Solesbee v. Commissioner of Social Security Administration

Filing 29

ORDER RULING ON REPORT AND RECOMMENDATIONS The Court hereby reverses that portion of the Commissioner's decision denying disability insurance benefits to Plaintiff for the period from July 16, 2004 to March 17,2007, pursuant to sentence four of 42 U.S.C. § 405(g), and remands the matter to the Commissioner for further action consistent with this Order. Signed by Honorable Richard M Gergel on 10/25/2011. (jbry, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Carolyn Solesbee,
Plaintiff,

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Civil Action No.2: 10-1882-RMG

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vs.
Michael J. Astrue, Commissioner
of the Social Security
Administration,
Defendant.

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ORDER

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review of the
final decision of the Commissioner of the Social Security Administration regarding her claim for
disability insurance benefits. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
D.S.C., this matter was referred to a United States Magistrate Judge for pretrial handling. The
Magistrate Judge recommended the decision of the Commissioner be affirmed. For reasons set
forth below, the Court reverses that portion of the Commissioner's decision denying Plaintiff
disability insurance benefits from July 16, 2004 through March 17, 2007 and remands this matter
to the Commissioner for further action consistent with this decision.
Legal Standard

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
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determination of those portions of the Report to which specific objection is made, and may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to her with instructions. 28 U.S.c. § 636(b)(l).
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 preponderance." Thomas v. Celebrezze, 331 F.2d 541,543
(4th Cir. 1964). This standard precludes de novo review of factual circumstances that substitutes
the Court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir.
1971 ).
Although the federal court's review role is limited, "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). Further, 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).
Rules and regulations of the Social Security Administration mandate that the
Commissioner make a systematic and careful review of the medical record and other evidence
presented by the claimant, which includes a review and weighing of all relevant medical opinions
and diagnoses. The Commissioner must evaluate each disability claim utilizing a five step
proc~ss,

which b~gins at Step One with a detennination whether the claimant is still employed.
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20 C.F.R. § 404.1520(a). If the claimant is not gainfully employed, the Commissioner must
consider at Step Two the severity of all of the claimant's impairments. An impairment is deemed
"severe" ifit "significantly limits" the claimant's "physical or mental ability to do basic work
activities." § 1520(a)(ii), (c). The Commissioner must then consider at Step Three whether any
of the severe impairments of the claimant meet or equal the listings in Appendix 1, which would
automatically establish the claimant's disability. § 1520(a)(iii). If the claimant does not meet the
requirements of the Appendix 1 listings, the Commissioner must at Step Four assess the
claimant's residual functional capacity ("RFC") "based on all the relevant medical and other
evidence." § 1520(a)(iv), (e). Assuming that the claimant is not able to perform his or her past
relevant work, the Commissioner must assess at Step Five the claimant's RFC and age, education
and work experience to determine whether there is other available work the claimant can
perform. § 1520(a)(v), (g).
A claim of disability can be based on physical or mental impairments or a combination of
both. The Commissioner is obligated to consider all "medically determinable impairments" and
consider all medical evidence, opinions of medical sources and other evidence. 20 C.F.R. §
404.1545. "Medical opinions" include "statements from physicians and psychologists and other
acceptable medical sources that reflect judgments about the nature and severity of [the
claimant's] impairments, including ... symptoms, diagnosis and prognosis ...." 20 C.F.R. §
404. 1527(a)(2). Special consideration under some circumstances is given to a claimant's treating
physician, and other factors considered by the Commissioner regarding the medical opinions of
health providers include whether the provider examined the patient, the treatment relationship
with the provider and whether the provider is a specialist in the field in which the opinion is
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given. § 1527(d)(l )~(6). The Commissioner is obligated to "always consider the medical
opinions" available in the record. § 1527(b). See also, SSR 96~8P, 1996 WL 374184 at *6.
In addition to analyzing all relevant evidence in the record, including all medical
opinions, the Commissioner has the duty to set forth and analyze in his decision all relevant
evidence and to explain the weight given to all probative evidence. As the Fourth Circuit stated
in Gordon v. Schweiker, 725 F.2d 231,235 (4th Cir. 1984), "[w]e cannot determine if findings
are unsupported by substantial evidence unless the Secretary explicitly indicates the weight given
to all of the relevant evidence." For instance, in making the RFC assessment, the
Commissioner's decision "must include a narrative discussion describing how the evidence
supports each conclusion" and must explain any conflict between the RFC assessment and any
opinion from a medical source. SSR 96~8P at 7. Further, in assessing the credibility ofthe
claimant regarding his or her subjective complaints, the Commissioner's decision must "contain
specific reasons for the finding on credibility, supported by the evidence in the case record ...
and must be sufficiently specific to make clear ... the weight the adjudicator gave to the
[claimant's] statements and the reasons for that weight." S SR 96-7P, 1996 WL 374186 at * 1-2.
Moreover, "[i]t is not sufficient for the adjudicator to make a single, conclusory statement" that
the claimant is not credible. Id.

