Roberson v. Commissioner of Social Security Administration

Filing 24

ORDER RULING ON REPORT AND RECOMMENDATION adopting 15 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Timothy M. Cain on 02/06/2017. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Kimberly C. Roberson,
Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 0:15-cv-3486-TMC

ORDER

The plaintiff, Kimberly C. Roberson (“Roberson”), brought this action pursuant to the
Social Security Act (“SSA”), 42 U.S.C. § 405(g), seeking judicial review of a final decision of
the Commissioner of Social Security (“Commissioner”),1 denying her claim for Disability
Insurance Benefits (“DIB”). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling.
Before this court is the magistrate judge’s Report and Recommendation (“Report”),
recommending that the court affirm the Commissioner’s decision. (ECF No. 15).2 In the Report,
the magistrate judge sets forth the relevant facts and legal standards, which are incorporated
herein by reference.

Roberson filed objections to the Report (ECF No. 17), and the

Commissioner responded to those objections (ECF No. 21). Accordingly, this matter is now ripe
for review.

1

Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration on January 27, 2017.
Pursuant to Fed.R.Civ.P.25(d), Berryhill should be substituted for Carolyn W. Colvin as the defendant in this action.
2
The magistrate judge's recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The
court is charged with making a de novo determination of those portions of the Report to which specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate
judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

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BACKGROUND
Roberson applied for DIB in January 2012, alleging disability beginning on June 17,
2011. Roberson’s application was denied initially and on reconsideration. On December 19,
2013, an Administrative Law Judge (“ALJ”) heard testimony from Roberson and a vocational
expert. On March 30, 2014, the ALJ issued a decision denying Roberson’s claim.
In his decision, the ALJ found that Roberson suffered from the following severe
impairments: degenerative joint disease of the lumbar spine, diabetes mellitus, obesity, and
gastrointestinal conditions, including irritable bowel syndrome (“IBS”) and ulcerative colitis.
(ECF No. 5-2 at 14). The ALJ found that, despite Roberson’s limitations, she could perform past
relevant work as a bookkeeper and as an office clerk, as this work did not require the
performance of work-related activities precluded by Roberson’s residual functional capacity.
(ECF No. 5-2 at 45). Roberson sought review of her case by the Appeals Council. The Appeals
Council denied Roberson’s request for review, making the ALJ’s decision the final decision of
the Commissioner. This action followed.
STANDARD OF REVIEW
The federal judiciary has a limited role in the administrative scheme established by the
SSA. Section 405(g) of the Act provides, “the 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 . . . 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). Thus, in its review,
the court may not “undertake to re-weigh conflicting evidence, make credibility determinations,
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or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
However, “[f]rom this it does not follow . . . 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 agency.” Flack v. Cohen, 413 F.2d
278, 279 (4th Cir. 1969). Rather, “the 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 this conclusion is rational.” Vitek, 438 F.2d at 1157–58.
DISCUSSION
In her objections, Roberson contends that the magistrate judge erred by finding the
weight that ALJ assigned to the treating physicians’ opinions was supported by substantial
evidence.
First, Roberson alleges that the ALJ erroneously discounted the opinion of Dr. Krishniah,
Roberson’s primary treating physician, because he is not a specialist in the medical areas at
issue. The regulation cited by Roberson states that “generally . . . more weight [is given] to the
opinion of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5). 3 The ALJ did not state
that Dr. Krishniah’s opinion was given less consideration because he was not a specialist.
Rather, the ALJ considered Dr. Krishniah’s analysis in detail and attributed limited weight to it
due to the fact that Dr. Krishniah’s opinions were not supported by Roberson’s subjective
remarks and daily activities; Roberson’s hospital records; some of Dr. Rickoff’s records; and Dr.
Krishniah’s treatment notes, including his examinations and diagnostic tests. (ECF No. 5-2 at
3

Mistakenly cited as 20 C.F.R. § 404.1527(a)(5) in Roberson’s objections. (ECF No. 17 at 1). The provision is
silent regarding the weighing of non-specialist’s opinions. See 20 C.F.R. § 404.1527(c)(5).

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34–38).
The ALJ examined, discussed and referenced each of the four questionnaires completed
by Dr. Krishniah. (ECF 5-2 at 31–33). In weighing this evidence, the ALJ addressed the relevant
factors, observing that Dr. Krishniah was a treating physician, and the relationship consisted of
multiple office visits and examinations extending over at least two and a half years.

Johnson v.

Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (A treating physician’s opinion is evaluated and
weighed “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.”); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001)
(“‘[I]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with
other substantial evidence, it should be accorded significantly less weight.’ Under such
circumstances, the ALJ holds the discretion to give less weight to the testimony of a treating
physician in the face of persuasive contrary evidence.” (quoting Craig, 76 F.3d at 590)). The
ALJ detailed ways in which Dr. Krishniah’s opinions were not supported by Roberson’s
subjective remarks and daily activities; Roberson’s hospital records; some records of Dr.
Rickoff; and Dr. Krishniah’s own treatment notes. (ECF No. 5-2 at 34–38). The ALJ noted that,
“Dr. Krishniah has offered several statements on the claimant’s behalf that largely support her
allegations,” but found that “in many respects, Dr. Krishniah’s statements underestimate the
claimant’s level of functioning,” and, considering the record, gave his opinions limited weight.
(ECF No. 5-2 at 33).
In his analysis, the ALJ observed that Dr. Krishniah is an internist, and thus “not
necessarily an expert in the evaluation, diagnosis, and treatment of any of the claimant’s alleged
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impairments, including the gastrointestinal problems, mental conditions, diabetic conditions,
fibromyalgia, or back problems.” Id. However, the evidence does not suggest that this fact
alone caused the ALJ to give Dr. Krishniah’s opinion less weight, as opposed to merely pointing
out why Dr. Krishniah’s opinion was not entitled to more weight as a specialist’s would be
according to § 404.1527(c)(5).

Judging the record as a whole, Roberson has failed to

demonstrate that the ALJ’s decision was unsupported by substantial evidence or reached through
application of an incorrect legal standard.
Second, Roberson alleges that the ALJ erroneously rejected the opinions of Dr. Rickoff, a
treating physician. The ALJ attributed only slight weight to Dr. Rickoff’s opinion because he
found that Dr. Rickoff’s opinion underestimated Roberson’s level of functioning and that
Roberson’s subjective remarks, Rickoff’s own treatment notes, Roberson’s hospital records, and
some of Dr. Krishniah’s records did not support Dr. Rickoff’s statements fully.
The inquiry before the court is whether the weight given to the opinions of Drs. Rickoff
and Krishniah by the ALJ is supported by substantial evidence. See 42 U.S.C. § 405(g); see also
Craig, 76 F.3d at 589 (stating that the court does not “undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]”).
Rather than making unsupported general statements, the ALJ examined Dr. Rickoff’s opinion
evidence in detail, actually stating that he gave it greater weight than Dr. Krishniah’s regarding
Roberson’s gastrointestinal problems due to Dr. Rickoff’s specialty as a gastroenterologist.
(ECF No. 5-2 at 28–31). Further, the ALJ detailed the ways in which Roberson’s subjective
remarks, Roberson’s hospital records, and some of Dr. Krishniah’s records contradicted or did
not fully support Dr. Rickoff’s statements, causing the ALJ to give the opinion limited weight.
Id. The court finds that the ALJ properly considered the opinions, and substantial evidence
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supports the weight afforded to those opinions. See Johnson, 434 F.3d at 656 n.8 (stating that
ALJ can give lesser weight to a treating physician’s opinion when it conflicts with other medical
evidence or when it represents a change in opinion without a change in diagnosis); Stanley v.
Barnhart, 116 F. App’x 427, 429 (4th Cir. 2004) (disagreeing with the argument that the ALJ
improperly gave more weight to residual functional capacity assessments of non-examining state
agency physicians over those of examining physicians and finding that the ALJ properly
considered evidence provided by those physicians in context of other medical and vocational
evidence); see also 20 C.F.R. § 404.1527(e)(2)(i) (State agency medical and psychological
consultants and other program physicians, psychologists, and other medical specialists are highly
qualified . . . [and] are also experts in Social Security disability evaluation.

Therefore,

administrative law judges must consider [their] findings and opinions as opinion evidence”).
The magistrate judge properly found that Roberson failed to prove that the ALJ’s decision was
unsupported by substantial evidence. See Celebrezze, 331 F.2d at 545 (stating that the claimant
has the burden of proof).
CONCLUSION
After carefully reviewing the record, the court finds that the ALJ, in reviewing the
medical history and subjective testimony, conducted a thorough and detailed review of
Roberson’s impairments, arguments, and functional capacity. Likewise, the magistrate judge
considered each of Roberson’s arguments and properly addressed each in turn, finding them
without merit. The court finds no basis for disturbing the Report. Accordingly, the court adopts
the Report and its recommended disposition. Therefore, for the reasons set out above and in the
Report, the Commissioner's final decision is AFFIRMED.
IT IS SO ORDERED.
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s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
February 6, 2017

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