ explained that the medical evidence did not fully
support some of the functional limitations found by Dr. Ndiaye nor was the assessment fully
consistent with the evidence regarding Plaintiff’s activities of daily living. (Tr. at 29.) If there is
substantial evidence to support the decision of the Commissioner, that decision must be affirmed.
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The Court agrees with the Magistrate
Judge that the ALJ applied the correct legal principles in evaluating the treating physician’s opinion
and sufficiently described his reasons for giving a certain portion of Dr. Ndiaye’s opinion limited

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weight. Here, there is substantial evidence in the entire record that supports the ALJ’s decision
concerning the appropriate weight given to Dr. Ndiaye’s opinion and the Court finds no reversible
error with respect to this issue. (ECF No. 14 at 4-5.)
C.

PLAINTIFF’S CREDIBILITY

Next, Plaintiff challenges the Magistrate Judge’s findings concerning the ALJ’s credibility
determination. (ECF No. 15 at 6.) Plaintiff suggests that the Magistrate Judge selected the findings
from the ALJ’s summary of the evidence that would support a negative credibility determination and
argues that there are insufficient findings to support such a determination. (ECF No. 15 at 6-7.)
This Court disagrees. The ALJ fully and carefully considered the medical evidence as well as
Plaintiff’s statements concerning the intensity, persistence, and limiting effect of the symptoms and
Plaintiff’s testimony about his activities of daily living. (Tr. at 30.) The ALJ concluded that
Plaintiff’s statements were not fully credible to the extent they were inconsistent with the Residual
Functional Capacity (“RFC”) assessment. (Tr. at 30.) Specifically, the ALJ noted in his decision
that Plaintiff helps his children prepare for school and complete their homework, picks out their
clothes, does some sweeping and dusting, and watches television, among other activities. (Tr. at 27,
30.)
Of course, the ALJ is within bounds to disregard Plaintiff’s testimony to the extent it is
inconsistent with the objective medical evidence in the record. See Johnson v. Barnhart, 434 F.3d
650, 658 (4th Cir. 2005); Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986); see also Mickles
v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (noting that the “only fair manner to weigh a subjective
complaint is to examine how pain affects the routine of life”). The ALJ’s responsibility is to “make
credibility determinations— and therefore sometimes must make negative determinations— about
allegations of pain or other nonexertional disabilities.” Hammond v. Heckler, 765 F.2d 424, 426

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(4th Cir. 1985). Declining to substitute its judgment for that of the ALJ in making credibility
determinations, the Court finds substantial evidence in the record supports the ALJ’s credibility
assessment and reasoning. Affirming the ALJ’s credibility determination does not require post-hoc
rationalization on the part of the Court as Plaintiff seemingly suggests.
V.

CONCLUSION
After a thorough review of the record and facts of the instant case, the Court finds no error

and no cause for remand in this matter. Substantial evidence supports the ALJ’s decision. The
Court concurs in the recommendation of the Magistrate Judge and adopts the Report and
Recommendation and incorporates it herein by reference. The decision of the Commissioner is
AFFIRMED.
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
February 25, 2014
Spartanburg, South Carolina

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