Factual Background
Plaintiff submitted an application for a period of disability and disability insurance
benefits on September 27, 2004, asserting she was disabled beginning on July 16,2004. Plaintiff
has not engaged in substantial gainful employment since the date of asserted disability. (Tr. at
16). Plaintiff asserted multiple impairments as the basis of her disability, which included
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degenerative disc disease requiring decompression, fusion and placement of instrumentation,
bilateral chronic knee pain with radiographic evidence of meniscus tears and psychological
disorders including Dysthymic Disorder and Panic Disorder With Agoraphobia. (Tr. at 18, 240­
242,434-437).
In the course of making his Step Two analysis, the ALl found that Plaintiffs
degenerative disc disease and joint disease of the knees were "severe" under the standards set
forth in 20 C.F.R. § 404.1 520(c) and further found Plaintiffs "depression" to be severe. The
ALl did not address in Step Two Plaintiffs claim of Panic Disorder With Agoraphobia, either to
find the condition was severe or non-severe. Further, while finding Plaintiffs "depression" to be
severe, the ALl failed to address in Step Two the more involved features and mental disorders
which make up the diagnosis of Dysthymic Disorder. Diagnostic and Statistical Manual of

Mental Disorders ("DSM IV") 300.4 at 345-350 (1994).
The ALl, as part of his Step Four analysis ofRFC, made a passing reference to the
Plaintiffs diagnoses of "dysthymic disorder and panic disorder" by Dr. James Ruffing, a
consulting and examining psychologist. (Tr. at 19). No reference was made by the ALJ to the
diagnosis of "Panic Disorder With Agoraphobia" made by Dr. Ruffing. 1 Instead, the ALl found
that Plaintiff was "fully oriented", had a "functioning" memory and was capable of performing
"simple repetitive tasks" even though the patient "appeared impaired due to her emotional state."
(Tr. at 19). The ALJ omitted to include Dr. Ruffing's finding that the Plaintiff "appears to have

Under DSM IV, there are separate diagnoses of "Panic Disorder Without Agoraphobia"
(300.01) and "Panic Disorder With Agoraphobia" (300.21). The presence of Panic Disorder
With Agoraphobia obviously contains potentially complicating features that can impact a
patient's ability to engage in gainful employment that might not be present with the presentation
of a panic disorder alone. See, DSM IV at 396-403.
J

