Forrester v. Commissioner of Social Security Administration

Filing 39

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION declining to adopt 26 Report and Recommendation, reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the action to the Commissioner for further proceedings. Signed by Honorable J. Michelle Childs on 03/31/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Amy C. Forrester,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin,
)
Acting Commissioner of the
)
Social Security Administration,
)
)
Defendant.
)
___________________________________ )

Civil Action No. 1:12-cv-02111-JMC
ORDER AND OPINION

This matter is before the court for review of the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 26), filed October 8, 2013, regarding Plaintiff Amy C.
Forrester’s (“Plaintiff”) claim for Disability Insurance Benefits (“DIB”). On July 27, 2012, Plaintiff
filed the instant action seeking judicial review of the final decision of the Acting Commissioner of
the Social Security Administration (“the Acting Commissioner”) pursuant to 42 U.S.C. § 405(g).
(ECF No. 1.) The magistrate judge recommends that the court affirm the Acting Commissioner’s
final decision. (ECF No. 26 at 1.)

For the reasons set forth below, the court REJECTS the magistrate judge’s Report. The
Acting Commissioner’s final decision is thereby REVERSED and this action is REMANDED.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes, upon its own careful review of the record, that the factual
summation in the magistrate judge’s Report is accurate, and the court adopts this summary as its
own. However, a brief recitation of the background in this case is warranted.

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Plaintiff filed an application for DIB on June 19, 2008, regarding a disability which she
alleged began on November 2, 2007.1 (Tr. 16, 99–105.)2 The Acting Commissioner initially
denied Plaintiff’s application and denied it again upon reconsideration. Id. On July 8, 2010,
Plaintiff had a hearing before an administrative law judge (“ALJ”). (See Tr. 31–46.) On August
24, 2010, the ALJ found that Plaintiff was not disabled. (Tr. 13–30.) The ALJ determined that
Plaintiff had the following severe impairments: cervical and lumbar degenerative disc disease,
depression, and anxiety. (Tr. 18.) The ALJ concluded that Plaintiff had a residual functional
capacity (“RFC”) to perform sedentary work with the following specifications:
[N]o climbing of ladders, ropes, or scaffolds, occasional climbing of ramps
and stairs, balancing, stooping, kneeling, crouching, crawling, and overhead
reaching. [Plaintiff] was additionally limited to the performance of simple,
routine, repetitive tasks.
(Tr. 20.) As further discussed below, the central issue before the court is whether the ALJ
properly evaluated the opinion of Plaintiff’s pain management specialist Dr. William B.
Richardson, and whether the ALJ conducted a proper credibility determination.
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) of the Social
Security Act to obtain judicial review of the final decision of the Acting Commissioner, denying
her claim for DIB. (ECF No. 1.) The magistrate judge reviewed Plaintiff’s case and provided
the Report to the court. (ECF No. 26.) Among the several recommendations of the Report, the
magistrate judge found that the ALJ’s decision to accord little weight to Dr. Richardson’s
opinion was supported by substantial evidence. Id. at 25. The magistrate judge also concluded
that the ALJ reached an appropriate credibility determination. Id. at 29. For these reasons,

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Plaintiff initially alleged an onset date of November 2, 2001, but amended the date to
November 2, 2007, at the hearing. (Tr. 16.)
2
The court cites to pages in the transcript of the administrative record and not to the electronic
case filing page numbers.
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among others, the magistrate judge recommended that the court affirm the Acting
Commissioner’s final decision. Id. at 30.
STANDARD OF REVIEW
The magistrate judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The magistrate
judge makes only a recommendation to this court. The recommendation has no presumptive
weight. The responsibility to make a final determination remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objections
are made, and the court may accept, reject, or modify, in whole or in part, the magistrate judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one.

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 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. See 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. See 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 agency.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969).

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“[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 this
conclusion is rational.” Vitek, 438 F.2d at 1157–58.
DISCUSSION
Plaintiff objects to the Report on two grounds. First, Plaintiff argues that the ALJ’s
discounting of Dr. Richardson’s impressions was not based on substantial evidence. (ECF No.
34 at 2.)

Specifically, Plaintiff’s objection focuses on the ALJ’s conclusion that Dr.

Richardson’s assessed limitations were unsupported by the medical evidence in the record. Id.
Second, Plaintiff contends that the ALJ’s evaluation of Plaintiff’s credibility was improper and
raises several arguments in this regard. The court will address each of Plaintiff’s objections in
sequence.
The ALJ’s Discounting of Dr. Richardson’s Opinion
The ALJ accorded limited weight to the impressions of Plaintiff’s treating physician, that
Plaintiff could not perform work, even at the sedentary level. (Tr. 22.) The ALJ reasoned that
Dr. Richardson had few clinical findings to support such a restrictive assessment. Id. As an
example of what the ALJ considered inadequate grounding within Dr. Richardson’s treatment
records, the ALJ cited a February 2010 report which found that while Plaintiff’s muscles were
tender to palpation, she demonstrated negative straight leg raising with no motor or sensory
deficits noted. Id. The ALJ also gave significant weight to the opinion of consultative mental
health examiner Dr. Francis Fishburne who stated that Plaintiff had a GAF of 70. Id. The ALJ
gave some weight to the opinions of state agency medical consultants whose findings indicated
that Plaintiff was not disabled. Id. Based on the ALJ’s review of the medical evidence, he
concluded that Plaintiff’s treatment of her degenerative disc disease had been essentially routine

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and generally successful in controlling her symptoms. (Tr. 23.) The ALJ stated that Plaintiff’s
medical records failed to show the disabling pain which Dr. Richardson’s impressions would
suggest.

