Glockner v. Commissioner of Social Security Administration

Filing 25

ORDER RULING ON REPORT AND RECOMMENDATION for 21 Report and Recommendation, the court declines to adopt the analysis portion of the Report and affirms the Commissioner's decision. Signed by Honorable Cameron McGowan Currie on 9/17/2012. (ydav, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Joanne Helen Glockner,

)
)
Plaintiff,
)
)
v.
)
)
Michael J. Astrue,
)
Commissioner of Social Security Administration, )
)
Defendant.
)
__________________________________________)

C/A No. 0:11-955-CMC-PJG

ORDER

Through this action, Plaintiff seeks judicial review of the final decision of the Commissioner
of Social Security denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”). 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 Paige J. Gossett, 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. and
filed on August 6, 2012. Dkt. No. 21. For the reasons set forth below, the court declines to adopt
the analysis portion of the Report1 and affirms the Commissioner’s decision.
STANDARD
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,

1

The court adopts the portions of the Report labeled “Administrative Proceedings,” “Social
Security Disability Generally,” “Standard of Review,” and “Issues.” The court also adopts the
“Discussion” section through the last full paragraph on page 7.
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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 . . . .” 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. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). The court must uphold the
Commissioner’s decision as long as it is supported by substantial evidence. 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. The statutorily granted right of review
contemplates more than an uncritical rubber stamping of the administrative 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.

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BACKGROUND
In August 2006, Plaintiff applied for DIB, alleging disability beginning January 2, 2004 due
to brain, leg, and knee injuries, memory loss, post-traumatic stress disorder, and depression
following an accident in which a motor vehicle struck her while she was a pedestrian.2 Plaintiff’s
application was denied initially and on reconsideration by the Social Security Administration.
Plaintiff requested a hearing, which was held by an administrative law judge (“ALJ”) on January
13, 2009. The ALJ, in a decision issued March 19, 2009, found that Plaintiff was not disabled. The
Appeals Council denied Plaintiff’s request for review on February 23, 2011, making the ALJ’s
decision the final decision of the Commissioner.
On April 20, 2011, Plaintiff filed this action seeking review of the Commissioner’s decision
arguing that it is not supported by substantial evidence. Dkt. No. 1. Plaintiff argues that the ALJ
(1) failed to evaluate the combined effect of Plaintiff’s multiple impairments; (2) performed a flawed
credibility analysis; and (3) failed to perform a full residual functional capacity (“RFC”) analysis.
Dkt. No. 16.
DISCUSSION
The Report recommends that the court reverse the Commissioner’s decision and remand this
matter because it is not supported by substantial evidence. Report at 11. Specifically, the Report
concludes that the ALJ’s credibility determination of Plaintiff is not supported by substantial
evidence.3 Id. at 10. In objections filed on August 22, 2012, the Commissioner argues that the

2

The accident occurred on January 2, 2004.

3

The Report does not address the issues of whether the ALJ failed to evaluate the combined
effect of Plaintiff’s multiple impairments and whether the ALJ failed to perform a full RFC analysis.
The Report finds that these issues may become moot on remand based on the Report’s conclusion
3

Magistrate Judge erred in recommending that the court reverse the Commissioner’s decision and
remand the matter based on the ALJ’s credibility determination. Dkt. No. 24. Plaintiff did not file
a response to the Commissioner’s objections.
Credibility Determination. During her administrative hearing, Plaintiff testified that she
was unable to work since the accident due to pain in her legs. Tr. 28. She stated that she takes high
dosages of pain medication each day (Tr. 33-34), elevates her legs a couple of times per day for half
an hour to an hour to reduce swelling (Tr. 30), and is expected to get arthritis in her knees. Id.
Plaintiff also testified that she is able to perform limited housework (20 minutes of vacuuming) but
that she needs to take breaks (1 ½ - 2 hours). Tr. 34. She explained that she works occasionally (3-4
times per month) for her brother’s gift basket business. Tr. 38. She also testified that she attends
church but that her husband does most of the grocery shopping and cooking. Tr. 39-40. She stated
that she has short-term memory and focus problems. Tr. 28-29, 31-32.
The ALJ found that although she had medically determinable impairments that could
reasonably be expected to cause some of the alleged symptoms, Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of these symptoms were not entirely credible. Tr. 20.
The ALJ found that Plaintiff had the RFC to perform medium unskilled work. Tr. 19. In
discounting Plaintiff’s reports of pain, the ALJ stated:
As to her complaints of leg pain, the record establishes that the claimant experienced
improvement following her surgery noting that her tibia/fibula fracture was described
as completely healed in June 2006 and she reported that she was doing well overall
(despite complaints of bilateral knee pain) and she was advised to advance activities
as tolerated. (Exhibit 7F) Also, Dr. Waid indicated in October 2006, that the
claimant ambulated without difficulty or complaints. (Exhibit 8F) Furthermore, the
claimant was consistently described as not in any apparent distress throughout the

