Smith v. Commissioner of Social Security Administration

Filing 30

ORDER adopting 24 Report and Recommendation and affirming the Commissioner's decision. Signed by Honorable David C. Norton on 02/21/2014. (gcle, 2/21/14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
WAYNE R. SMITH,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Respondent.

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No. 0:12-cv-02447-DCN

ORDER

This matter is before the court on United States Magistrate Judge Paige J.
Gossett’s report and recommendation (“R&R”) that the court affirm the Acting
Commissioner of Social Security’s decision to deny claimant Wayne R. Smith’s
(“Smith”) application for disability insurance benefits (“DIB”). Smith has filed
objections to the R&R. For the reasons set forth below, the court adopts the R&R and
affirms the Commissioner’s decision.
I. BACKGROUND
Unless otherwise noted, the following background is drawn from the R&R.
A. Procedural History
Smith filed an application for DIB in May 2010, alleging that he had been
disabled since January 13, 2010. The Social Security Administration (“the Agency”)
denied Smith’s application both initially and on reconsideration. Smith requested a
hearing before an administrative law judge (“ALJ”) and ALJ James Scott presided over a
hearing held on October 11, 2011. Tr. 37. At the hearing, Smith amended his alleged
disability onset date to February 23, 2010, the day after the last date that Smith worked.

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Tr. 40. In a decision issued on December 7, 2011, the ALJ determined that Smith was
not disabled. The Appeals Council denied review on June 28, 2012, making the ALJ’s
decision the final decision of the Commissioner.
Smith filed this action for judicial review on August 8, 2012. Compl., ECF No. 1.
On March 18, 2013, he filed a brief requesting that the Commissioner’s decision be
reversed and the case remanded to the Agency for further administrative proceedings.
Claimant’s Br. 1, ECF No. 14. On May 1, 2013, the Commissioner filed a brief
contending that her decision should be upheld. Commissioner’s Br. 1, ECF No. 16. On
December 6, 2013, the magistrate judge issued the instant R&R, recommending that the
Commissioner’s decision be affirmed. R&R 1, ECF No. 24. Smith objected to portions
of the R&R on December 23, 2013. Claimant’s Objections, ECF No. 25. The
Commissioner replied to those objections on January 9, 2014. Commissioner’s Reply,
ECF No. 18. This matter has been fully briefed and is now ripe for the court’s review.
B. Smith’s Medical History
The court dispenses with a lengthy recitation of Smith’s medical history and notes
only a few relevant facts. Smith was forty-four years old on his alleged disability onset
date. Tr. 29. He has at least a high school education and past relevant work experience
as a firefighter. Id. Smith is a former fire captain and battalion chief with the City of
Charleston Fire Department; he lost nine colleagues in the Sofa Super Store fire that
occurred on June 18, 2007. Tr. 25-26. Smith’s mental health problems, specifically,
post-traumatic stress disorder (“PTSD”) and depression, can be traced to the Sofa Super
Store tragedy. Id.