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emotional instability" and failed to address at any step in the disability assessment process any
aspect of social functioning difficulties commonly associated with agoraphobia.
Similarly, the ALJ failed to address at any step in the disability assessment process the
various diagnostic criteria and Plaintiffs symptoms associated with Dysthymic Disorder, which
include the combination of depression with such additional conditions as insomnia, poor
appetite, low energy and feelings of hopelessness. DSM IV at 349. One of the diagnostic
criteria for Dysthymic Disorder is that the "symptoms cause clinically significant distress or
impairment in social, occupational, or other important areas of functioning." [d. Further, the ALJ
failed to mention Plaintiff s October 2006 admission to Spartanburg Regional Medical Center for
chronic and worsening depression, which included documentation of insomnia, suicidal ideation,
poor appetite and lack of responsiveness to multiple anti-depression medications. (Tr. 350-351).
The ALJ, in a classic case of factual "cherry picking", referred to treatment of Plaintiff for
depression during the period October 2006-0ctober 2007 at St. Luke's Free Medical Clinic as
indicating that the patient "was doing 'OK' on medication." (Tr. 19). In fact, the records are
replete with such statements as "profound depression", "severe depression", "wants to sleep all
the time" and "refer to Mental Health Center as soon as possible." (Tr. at 391, 399- 403)
(emphasis in the original).
Plaintiff testified at the administrative hearing before the ALJ that she was "miserable"
and that there are days she does not get out of bed, answer the phone or the door. (Tr. 473,483).
She explained, "I don't want to be around nobody" and seldom has company. (Tr. 483,486).
Further, she describes herself as crying frequently "for no reason at all." (Tr. 473). The ALJ
found that Plaintiffs medically determinable impairments could reasonably be expected to

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produce the symptoms she described and found her statements concerning the intensity,
persistence and limiting effects of the symptoms "not credible prior to March 18,2007 ...." (Tr.
at 18). The ALJ further noted that "[t]here is no indication in the medical evidence of record that
the claimant reported the frequency, severity and limitations [to which] she testified to any
treating or examining physician." (Tr. at 19).
In fact, the Plaintiffs medical record is replete with statements to providers similar to her
hearing testimony. These include statements to Dr. Ruffing in May 2005 that supported his
diagnoses of Panic Disorder With Agoraphobia and Dsythymic Disorder, including references to
"crying spells, feeling worthless, hopeless and helpless" (Tr. at 241); statements to her treating
physician, Dr. Padgett, in February 2005 that she was "nervous and anxious and crying
frequently" (Tr. at 255); statements to Dr. Robert Jackson in October 2006 that she had
increasing depression for the prior four months, insomnia, suicidal ideation and poor appetite;
and statements to providers at the 81. Luke's Free Medical Clinic in January 2007 that she was
"crying and wants to sleep all the time" and has "[no] energy". (Tr. at 399).
The ALJ concluded that Plaintiff had the RFC to do sedentary work so long as she was
limited to "simple, unskilled, repetitive type work ...." (Tr. at 17). The ALJ further found that
Plaintiff could not perform her former work as a receptionist and textile machine operator and
she was automatically disabled upon her 50th birthday on March 18, 2007 on the basis of the
provisions of 20 C.F.R. § 404.1560(c) and 404.1566. However, the ALJ concluded for the time
period extending from the Plaintiff discontinuing work on July 16,2004 until March 17, 2007,
she was not disabled. The ALJ decision ultimately became the final decision of the
Commissioner, and Plaintiff timely sought judicial review of the denial of disability benefits to
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this Court.
Analysis
The Commissioner's decision fails to address relevant medical opinions and medical
evidence in the record, make essential findings as to the weight accorded probative evidence in
conflict with his conclusions and disclose any substantive basis for his finding that the Plaintiff's
subjective complaints were not credible. First, the ALJ does not address at Step Two Dr.
Ruffing's diagnosis of Panic Disorder With Agoraphobia. Thus, there is no determination
whether this condition is severe or non-severe. The ALJ does make a passing mention at Step
Four of Dr. Ruffing's diagnosis of panic disorder, but fails here or anywhere else in the decision
to refer to the diagnosis of agoraphobia and its potential impact on Plaintiffs ability to perform
work. The ALJ's failure to address in the decision the medical diagnosis of Panic Disorder With
Agoraphobia, weigh the opinions on the subject offered by Dr. Ruffing, an examining consultant
psychologist, and assess this impairment's impact on the Plaintiff's RFC all constitute error
mandating reversal and remand. 20 C.F.R. §§ 404.1 520(a)(4)(ii) and (c), 1527(b), 1545. Had the
ALl assessed and determined Plaintiff's Panic Disorder With Agoraphobia was a severe
impairment, it would have then been necessary to assess the impact of that finding at each
subsequent step of the disability evaluation process. This process of assessing and weighing the
evidence in the record is the responsibility of the Commissioner and not this Court.
Second, the ALJ at Step Two found Plaintiffs "depression" to be a severe condition, but
did not address at this step Dr. Ruffing's diagnosis of Dysthymic Disorder. According to the
criteria set forth in the DSM IV, Dysthymic Disorder is a mood disorder that includes "depressed
mood" plus two or more additional features or mental disorders. DSM IV 300.4 at 346-349. The

