Wood v. Schweiker, Civ. A. No. 77-94-8.

• Decision Date: 12 April 1982
• Docket Number: Civ. A. No. 77-94-8.
• Citation: 537 F. Supp. 660
• Court: U.S. District Court — District of South Carolina
• Parties: Agnes F. WOOD, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

537 F. Supp. 660

Agnes F. WOOD, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

Civ. A. No. 77-94-8.

United States District Court, D. South Carolina, Aiken Division.

April 12, 1982.

Mary J. Wiesen-Kosinski, Aiken, S. C., for plaintiff.

Henry Dargan McMaster, U. S. Atty., Columbia, S. C., for defendant.

ORDER

BLATT, District Judge.

This matter is before the court, pursuant to 42 U.S.C. § 405(g), for review of a final decision of the Secretary of Health and Human Services. The record includes a report and recommendation of the United States Magistrate made in accordance with the local rule of this District concerning reference of social security cases under 28 U.S.C. § 636(b)(1)(B). In the Matter of: Social Security Cases, No. M 81-31 (D.S.C. March 30, 1981) (local rule); see, e.g., Weber v. Secretary of Health, Education and Welfare, 503 F.2d 1049 (9th Cir. 1974), aff'd sub nom., Mathew v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Under 28 U.S.C. § 636,

a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

28 U.S.C. § 636(b). E.g., Orand v. United States, 602 F.2d 207 (9th Cir. 1979). Absent timely objection from a dissatisfied party, however, the scope of this court's review of the magistrate's record is more limited. Park Motor Mart, Inc. v. Ford Motor Co., No. 79-1514 (1st Cir. March 11, 1980). See 28 U.S.C. § 636(b)(1)(B). Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). Cf. United States v. Walters, 638 F.2d 947 (6th Cir. 1981) (failure to object to magistrate's report constitutes a waiver of the right to appeal from district court's order adopting that report). Nonetheless, while the level of scrutiny entailed by the district court's review of the report and recommendation of the magistrate depends on whether objections thereto have been filed, e.g., Webb v. Califano, 468 F.Supp. 825 (E.D.Cal. 1979), in either case "the district judge is free, after review, to accept, reject or modify any of the magistrate's findings or recommendations." United States ex rel. Henderson v. Brierley, 468 F.2d 1193 (3d Cir. 1972). See Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). "The district judge is free to follow the magistrate's report or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority — and the responsibility — to make an informed, final determination ... remains with the judge." Mathew v. Weber, 423 U.S. 261, 271, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976). In the present case, plaintiff has excepted to certain portions of the magistrate's report.¹

On January 2, 1976, plaintiff filed an application for disability insurance benefits, which was denied by the Social Security Administration both initially and upon reconsideration. A hearing, requested by plaintiff under 42 U.S.C. § 405(b), was conducted on March 30, 1976, and resulted in an adverse determination by the administrative law judge on October 22, 1976. That determination became the final decision of the Secretary of Health and Human Services when it was approved by the Appeals Council on November 24, 1976. Plaintiff sought judicial review of this decision pursuant to 42 U.S.C. § 405(g), and this court remanded the case to the Secretary "for further administrative action." Wood v. Califano, No. 77-94 at 1 (D.S.C. July 14, 1978) (Chapman, J.). In that order, the court held that there was "not substantial evidence to support the Secretary's final decision denying plaintiff's claim for an establishment of a period of disability ... and good cause ... was shown to remand this matter to the Secretary ...."² Id. Subsequent to remand, a supplemental hearing was conducted on February 16, 1979, which resulted in the administrative law judge holding that plaintiff was "entitled to a period of disability commencing on May 13, 1973, and to disability insurance benefits under ... the Social Security Act ...." Transcript at 156. However, on February 26, 1980, the Appeals Council reversed the administrative law judge, finding that "the claimant was not precluded from engaging in her previous sedentary work as a sewing machine operator for any continuous twelve-month period commencing on or before June 30, 1973." Id. at 139. It is from this decision that plaintiff now seeks relief under 42 U.S.C. § 405(g).