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Psychologist C. Barton Saylor, Ph. D., met with Smith roughly once a month from
October 5, 2010 through at least September 30, 2011. Tr. 269-71, 289-90, 332-36, 33840. On January 26, 2011, Dr. Saylor diagnosed Smith with PTSD and adjustment
disorder with depressed mood. Tr. 290. Dr. Saylor noted that Smith had “obvious” workrelated limitation in function due to his medical condition, and that Smith “is anxious,
lacking confidence and trust-concentration is impaired.” Id.
On September 27, 2011, Dr. Saylor completed a form provided by Smith’s
attorney entitled TREATING PSYCHOLOGIST’S STATEMENT. Tr. 341. In this
form, Dr. Saylor stated that he had reviewed Smith’s mental health records from other
healthcare providers. Id. Dr. Saylor did not respond to the question “Are you the
patient’s treating psychologist?” Id. Dr. Saylor diagnosed Smith with PTSD and major
depressive disorder. Id. He also noted that Smith had no restrictions of activities of daily
living; mild difficulties in maintaining social functioning, concentration, persistence, and
pace; and no episodes of decompensation. Tr. 344. Dr. Saylor responded “No” to the
question “Has the patient been able to sustain the mental demands of full-time work at
any level of skill or psychological stress since January 2010?” Tr. 346. Finally, Dr.
Saylor responded to the question “What is the patient’s prognosis for return to full time
work?”
In my opinion, although the patient cannot realistically be projected to
return to work as a firefighter, his prognosis to return to some form of full
time work is good, and I feel it would serve his psychological health if he
were to return to work.
Id.
On September 30, 2011, Dr. Saylor provided the following opinion regarding
Smith’s mental health and his ability to work.
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[Smith] tends to ruminate and perseverate on the themes of how he is no
longer able to do the work he used to do as a firefighter. It seems very
difficult for Wayne to envision alternatives or options other than
remaining totally disabled.
...
In my last visit with Wayne, I attempted to address with him possible
contingencies for making plans depending on the outcome of the [Social
Security disability] hearing. Wayne seems to have given little thought to
considering alternatives other than being awarded one hundred percent
disability. I noted to him that although this may assist him in the short run
that I do not feel it is a healthy outcome for him in the long run. In my
opinion, Wayne is capable of returning to the work force at some point. I
believe that it would be very difficult for him to ever return to a job in
firefighting or any job that involved emergency service responses.
However, Wayne is a very personable and likeable gentleman and it seems
to me that he could retrain in a different field if he could come to accept
that his firefighting days are over. . . .
. . . I believe that return to the work force should be a gradual process for
Wayne because if he were to attempt to suddenly take on significant new
amounts of stress, I believe that he would be vulnerable to
decompensation. However, in the long run I believe that it is important
for Wayne’s mental health to not have as his only identity a man who no
longer has any positive contribution to make in terms of work. He appears
to be young enough and healthy enough that working in a new field would
not only be reasonable and feasible but desirable.
Summary and Conclusions:
I have discussed these observations with Wayne and, although I believe
that he is uncomfortable about the idea that at some point he may have to
work outside the home in a different career than firefighting, he also
seems to recognize that it is in his interest to not persist permanently in a
sedentary and passive lifestyle. For the sake of his own physical health,
his marriage, and his family it seems to be important that Wayne Smith
accept that he can still make a positive contribution and that he has the
resources to do so.
Tr. 338-40 (emphasis added).
C. ALJ’s Findings
The Social Security Act defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
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expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 20 C.F.R. § 404.1505. The Social Security regulations establish a fivestep sequential evaluation process to determine whether a claimant is disabled. See 20
C.F.R. §§ 404.1520, 416.920. Under this process, the ALJ must determine whether the
claimant: (1) is currently engaged in substantial gainful activity; (2) has a severe
impairment; (3) has an impairment which equals an illness contained in 20 C.F.R. § 404,
Subpt. P, App’x 1, which warrants a finding of disability without considering vocational
factors; (4) if not, whether the claimant has an impairment which prevents him from
performing past relevant work; and (5) if so, whether the claimant is able to perform
other work considering both his remaining physical and mental capacities (defined by his
residual functional capacity) and his vocational capabilities (age, education, and past
work experience) to adjust to a new job. See 20 C.F.R. § 404.1520; Hall v. Harris, 658
F.2d 260, 264-65 (4th Cir. 1981). The claimant bears the burden of proof during the first
four steps of the inquiry, while the burden shifts to the Commissioner for the final step.
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citing Hunter v. Sullivan, 993 F.2d
31, 35 (4th Cir. 1992)).
To determine whether Smith was disabled from February 23, 2010, through the
date of his decision, the ALJ employed the statutorily-required five-step sequential
evaluation process. At step one, the ALJ found that Smith did not engage in substantial
gainful activity during the period at issue. Tr. 23. At step two, the ALJ found that Smith
suffered from the following severe impairments: depression, PTSD, and a back disorder.
Id. At step three, the ALJ found that Smith’s impairments or combination thereof did not
meet or medically equal one of the impairments listed in the Agency’s Listing of

