Johnson v. Commissioner of the Social Security Administration

Filing 34

ORDER RULING ON REPORT AND RECOMMENDATION: The Report and Recommendation of the Magistrate Judge is adopted, and this action is remanded to the Commissioner pursuant to sentence four of U.S.C. § 405(g) for further administrative action. Signed by Honorable Joseph F Anderson, Jr on 12/8/2011. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Lawrence Johnson,

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

C/A No. 1:10-2189-JFA-SVH

ORDER

The plaintiff, Lawrence Johnson, brings this action pursuant to 42 U.S.C. § 405(g) to
obtain judicial review of the final decision of the Commissioner of Social Security
(Commissioner) denying his claim for disability insurance benefits (DIB) under Title II of
the Social Security Act, 42 U.S.C. §§ 401–433.
In a detailed and comprehensive Report and Recommendation, the Magistrate Judge
assigned to this action 1 recommends that this action be remanded for further review by the
Administrative Law Judge (ALJ) for three somewhat interrelated reasons. The Report sets
forth in detail the relevant facts and standards of law on this matter, and the court
incorporates such without a recitation.
The Commissioner has timely objected to the Report and Recommendation and
disagrees with the Magistrate Judge as to each of the suggested three grounds for remand.

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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, or modify, in whole or in part, the recommendation of the M agistrate Judge, or recommit
the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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D ISCUSSION
As to the initial claim for disability benefits, the Magistrate Judge recommends that
the decision of the Commissioner be reversed for two independent reasons, and the
Commissioner has objected to this portion of the Report and Recommendation. As to one
asserted ground of error, namely the argument that the ALJ unreasonably found plaintiff’s
impairment did not meet the requirements of Listing Section 7.05A, the Magistrate Judge
agrees with the Commissioner and the plaintiff has not objected to this portion of the Report.
As to the plaintiff’s request for a remand for consideration of evidence that was before
the Appeals Council, but not before the ALJ, the Magistrate Judge suggests that the evidence
put before the Appeals Council was not “new” making 20 CFR § 404.970(b) inapplicable.
The plaintiff has not taken objection to this portion of the Report.
Finally, the Magistrate Judge determined that the Commissioner’s August 6, 2010
favorable decision on his second application was not new and material evidence for which
a reversal and remand under sentence six of 42 U.S.C. § 405(g) would be appropriate. The
plaintiff has not taken objection to this portion of the Report.
As to those portions of the Report that are before this court because of the
Commissioner’s objections, this court has, after careful consideration of the total record in
this case, concluded that the Magistrate Judge’s recommended disposition is correct.
T HE ALJ’S E VALUATION OF P LAINTIFF’S S UBJECTIVE C OMPLAINTS
The plaintiff contends, and the Magistrate Judge agrees, that the action should be
remanded so that the ALJ may consider plaintiff’s subjective complaints and evaluate his
credibility without requiring the specific physical manifestations of Sickle Cell Disease
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(SCD) pain that the ALJ discussed in his July 28, 2009 opinion. In essence, the Magistrate
Judge concludes that the ALJ did not properly follow the decision of the United States Court
of Appeals for the Fourth Circuit in Hines v. Barnhart, 453 F.3d 559 (4th Cir. 2006), which
involved a claimant with SCD, the same malady that the plaintiff in this action suffers from.
As the Magistrate Judge observes, the Fourth Circuit pointed out in Hines that SCD
is a “particularly insidious disease because it rarely produces the objective medical evidence
that clinicians desire.” 453 F.3rd at 560–61. The court went on to observe:
“[p]atient[s] with SCD . . . are in an almost uniquely disadvantaged position
from the point of view of pain management. The condition is life threatening
at times, yet patients are healthy between sickling episodes. Some individuals
are affected by painful episodes much more than others, and pain is often the
only or main symptom of an acute episode of illness.”
453 F.3d at 561 (quoting James Elander & Kenny Midence, A Review of Evidence About
Factors Affecting Quality of Pain Management in Sickle Cell Disease, 12(3) The Clinical
J. of Pain 180–93 (Sept. 1996)).
In Hines, the ALJ made the error of discounting claimant’s subjective complaints
because there was “no evidence of end-organ damage to [claimant’s] kidneys or bones,
neurological deficits, swollen joints or extremities, muscle atrophy, or decreased range of
motion in [claimant’s] joints.” Id. at 563.
The Magistrate Judge is of the opinion that the ALJ made a similar mistake in this
case. According to the Magistrate Judge, the plaintiff provided sufficient evidence of his