that the credibility determination was flawed.
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medical evidence of record. (Exhibits 3F, 6F, 13F and 19F) . . . Also, the claimant
maintains the ability to perform activities of daily living given her testimony that she
continued to perform light household chores (although at a slower pace) and attend
church. Furthermore, she reported in February 2007, that she was performing some
volunteer work. (Exhibit 14F) Additionally, a May 2008 progress noted from
Coastal Psychiatry indicates that the claimant complained of “jet lag” which suggests
that she remained capable of travel. (Exhibit 20F, page 8) Moreover, the claimant
has continued to work beyond her alleged onset date and while the work, according
to her description, is not physically tasking, it does indicate that she remains capable
of cooperative interaction with her brother as well as other employees; of the
performance of simple, routine tasks; and of maintaining some semblance of a work
schedule.
Tr. 20-21.
Plaintiff argues that the ALJ’s credibility determination was flawed because the ALJ
“advanced no legally sound rationale for” discounting Plaintiff’s credibility. Dkt. No. 16 at 9.
Plaintiff contends that the ALJ’s reasons for discounting her alleged symptoms are unclear.
Specifically, Plaintiff argues that her leg and knee pain is supported by the medical records and an
improvement noted in a doctor’s note in June 2006 does not render her leg and knee pain obsolete.
Further, Plaintiff contends that the ALJ ignored the side effects of her medications and that she
underwent physical therapy. Finally, Plaintiff contends that the ALJ mentioned “a medical notation
of non-compliance with medication,” but that the “non-compliance” is explained by Plaintiff’s
experience with severe side effects. Id. at 12.
The Commissioner argues that “[a]lthough the ALJ admittedly did not specifically cite to all
of the examples of the evidence of record to support his adverse credibility finding which were cited
in Defendant’s Brief (Defendant’s Brief at 9), he did specify that he had carefully considered the
‘entire record’ (Tr. 19), which indicates he had reviewed all of the evidence of record, including the
uncited evidence which supported the adverse credibility determination.” Dkt. No. 23 at 1-2. The
Commissioner then cites evidence in the ALJ’s opinion which supports the ALJ’s finding that
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Plaintiff’s testimony was not credible: “Plaintiff continued to work well after her alleged onset of
disability date (Tr. 18, 20-21); her ability to travel on vacation (Tr. 20); her ability to engage in
volunteer work, which indicated she had the ability to interact appropriately with others (Tr. 18, 20);
and the fact that she was routinely found to be in no acute distress during examinations (Tr. 20).”
Dkt. No. 24 at 2.
The court finds that the ALJ’s credibility determination is supported by substantial evidence.
The ALJ recognized that Plaintiff was involved in a motor vehicle-pedestrian accident in 2004 that
injured her legs and required surgery, and in April 2006, Plaintiff underwent a procedure to remove
painful hardware from her right tibia. The ALJ recognized that Plaintiff continually complained of
bilateral knee pain throughout the relevant period and that Plaintiff used pain medication as a result.
However, the ALJ found that Plaintiff’s activities of daily living were inconsistent with her
testimony as to the limiting effects of her pain. The ALJ cited Plaintiff’s occasional work assisting
her brother with his gift basket business, her report to a health care provider in February 2007 that
she was volunteering, and her report of “jet leg” in May 2008, indicating that Plaintiff was capable
of travel.4 The ALJ also cited to Plaintiff’s testimony that she was capable of performing light
household chores and that she attended church. The court finds that substantial evidence supports
the ALJ’s credibility determination that Plaintiff’s testimony as to the intensity, persistence, and
limiting effects of her symptoms did not support the conclusion that she was prevented from
performing medium work during the relevant period.5 The ALJ considered Plaintiff’s mental

4

The record also includes a physician’s notation that Plaintiff will be seen “when she returns
from her trip to Alaska” in April 2004, just 4 months after her accident. Tr. 253.
5

Plaintiff has not directed the court to Plaintiff’s side effects from her medications. The
court notes that during the hearing, Plaintiff testified that she takes Ultram Extended Release (300
6

impairments and limited her to unskilled work, and there is substantial evidence that she is capable
of performing unskilled work.6 The court, therefore, concludes that the ALJ did not err with respect
to the credibility determination because it is supported by substantial evidence.
Combination of Impairments. Plaintiff also argues that the ALJ failed to consider the
combination of her impairments in determining whether she was disabled. Plaintiff does not identify
an impairment that the ALJ ignored, but rather argues that the ALJ failed to consider the combined
effects of all of Plaintiff’s impairments, including that fact that Plaintiff’s mental impairments are
severely aggravated by her physical impairments. Dkt. No. 9 (citing Walker v. Bowen, 889 F.2d 47,
50 (4th Cir. 1989)). In Walker v. Bowen, the Fourth Circuit explained:
mg) for pain. When asked whether she has any side effects from that pain medication, Plaintiff
testified, “No, thank goodness, because Ultram Extended Release works better for me and a little
bit of food in my stomach, you know, before I go to bed at night.” Tr. 33-34. Also, Plaintiff
contends that the ALJ erred in relying on the Plaintiff’s “non-compliance” with certain mental health
treatment, specifically “an unwillingness to take her medications,” because Plaintiff experienced
severe side effects from the medications. The court finds that any error with respect to this finding
is harmless because substantial evidence, as cited by the ALJ, supports that Plaintiff’s mental health
was improving and did not render her disabled.
6