Id. The ALJ also noted that while Plaintiff had undergone cervical and lumbar

laminectomies in the past, she had not been recommended for additional surgery. Id.
Ordinarily, a treating physician’s opinion is entitled to great weight. See Mastro v. Apfel,
270 F.3d 171, 178 (4th Cir. 2001); 20 C.F.R. § 416.927. Where the treating physician’s findings
are “well-supported by medically acceptable clinical and laboratory techniques and is not
inconsistent with the other substantial evidence in the record,” the ALJ must grant it controlling
weight. Id.; SSR 96-2P, 1996 WL 374188 (July 2, 1996). However, “the ALJ holds the
discretion to give less weight to the testimony of a treating physician in the face of persuasive
contrary evidence.” Mastro, 270 F.3d at 178; 20 C.F.R. § 416.927. When the ALJ decides
against granting controlling weight to the treating source’s opinion, the ALJ must consider a set
of factors, namely: the length, nature, and extent of the treatment relationship; the frequency of
examination; the supportability of the physician’s opinion; the extent to which the opinion is
consistent with the record; and whether the treating physician is a specialist for the medical issue
involved.

20 C.F.R. § 404.1527(c)(2).

Additionally, the ALJ’s decision must provide an

explanation with solid reasoning for reducing the weight of a treating physician’s opinion. SSR
96-2P, 1996 WL 374188 (July 2, 1996). The Social Security Regulations state, in relevant part:
[The ALJ’s] decision must contain specific reasons for the weight given to
the treating source’s medical opinion…and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that weight.
Id.
Upon a review of the record, the court finds that Dr. Richardson’s assessment of
Plaintiff’s limitations is not clearly inconsistent with the other substantial medical evidence. As

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Plaintiff notes in her objections, her treating pain management specialists, including Dr.
Richardson, noted several conditions throughout their treatment of Plaintiff which could
reasonably be expected to cause debilitating pain. (ECF No. 34 at 4–5) (citing, inter alia, Tr.
276–79, 283, 473, 504–07.) Because Dr. Richardson is a treating physician and also a specialist
for Plaintiff’s medical issue, the court finds that the ALJ’s explanation for according Dr.
Richardson’s opinion limited weight is materially lacking.
Specifically, the treatment record the ALJ cited in support of the notion that Dr.
Richardson’s opinion was unsupported concerned an evaluation outside of Plaintiff’s alleged
disability period.3

The GAF score by the mental health examiner which the ALJ gave

considerable weight did not pertain to Plaintiff’s pain but was instead related to Plaintiff’s
purported mental impairments.

Moreover, as the ALJ noted, the opinions of state agency

consultants, alone, are generally not entitled to great weight. SSR 96-6P, 1996 WL 374180, at
*2 (July 2, 1996) (“[T]he opinions of State agency medical and psychological consultants…can
be given weight only insofar as they are supported by evidence in the case record[.]”) Therefore,
the court finds that the ALJ’s discounting of Dr. Richardson’s opinions falls short of the solid
reasoning required to reduce the weight of a treating physician’s opinion.
The ALJ’s Credibility Determination
In evaluating the pain alleged by a plaintiff, the ALJ should consider whether there is
objective evidence of an impairment that could have reasonably caused the pain alleged. 20
C.F.R. § 404.1529(c)(2). The ALJ must also consider other, non-objective, evidence regarding
the severity of the pain including the plaintiff’s own statements. 20 C.F.R. § 404.1529(c)(3).
Plaintiff objects that the ALJ did not properly assess Plaintiff’s subjective complaints, in part

3

Plaintiff alleges a disability period from November 2, 2007 through March 31, 2009. (Tr. 25.)
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because the ALJ did not consider that Plaintiff’s complaints were supported by the impressions
of Dr. Richardson. (See ECF No. 34 at 16.) Given the court’s decision to remand this action to
the ALJ for further consideration of Dr. Richardson’s opinion, the court also instructs the ALJ to
reconsider Plaintiff’s credibility in light of that determination.
CONCLUSION
For the foregoing reasons, the court REJECTS the magistrate judge’s Report and
Recommendation (ECF No. 26). The court thereby REVERSES AND REMANDS the Acting
Commissioner’s final decision.
IT IS SO ORDERED.

United States District Court Judge

March 31, 2014
Columbia, South Carolina

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