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Impairments. Tr. 24. Before reaching the fourth step, the ALJ determined that Smith
retained the residual functional capacity (“RFC”) to perform sedentary work with a
number of limitations. Tr. 25. Specifically, the ALJ found that Smith could lift and carry
up to ten pounds occasionally and lesser amounts frequently; sit for six hours in an eighthour work day; and stand and walk. Id. The ALJ restricted Smith to performing “simple,
routine tasks that are low stress, not requiring major decision making or changes in
schedule,” in “jobs that do not require contact with the public or more than limited
contact with coworkers.” Id. At step four, the ALJ found that Smith was unable to
perform his past relevant work as a firefighter. Tr. 29. Finally, at the fifth step, the ALJ
found that Smith could perform jobs existing in significant numbers in the national
economy and concluded that he was not disabled during the period at issue. Tr. 29-30.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). This court is not required to review the factual findings and legal conclusions
of the magistrate judge to which the parties have not objected. See id. The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination remains with this court. Mathews v. Weber,
423 U.S. 261, 270-71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of

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evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t is not within the province of a reviewing court to determine the weight of
the evidence, nor is it the court’s function to substitute its judgment for that of the
[Commissioner] if his decision is supported by substantial evidence.” Id.
III. DISCUSSION
Smith makes two objections to the magistrate judge’s R&R. The court considers
these objections in turn.
A. Dr. Saylor’s Opinion
Smith objects that the magistrate judge erred when she found that the ALJ
properly considered Dr. Saylor’s opinion. Smith argues that the magistrate’s judge’s
recommendation “ignores Dr. Saylor’s unequivocal opinion that Smith had been unable
to sustain the demands of full-time work at any level of psychological stress since the
alleged onset date.” Claimant’s Objections 3.
Social Security regulations require the ALJ to consider all of the medical opinions
in a claimant’s case record, as well as the rest of the relevant evidence. 20 C.F.R. §
404.1527(c). Medical opinions are evaluated pursuant to the following non-exclusive
list:
(1) whether the physician has examined the applicant, (2) the treatment
relationship between the physician and the applicant, (3) the supportability
of the physician’s opinion, (4) the consistency of the opinion with the
record, and (5) whether the physician is a specialist.
Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). In general, more weight is given
to the opinion of a “source who has examined [a claimant] than to the opinion of a source
who has not,” 20 C.F.R. § 404.1527(c)(1), but “if a physician’s opinion is not supported
by clinical evidence or if it is inconsistent with other substantial evidence, it should be
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accorded significantly less weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996).
The ALJ must also give specific reasons for the weight given to a treating physician's
medical opinion. See SSR 96-2p, 1996 WL 374188 (July 2, 1996).
Dr. Saylor’s opinion is not as one-sided as Smith suggests. Instead, the doctor’s
treatment notes and more formal written opinions present a nuanced picture of Smith as a
man who faces significant mental health challenges but who can ultimately be expected
to return to the work force in a capacity different from his previous role as a firefighter.
The ALJ extensively discussed Dr. Saylor’s treatment notes and opinions, giving Dr.
Saylor’s opinion “great weight” because it was consistent with the other evidence in the
record. Tr. 27-29. Because Dr. Saylor suggested that Smith’s return to the work force
should be gradual, the ALJ “limited the claimant to performing simple, routine tasks that
are low stress, not requiring major decision making or changes in schedule.” Tr. 29. The
ALJ also limited Smith “to performing jobs not requiring contact with the public or more
than limited contact with coworkers in consideration of moderate limitations in social
functioning and concentration, persistence, and pace.” Id.
It was not error for the ALJ to assign great weight to Dr. Saylor’s opinion and to
characterize that opinion as supporting a finding that Smith was not disabled. Indeed, the
ALJ’s RFC assessment reflects a number of appropriate limitations that are in keeping
with Dr. Saylor’s findings as well as the findings of other treating physicians.1 In short,