As stated in the ALJ’s decision:
The undersigned also provided compensation for the claimant’s mental
impairment(s) by limiting her to unskilled work. Such compensation is adequate
noting that, as previously mentioned, the claimant was able to correctly identify the
current president and properly estimate the outside temperature when evaluated in
July 2004. She was also able to recall two of three objects after five minutes.
(Exhibit 4F, pages 3-4) Moreover, the claimant had demonstrated the ability to
perform all of the mental activities generally required by competitive, remunerative,
unskilled work. For example, the claimant had the ability to understand, remember,
and carry out simple instructions and to make simple work-related decisions, as
demonstrated by her ability to work at her brother’s business, to travel, and maintain
her personal hygiene, as well as her competent demeanor at the hearing. In addition,
the claimant’s treatment records fail to demonstrate that her ability to respond
appropriately to supervision, co-workers and usual work situations or to deal with
changes in a routine work setting have been compromised by her impairments. As
a result, the claimant’s ability to perform unskilled mental activities remains intact.
Tr. 21-22.
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[A] failure to establish disability under the listings by reference to a single, separate
impairment does not prevent a disability award. It is axiomatic that disability may
result from a number of impairments which, taken separately, might not be disabling,
but whose total effect, taken together, is to render claimant unable to engage in
substantial gainful activity. In recognizing this principle, this Court has on numerous
occasions held that in evaluating the effect[ ] of various impairments upon a
disability benefit claimant, the Secretary must consider the combined effect of a
claimant’s impairments and not fragmentize them . . . . As a corollary to this rule,
the ALJ must adequately explain his or her evaluation of the combined effects of the
impairments.
889 F.2d at 50.
At step three of the sequential analysis, the ALJ found that Plaintiff “did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525, 404.1526).” Tr. 18.
The ALJ considered Plaintiff’s “leg/knee problems” as well as her mental impairments. Id. Further,
the ALJ considered the effects of Plaintiff’s symptoms, including her alleged cognitive difficulties
(focus and short-term memory problems), in determining Plaintiff’s RFC. Tr. 20-22. The court
finds that the ALJ sufficiently discussed Plaintiff’s alleged impairments and limitations to
demonstrate that he considered Plaintiff’s impairments in combination. Further, the court observes
that Plaintiff has neither cited an impairment ignored by the ALJ nor offered any explanation as to
how more discussion or explanation may have changed the outcome in this case.7 The court,
therefore, concludes that the ALJ considered the combination of Plaintiff’s impairments and that his
conclusion that the combined effect of Plaintiff’s impairments is not disabling is supported by
substantial evidence.
RFC Analysis. Finally, Plaintiff argues that the ALJ failed to perform a proper RFC
analysis. Plaintiff does not identify any specific error as to the ALJ’s RFC analysis, but rather

7

It is Plaintiff’s burden to present evidence that her condition meets or equals a listed
impairment. Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986).
8

expresses a disagreement with the finding that Plaintiff can perform medium work.8 There is no
evidence in the record of limitations placed on Plaintiff by her treating physicians. Neither has
Plaintiff identified any evidence that contradicts the ALJ’s RFC analysis. It appears that Plaintiff
is arguing that Plaintiff’s age precludes her from performing medium work. Dkt. No. 19 at 4. The
ALJ explained in his decision why Plaintiff’s knee and leg problems did not preclude her from
performing medium work, including citation to two state agency opinions that Plaintiff was capable
of medium work (Tr. 20); the lack of limitations placed on Plaintiff by her physicians9 (Tr. 21);
Plaintiff’s ability to travel (Tr. 20); Plaintiff’s lack of cyanosis, clubbing or edema in March 2004
(Tr. 21); Plaintiff’s appearance of moving easily without edema to her legs in October 2004 (Tr. 21);
and an observation in October 2006 that she was ambulating without difficulty (Tr. 21). The court
finds that the ALJ properly analyzed Plaintiff’s RFC, which is supported by substantial evidence.
The court, therefore, affirms the Commissioner’s decision because it is supported by
substantial evidence.
CONCLUSION
For the reasons stated above, the court declines to adopt the analysis portion of the Report
and affirms the Commissioner’s decision.
IT IS SO ORDERED.
S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE

8

The court notes that Plaintiff does not offer any opinion evidence as to her work limitations
or abilities. The record contains two opinions by state agency physicians, which both conclude that
Plaintiff is capable of medium work.
9

The ALJ did note that the record contains an April 26, 2006 progress note stating that
Plaintiff should remain non-weight bearing for six weeks following removal of painful hardware,
which was implanted after her accident. Tr. 21. The ALJ did not find, and the court is unaware of,
any further limitations in the record.
9

UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
September 17, 2012

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