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ALJ erred in failing to analyze and weigh Dr. Ruffing's diagnosis of Dysthymic Disorder at Step
Two and determine whether it was a severe or non-severe impairment. Again, if Plaintiffs
Dysthymic Disorder had been determined to be a severe impairment, further assessment of this
condition would have been necessary at subsequent steps in the disability evaluation. The failure
of the ALJ to address and weigh Dr. Ruffing's medical opinion of Dysthymic Disorder at Step
Two requires reversal and remand. §§ 1520(a)(4)(ii) and (c), 1527(b), 1545.
Third, the ALJ failed to address the Plaintiffs October 2006 hospital admission for
chronic depression, which included findings of insomnia, poor appetite, worsening depression
symptoms and suicidal ideation. (Tr. 350-360). These findings were consistent with Dr.
Ruffing's overlooked diagnoses and relevant to the ALJ's analysis at Steps Two, Three, Four and
Five. Further, the ALJ's review of the S1. Luke's Free Medical Clinic records during 2006 and
2007 omitted some of the most relevant findings and opinions, including descriptions of
Plaintiffs depression as "severe" and "profound", reports of excessive sleep, absence of energy
and crying, and instructions to refer Plaintiff to the Mental Health Center "as soon as possible."
(Tr. 391,399-403). The ALJ's failure to assess, analyze and weigh this evidence requires
reversal and remand. §§ 1527, 1545.
Fourth, the ALJ found that Plaintiffs SUbjective complaints regarding her impairments
were not credible "prior to March 18, 2007 to the extent inconsistent with the residual functional
capacity assessment ...." (Tr. 18). The ALJ further noted there was "no indication in the
medical evidence of record that the claimant reported the frequency, severity and limitations [to
which] she testified to any treating or examining physician." (Tr. 19). The ALJ's conclusory
statements regarding Plaintiffs credibility are insufficient to satisfY the requirement of "specific
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reasons for the finding of credibility, supported by the evidence in the case record" with
sufficient specificity to allow for subsequent judicial review. SSR 96-7P. Further, the ALl's
finding that there is "no indication in the medical evidence of record" that the Plaintiff reported
the severity of her mental health impairments to treating or examining providers is not supported
by substantial evidence in the record. To the contrary, the record documents multiple entries in
the medical record indicating that Plaintiff reported significant symptoms of her mood and panic
disorders to Dr. Ruffing in May 2005, her treating family physician, Dr. Padgett, in February
2006, to Dr. Robert Jackson at Spartanburg Regional Medical Center in October 2006, and to
providers at the St. Lukes Free Medical Clinic in 2006 and 2007. (Tr. 240-242, 255, 350-351,
399-403).
Conclusion
Based on the foregoing, the Court hereby reverses that portion of the Commissioner's
decision denying disability insurance benefits to Plaintiff for the period from July 16, 2004 to
March 17,2007, pursuant to sentence four of 42 U.S.C. § 405(g), and remands the matter to the
Commissioner for further action consistent with this Order.
AND IT IS SO ORDERED.

Ricliard Mark Gergel
United States District Court Judge

October~2011
Charleston, South Carolina
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