After careful review of the record, this court finds the magistrate's report to be an accurate summary of the facts in the instant case, and that report is incorporated into this order by specific reference thereto.³ Plaintiff was born on December 14, 1921, and was fifty-seven (57) years of age at the time of the supplemental hearing. Transcript at 180. Plaintiff discontinued her formal education after completing the fourth grade, id. at 180-81, and, by her own admission, she can "barely" read and can write "a little bit." Id. at 181. Plaintiff's employment history consists, most recently, of work in a garment factory as a sewing machine operator, which ended in 1968. Id. at 182-83. Prior to that employment, plaintiff worked in restaurants as a waitress, id. at 185-86, in a textile mill as a battery hand, id. at 186-88, and in a dry cleaning establishment as a checker, id. at 183-84. Subsequent to her back problems in 1968, plaintiff worked intermittently, generally on a part-time basis, as a dry cleaning checker and a sewing machine operator. Id. at 184-85, 188-89. Plaintiff asserts that she has been unable to work since December 17, 1969, id. at 154, as a result of mental and physical problems related to a recurrent herniated lumbar disc that was treated surgically in 1964 and 1973. Id. at 192-94. See generally id. at 189-206, 209-18, 222-26. Plaintiff also presented the testimony of Dr. Mercer B. Sell, her husband, George Wood, her granddaughter, Teresa Danner, and two friends, Lois Lott and Thelma Wood, who affirmed previous affidavits. The testimony of a vocational expert was also heard.

The medical evidence advanced at the supplemental hearing consisted of a report of Dr. Mercer B. Sell, id. at 290-92, as well as his testimony, id. at 59-85; a psychological report by Dr. Charles W. Jackson, Ph.D. id. at 294-96; a report by Dr. Robert O. Lipe, id. at 297; various records from University Hospital in Augusta, Georgia, concerning hospitalization from February 7 to February 10, 1964, id. at 299-303, from April 18 to April 21, 1964, id. at 304-08, from September 8 to September 15, 1971, id. at 313-19, and from May 13 to May 27, 1973, id. at 320-22; various records from Aiken County Hospital concerning hospitalizations from October 7 to October 10, 1968, id. at 309-12, and from July 24 to July 28, 1975, id. at 344-46; a psychological examination report from Dr. Kermit W. Oberlin, Ph.D., id. at 330-33; and a consultive psychiatric examination report from Dr. Benjamin F. Moss, id. at 334-40. Moreover, lay testimony was elicited from plaintiff, her husband, her granddaughter and, via affidavits, from Mrs. Lott and Mrs. Wood. Although there are conflicts in the record, the evidence establishes that plaintiff suffers some impairment from her various medical problems. Dr. Sell stated that plaintiff "has experienced a very long, chronic anxiety and depressive state, particularly since she had to give up her work in the latter part of 1968 or early 1969 ... following her disc surgery ...." Id. at 292. Accord: id. at 296 (Report of Dr. Jackson, Ph.D., finding that plaintiff "is suffering from a moderate amount of depression and anxiety ... which has existed for quite some time"); id. at 332 (Report of Dr. Oberlin, Ph.D., finding "signs of anxiety and ... evidence of lowered motivation ...," which indicates "a personality disorder of a non-psychotic nature"); id. at 339 (Residual Functional Capacity Questionnaire from Dr. Moss indicating a mild restriction of plaintiff's activities from her psychiatric impairment). The various records from Dr. Kenneth W. Carrington, who treated plaintiff's orthopedic problems, clearly establish a long-standing lower back problem attributable to a recurrent herniated lumbar disc that was treated surgically with a laminectomy in 1964 and again with a laminectomy and fusion in 1973. See id. at 299-303, 304-08, 309-12, 320-22. A hospitalization in 1971 for low back pain revealed lumbar osteoarthritis and a mild reverse spondylolisthesis at L4-5. Id. at 313-19. The records of plaintiff's most recent hospitalization also indicate that she currently suffers from essential hypertension and probably coronary artery disease. Id. at 344-46.

After reviewing the record and the testimony elicited at the first hearing, the administrative law judge made the following findings, which were subsequently approved by the Appeals Council.

1. The claimant is a lady who is 55 years of age. She has a fourth grade education and experience as a sewing machine operator.

2. The claimant's primary impairment, which has been shown to exist prior to the expiration of her insurance coverage, is a back condition requiring a laminectomy.

3. The medical evidence is insufficient to support the claimant's position that she has suffered an impairment shown to have lasted for 12 continuous months, which condition began before the expiration of her Social Security Insurance coverage on June 30, 1973.

4. The evidence is insufficient to establish that the claimant was unable to return to her previous work activity within a period which was less than 12 months duration due to her impairment.

5. The preponderance of the evidence indicates the claimant retains the functional capacity to return to her previous

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