Oman v. Commissioner of Social Security Administration
Filing
36
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 27 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Margaret B. Seymour on 08/22/2016. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Susan J. Oman,
Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.
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C/A No. 0:15-2052-MBS-PJG
OPINION AND ORDER
This is an action brought pursuant to Section 205(g) of the Social Security Act (the “Act”),
codified as amended at 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”).
I.
PROCEDURAL HISTORY
Plaintiff Susan J. Oman protectively filed an application for Disability Insurance Benefits
(“DIB”) on May 1, 2012, alleging disability since January 23, 2012. Tr. 12. Her application was
denied initially and on reconsideration. Plaintiff requested a hearing before an administrative law
judge (“ALJ”). The ALJ held a hearing on November 13, 2013. Tr. 26. The ALJ issued a decision
dated January 2, 2014, in which he concluded that Plaintiff was not “disabled” as defined in the
Social Security Act. Tr. 25. Accordingly, the ALJ determined that Plaintiff was not entitled to
disability insurance benefits under Sections 216(i) and 223(d) of the Social Security Act. Plaintiff
filed a request for review of the ALJ’s decision, which was denied by the Appeals Council on March
26, 2015. Tr. 1-3. Thus, the decision of the ALJ became the “final decision” of the Commissioner
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for the purposes of judicial review. Plaintiff thereafter brought this action pursuant to 42 U.S.C. §
405(g), seeking judicial review.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Paige J. Gossett for a Report and Recommendation. On June 20,
2016, the Magistrate Judge filed a Report and Recommendation in which she recommended that the
Commissioner’s decision to deny benefits be affirmed. ECF No. 27. Plaintiff filed objections to the
Report and Recommendation on July 19, 2016. ECF No. 31. The Commissioner filed a response to
Plaintiff’s objections on August 5, 2016. ECF No. 34.
This matter now is before the court for review of the Magistrate Judge’s Report and
Recommendation. The court is charged with making a de novo determination of any portions of the
Report to which a specific objection is made. The court may accept, reject, or modify, in whole or
in part, the recommendation made by the Magistrate Judge or may recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b).
II.
STANDARD OF REVIEW
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 that “[t]he findings of the
Commissioner of Social Security 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
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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.
The Commissioner’s findings of fact are not binding if they were based upon the application
of an improper legal standard. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). However, the
Commissioner’s denial of benefits shall be reversed only if no reasonable mind could accept the
record as adequate to support that determination. Richardson v. Perales, 402 U.S. 389, 401 (1971).
III.
DISCUSSION
Plaintiff was forty-three years old when her disability is alleged to have begun. Tr. 19. She
completed high school and has some college education. Tr. 239. Plaintiff has previously worked as
a certified ophthalmic assistant. She claims disability beginning January 23, 2012, alleging vasculitis;
inflammatory arthritis; neuropathy; severe pain, numbness, and tingling in feet, legs, and hands;
diabetes; depression; anxiety; chronic Achilles tendon tears in both ankles; chronic peritendinitis
in her feet; retricalcaneal bursitis in both feet; short term memory problems; and cognitive problems.
Tr. 238. Plaintiff asserts specific objections to the Report and Recommendation. The court will
review each of these objections in turn.
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A.
Opinions of treating physician, Dr. Niemer
Plaintiff’s first objection is to the Magistrate Judge finding no error in the ALJ rejecting some
of the opinions of Dr. Gregory Niemer. ECF No. 31 at 1. According to Plaintiff, Dr. Niemer’s
opinions supported a finding of disability, especially as it related to Plaintiff’s rheumatoid arthritis
and retinal vasculitis. Id. However, in his decision, the ALJ stated that he had “accorded little weight
to Dr. Niemer’s opinions as they are not supported by the weight of the evidence of the record and
inconsistent with his own treatment notes.” Tr. 18. Plaintiff argues that on the contrary, there is
evidence that “would corroborate Dr. Niemer’s opinions.” ECF No. 31 at 2. Specifically, Plaintiff
points to records from Elms Digestive, Tidewater Neurology, and South Carolina Sleep Medicine.
Id.