sometimes-debilitating pain through his testimony, the opinions of his treating physicians,
and the medical records of numerous treatments for pain and crises from his SCD. Then,
according to the Magistrate Judge, the ALJ improperly focused on objective evidence (or the
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lack thereof) in the second portion of his analysis, discounting the plaintiff’s subjective
claims of pain. TR at 22 (noting that the evidence did not show “strength deficits, circulatory
compromise, neurological deficits, muscle spasms, fasciculations, fibrillations, or muscle
atrophy or dystrophy”).
In objecting to this portion of the Report, the Commissioner contends that first, the
ALJ found several discrepancies in the record that undermine plaintiff’s credibility.
Secondly, the ALJ correctly “considered the objective evidence in the record.” Objection
Mem. at 2. The Commissioner then suggests that the Magistrate Judge has engaged in
improperly weighing the evidence, because that is not the court’s function.
This court respectfully disagrees that the Magistrate Judge has improperly weighed
the evidence. After carefully considering the Magistrate Judge’s comprehensive Report and
Recommendation, containing an exhaustive review of the record in this matter, the court is
left with the firm conclusion that the ALJ violated Hines by discounting plaintiff’s subjective
testimony based on the lack of objective criteria regarding SCD, a disease which does not
often manifest itself objectively.
Similarly, the Magistrate Judge is of the opinion that the ALJ erred by discounting the
opinions of Dr. Allen Kolb, plaintiff’s treating physician. The Magistrate Judge correctly
notes that the standard law in this area is that if a treating source’s medical opinion is “well
supported and not inconsistent with the other substantial evidence in the case record, it must
be given controlling weight.” SSR 96-2p; see also 20 C.F.R. § 416.927(d)(2) (providing
treating source’s opinion will be given controlling weight if well-supported by
medically-acceptable clinical and laboratory diagnostic techniques and inconsistent with
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other substantial evidence in the record).
In this case, the ALJ discussed some of Dr. Kolb’s medical records and gave little
weight to Dr. Kolb’s opinions that plaintiff would miss “more than three days of work per
months because of his sickle cell disease.” TR at 760. The Magistrate Judge suggests that
the ALJ improperly discounted Dr. Kolb’s opinion. Just as the ALJ improperly required
objective medical evidence to discount plaintiff’s claims of pain, the Magistrate Judge
suggests that the ALJ did not properly evaluate the treating physician’s testimony in light of
the Hines decision regarding claimants with SCD.
Plaintiff has objected to this portion of the Report, arguing that the Magistrate Judge
incorrectly finds that the ALJ only considered the objective medical evidence in discounting
Dr. Kolb’s opinions.
As the Magistrate Judge specifically provided, however,
In discounting Dr. Kolb’s opinions, the ALJ finds that Plaintiff’s subjective
complaints are “not associated with bony or joint destruction, bruising,
significant swelling or erythema, significantly increased skin temperature, or
recurrent fevers.” Tr. 23. He does not explain why he believes the absence of
those physical symptoms are important, highlighting the need for remand. On
remand, the ALJ should consider Dr. Kolb’s records and opinions in light of
the Fourth Circuit’s instruction in Hines regarding claimants with [sickle cell
disease]. See Hines, 453 F.3d at 565. Further, in his decision, the ALJ should
consider the factors set forth in 20 C.F.R. § 419.927. He should also provide
detailed information regarding the opinions he considers and reasons for
accepting or rejecting them.
R&R at 24–25.
This court thus concludes that the Magistrate Judge’s analysis is correct and that the
ALJ improperly discounted plaintiff’s subjective testimony.

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C ONCLUSION
It is the duty of the ALJ reviewing the case, and not the responsibility of the courts,
to make findings of fact and resolve conflicts in the evidence. This court’s scope of review
is limited to the determination of whether the findings of the Commissioner are supported
by substantial evidence taking the record as a whole, Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996), and “whether the correct law was applied,” Walls v. Barnhart, 296 F.3d 287, 290
(4th Cir. 2002).
Having identified two procedural errors in the decision of the ALJ, this court is led
to conclude that the Magistrate Judge’s recommendation that this action be remanded for
further review in light of the discussion herein is appropriate, and the Report is adopted
herein by reference.
Accordingly, the objections are all overruled and this action is hereby remanded to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative
action as set out here and in the Magistrate Judge’s Report and Recommendation, which is
incorporated herein by reference.
IT IS SO ORDERED.

December 8, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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