Burgess v. Commissioner of Social Security Administration

Filing 23

ORDER adopting 16 Report and Recommendation. Signed by Honorable Patrick Michael Duffy on March 13, 2018.(jmcg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
James B. Burgess,
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of the Social Security
Administration,
Defendant.

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C.A. No.: 9:16-cv-3037-PMD-BM
ORDER

This matter is before the Court on Plaintiff James Burgess’ objections to United States
Magistrate Judge Bristow Marchant’s report and recommendation (“R & R”) (ECF Nos. 20 & 16).
The Magistrate Judge recommends that the Commissioner’s decision be affirmed. For the reasons
stated herein, the Court overrules Burgess’ objections and adopts the R & R.
PROCEDURAL HISTORY
The Magistrate Judge issued his R & R on November 6, 2017. After an extension of time,
Burgess filed his objections to the R & R on December 4, and the Commissioner replied on
December 18. Accordingly, this matter is now ripe for review.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the Magistrate Judge’s recommendations and proposed findings within fourteen days after being
served with a copy of the R & R. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific objection is made, and the Court may

accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or in part.
Id. Additionally, the Court may recommit the matter to the Magistrate Judge with instructions.
Id. A party’s failure to object is taken as the party’s agreement with the Magistrate Judge’s
conclusions. See Thomas v. Arn, 474 U.S. 140, 151–52 (1985). Absent a timely, specific
objection—or as to those portions of the R & R to which no specific objection is made—this Court
“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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
Burgess raises three objections to the R & R. First, he argues that the administrative law
judge (“ALJ”) failed to fully develop the record by refusing to obtain an IQ test or a psychological
consultative evaluation. Second, he contends that the Magistrate Judge erred by accepting the
ALJ’s rejection of Burgess’ treating physician’s opinions.

Finally, Burgess objects to the

Magistrate Judge’s findings as to the residual functional capacity the ALJ assigned him. The Court
addresses each objection in turn.
Burgess first argues that the ALJ’s failure to obtain an IQ test precluded him from making
an argument that he met the elements of Listing 12.05C. He maintains that he would likely have
satisfied those elements. In response, the Commissioner points out that this is the first time
Burgess has raised the issue that Burgess meets the elements of Listing 12.05C and argues that the
Court should not examine that issue de novo because Plaintiff waived it by not arguing it before
the Magistrate Judge. Specifically, the Commissioner cites to Samples v. Ballard, 860 F.3d 266
(4th Cir. 2017), and contends that Burgess’ listing argument is a new issue rather than a new
argument. Samples applied the framework set out in United States v. George, which “envisions a

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hierarchical scheme, wherein a legal case is divided into issues, and issues are further subdivided
into arguments.” 860 F.3d at 272. The distinction is significant because, as explained in Samples,
the Court is not required to review a new issue that was not presented to the Magistrate Judge de
novo, but it is required to conduct a de novo review of a new argument that was not presented to
the Magistrate Judge. Id. at 273–74. Here, the Court agrees with the Commissioner’s view of
Burgess’ objection.
In Burgess’ initial brief before the Magistrate Judge, he argues that his request for an IQ
test was relevant and that the ALJ should have granted that request because it would have resulted
in a finding that he was disabled under the Medical-Vocational Guidelines. 1 As the Commissioner
notes, that disability determination would arise at step five of the evaluation process, and
incorporates several of the ALJ’s other findings in order to conclude whether a plaintiff is disabled
or not. In contrast, whether Burgess meets a listing would have been evaluated at step three of the
process, rather than step five. In the event that Burgess met a listing, he would have been
considered disabled without ever reaching step five. The Court concludes that Burgess’ listing
objection, presented for the first time to the Court, is not simply a new argument under the
hierarchical issue that the ALJ failed to properly develop the record. Such an interpretation would
permit an open-ended “failure to develop the record” objection to retroactively shoehorn a
plaintiff’s arguments relating to one sequential step into that plaintiff’s arguments relating to an
entirely different sequential step. As discussed above, had Burgess successfully argued that he
met the elements of Listing 12.05C, he would never have reached step five of the evaluation
process. The Court concludes that because plaintiff’s listing objection pertains to an entirely
separate step of the evaluation process, the listing objection is itself a new issue under Samples.