While the court agrees that there is evidence in the record to support parts of Dr. Niemer’s
opinions (Tr. 335, 1044, 1075, 1093), however, this is not the relevant inquiry for the court to
consider. Instead, the inquiry is whether the ALJ relied on substantial evidence in support of his
findings. See 42 U.S.C. § 405(g). If a treating physician’s opinion is “inconsistent with other
substantial evidence,” an ALJ may accord that opinion less weight. Mastro v. Apfel, 270 F.3d 171,
178 (4th Cir. 2001) (internal quotations omitted). The ALJ found substantial evidence to be in
conflict with the opinion of Dr. Niemer: First, the ALJ considered the opinions of the nonexamining physicians employed by the State Disability Determination Services and found them to
be in conflict with the opinions of Dr. Niemer. Tr. 18. Second, the ALJ relied on several physical
examinations of Plaintiff, conducted by doctors at SC Sports Medicine, Low Country Rheumatology,
and Lowcountry Internal Medicine (Tr. 17-18); the results of these physical examinations were also
in conflict with the opinions of Dr. Niemer. In the face of conflicting evidence, it is not the role of
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the court to supplant its opinion for that of that of the ALJ’s. See Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990) (“Ultimately, it is the duty of the administrative law judge reviewing a case, and
not the responsibility of the courts, to make findings of fact and to resolve conflicts in the
evidence.”). The court finds that the ALJ relied on substantial evidence in arriving at his decision
to afford less weight to Dr. Niemer’s opinions. Therefore, Plaintiff’s objection is without merit.
B.
Opinions of state agency physicians, Dr. Lang and Dr. Neboschick
Plaintiff’s second objection is related to her first: the Magistrate Judge erred in allowing the
ALJ to rely on the opinions Dr. Mary Lang and Dr. Michael Neboschick rather than the opinion of
his treating physician. ECF No. 31 at 3. Dr. Lang and Dr. Neboschick are physicians employed by
the State Disability Determination Services, and they submitted a report on July 7, 2012, with a
determination that Plaintiff was “not disabled.” Tr. 58-72. Plaintiff argues that this 2012 report
should not be afforded greater weight than the more contemporaneous opinions of Dr. Niemer. ECF
No. 31 at 3. Additionally, Plaintiff argues that the 2012 report failed to include records from
Plaintiff’s 2013 examinations at Tidewater Neurology and Elms Digestive Disease Specialists. Id.
While it is true that the 2012 report completed by Dr. Lang and Dr. Neboschick did not
include opinions and records collected in 2013, it is not the role of the court to decide on which
evidence an ALJ should rely, regardless of when that evidence was collected. See Hays, 907 at 1456.
As discussed above, the relevant inquiry is whether the ALJ relied on substantial evidence. Given
that the ALJ considered several reports and opinions, not just those of Dr. Lang and Dr. Neboschick,
the court finds that the ALJ’s opinion was supported by substantial evidence in the case record.
Plaintiff’s objection is without merit.
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C.
Hypothetical questions posed during hearing
Plaintiff’s final objection is to the Magistrate Judge finding no error in the ALJ asking
hypothetical questions of the vocational expert during Plaintiff’s November 13, 2013 hearing. ECF
No. 31 at 3. Plaintiff argues that the hypothetical questions posed by the ALJ did not accurately
reflect all of Plaintiff’s medical conditions and limitations. Id. In her argument, Plaintiff relies on
Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989), in which the Fourth Circuit held that: (1) a
vocational expert’s opinion must be based upon a consideration of all the evidence in the record in
order to be helpful, and (2) a proper hypothetical question must fairly set out all of a claimant’s
impairments. Even if the court were to find the hypothetical questions to be improper under the
second prong of Walker, Plaintiff offers no evidence to suggest that the vocational expert did not
consider the all the evidence in the record. Moreover, even if the court were to completely discount
the opinion of the vocational expert, there still remains substantial evidence in support of the ALJ’s
ultimate determination, as discussed in both preceding sections. Plaintiff’s objection is without merit.
IV. CONCLUSION
After reviewing the entire record, the applicable law, the briefs of counsel, the findings and
recommendations of the Magistrate Judge, and Plaintiff’s objections, this court adopts the Magistrate
Judge’s Report and Recommendation and incorporates it herein by reference. For the reasons set
out hereinabove and in the Report and Recommendation, the Commissioner’s final decision of no
disability is affirmed.
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IT IS SO ORDERED.
s/ Margaret B. Seymour
MARGARET B. SEYMOUR
Senior United States District Judge
August 22, 2016
Columbia, South Carolina
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