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For example, Katherine Smith, D.O. (no relation to the claimant), provided Smith with mental
health treatment on several occasions in 2010. Dr. Smith noted on July 15, 2010 that Smith had
“serious” work-related limitations in function if he were to continue work within the fire
department, but that he had no work-related limitations in function if he were to work “outside
Fire Dept.” Tr. 234. Dr. Smith also wrote that Smith
reported that he thinks that he can’t work another job b/c he has no training or
skills in another area. He did not say this was due to mental health issues. I
cannot say that Pt cannot work at another job outside of Fire dept as I have no

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the ALJ’s evaluation of Dr. Saylor’s opinion was supported by substantial evidence, even
though Dr. Saylor’s records contain some indication that Smith’s return to full-time work
might be a challenging transition.
As the ALJ’s assessment of Dr. Saylor’s opinion was supported by substantial
evidence, Smith’s first objection fails.
B. Closed Period of Benefits
Smith next contends that the magistrate judge’s R&R “ignores the fact that the
ALJ could have awarded continuing disability with the recommendation that Smith’s
claim be reevaluated under continuing disability review . . . .” Id. at 4. This appears to
be an argument that the magistrate judge erred because the ALJ could have awarded
Smith a short period of benefits rather than outright denying his claim. The
Commissioner responds that this argument is waived because Smith first raised it in his
objections to the R&R.
The Commissioner supports her waiver argument with citation to two cases that
are not particularly on point. In SunBridge Care & Rehab. for Pembroke v. Leavitt, 340
F. App’x 929, 932 n.5 (4th Cir. 2009) and Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995),
the Fourth Circuit explained that it would not consider an argument first advanced in an
appellate reply that could have been raised in an initial appellate brief. The Hunt court
explained that “appellate courts generally will not address new arguments raised in a
reply brief because it would be unfair to the appellee and would risk an improvident or
ill-advised opinion on the legal issues raised.” 57 F.3d at 1338; see also SunBridge, 340

evidence of this type of disability or failure to do another type of job . . . . I am
unable to comment & support such a claim.
Tr. 331.

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F. App’x at 932 n.5 (“The argument was readily available at the time of briefing, yet
SunBridge mentioned it only in the reply brief. . . . [T]he Government would be
prejudiced by the consideration of this issue because it lacked an adequate opportunity to
respond.” (internal citations omitted)). The case at hand deals with an argument raised in
objections to an R&R, not one raised in an appellate reply brief. Moreover, the
Commissioner has had ample opportunity – in her reply – to respond to the arguments
that Smith now advances. While the magistrate judge certainly did not err by failing to
discuss an issue that had not been raised by the parties, it is neither unfair to the
Commissioner nor otherwise risky for the court to consider this argument. As a result,
the court will consider the substance of Smith’s second objection.
Smith correctly states that the Agency can choose to award a claimant benefits
subject to continuing disability review. 20 C.F.R. §§ 404.1589, 404.1590. In this case,
the ALJ did not go that route; instead, he decided to deny Smith benefits all together. It
is the magistrate judge’s duty – as well as this court’s – to decide whether the ALJ’s
decision was supported by substantial evidence. Neither the magistrate judge nor this
court is empowered to engage in a counter-factual analysis of whether alternative
decisions that the ALJ did not make would have been supported by substantial evidence.
Hays, 907 F.2d at 1456 (“[N]or is it the court's function to substitute its judgment for that
of the Secretary . . . .”).
As explained above, the ALJ’s decision to deny Smith benefits was supported by
substantial evidence. As a result, Smith’s second objection fails.

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IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s report
& recommendation, ECF No. 24, and AFFIRMS the Commissioner’s decision.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 21, 2014
Charleston, South Carolina

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