1. This argument assumes that the ALJ’s determination that Burgess could perform light work was also incorrect
and that Burgess was in fact limited to sedentary work.

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Accordingly, the Court need not conduct a de novo review and instead reviews the R & R for clear
error. Finding none, the Court overrules Plaintiff’s first objection.
Second, the Court turns to Burgess’ objection pertaining to the ALJ’s treatment of his
treating physician’s opinions. Burgess was treated by Dr. Kelly, who opined at one time that
Burgess could walk for 10-15 minutes, or about 5-6 blocks, without a cane. Dr. Kelly later opined
that Burgess was limited to standing and walking less than two hours a day, and that all of Burgess’
limitations were disabling. Burgess contends that the ALJ erred in giving greater weight to his
orthopedic surgeon’s opinion, Dr. O’Dell, than to Dr. Kelly’s opinion. Dr. O’Dell opined that
Burgess could return to sedentary, light duty work in December 2012. The Magistrate Judge notes
that Dr. Kelly’s opinion as to the degree of Burgess’ limitation did not match the medical findings
in the record or the nature of the conservative treatment administered. Burgess contends that the
Magistrate Judge’s determination based on the conservative nature of treatment was also error
because “the characterization of treatment as conservative ‘alone does not provide any insight into
the severity of a given condition.’” Wilson v. Colvin, No. 8:15-cv-4185-MGL-JDA, 2016 WL
6471904, at *15 (D.S.C. Oct. 19, 2016) (quoting Viverette v. Astrue, No. 5:07-cv-395-FL, 2008
WL 5087419, at *2 (E.D.N.C. Nov. 24, 2008)). Here, however, the Magistrate Judge’s conclusion
is not solely based on the nature of the treatment but is also based on Dr. O’Dell’s opinion. As a
result, Wilson is inapposite. In that case, the plaintiff was treated conservatively, but was also
taking a number of medications and those medications had to be changed a number of times
because they were ineffective. Id. Additionally, there was no substantial contradictory evidence
in Wilson. Id. That is not the case here, as Dr. O’Dell’s opinions are consistent with the
conservative nature of Burgess’ treatment. Accordingly, the Court concludes that the ALJ’s
decision is supported by substantial evidence.

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Finally, Burgess objects to the ALJ’s conclusion that he could perform light work when
the ALJ determined his residual functional capacity (“RFC”). Specifically, Burgess contends that
he is not capable of “standing or walking, off and on, for a total of approximately 6 hours of an 8hour workday” as contemplated by the grids’ description of light work. See 20 C.F.R. § 404.1567.
However, the ALJ’s RFC actually specifies that Burgess can only perform a limited range of light
work because he can only stand or walk, off and on, for approximately 4 hours of an 8-hour
workday. Where, as here, a claimant’s capabilities fall between the ranges of work, the ALJ will
consider the extent of the erosion of the occupational base and assess its significance. See SSR
83-12, 1983 WL 31253 (Jan. 1, 1983). Where the extent of that erosion is unclear, the adjudicator
will need to consult with a vocational resource, such as a vocational expert, as the ALJ did here.
See id. In spite of Burgess’ limitations, the vocational expert still testified that there were several
jobs existing in sufficient numbers in the national economy that he could perform given the limited
range of light work the ALJ concluded he could perform. This is true whether he is capable of the
full range of light work or the limited range of light work given to the vocational expert as a
hypothetical. Accordingly, the Court concludes that the ALJ’s decision with respect to Burgess’
residual functional capacity is correct and therefore rejects Burgess’ argument that the ALJ
incorrectly assigned him a light work RFC.

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CONCLUSION
For the reasons stated herein, it is ORDERED that Burgess’ objections are
OVERRULED, that the R & R is ADOPTED, and that the Commissioner’s decision is
AFFIRMED.
AND IT IS SO ORDERED.

March 13, 2018
Charleston, South Carolina

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