Bailey v. Commissioner of Social Security Administration

Filing 20

ORDER re 1 Complaint - Social Security, filed by Terry Shumpert Bailey. It is ordered that the Commissioner's decision be reversed and remanded under sentence four of 42 U.S.C. § 405(g) to the Commissioner for further proceedings. Signed by Magistrate Judge Bruce Howe Hendricks on 11/22/2011. (jbry, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Terry Shumpert Bailey,

)
)
Plaintiff, )
)
vs.
)
)
Michael J. Astrue,
)
Commissioner of Social Security,
)
)
Defendant. )
_____________________________ )

Civil Action No. 2:10-2172-BHH

ORDER

In accordance with the provisions of 28 U.S.C. 636(c); Fed. R. Civ. P. 73; and D.S.C.
Local Rule 73.02(B)(1) the parties in this case have consented to have a United States
Magistrate Judge conduct all proceedings in this case. Based upon this consent, the case was
referred to the undersigned for final disposition by Order of the Honorable Cameron McGowan
Currie, United States District Judge, filed Aril 23, 2010.

The plaintiff, Terry Shumpert Bailey, brought this action pursuant to Section 205(g)
of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review
of a final decision of the Commissioner of Social Security Administration regarding her claim
for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
The plaintiff was 33 years old on August 31, 2000, her alleged onset date, and 38
years of age as of December 31, 2005, her date last insured. (R. at 139). The plaintiff
alleges she has been disabled August 31, 2000, due to arthritis, pinched nerve, numbness,
disc deterioration, and anxiety. (R. at 136-39, 157.) The plaintiff has a high school
education and past relevant work as an administrative assistant, cashier/cook, and
waitress/cook. (R. at 158.)
The plaintiff filed an application for DIB on August 4, 2007. (R. at 136-39, 157.) Her
application was denied initially and on reconsideration. (R. at 96-104, 107-109.) After a
hearing on December 21, 2009, the ALJ issued an unfavorable decision on January 22,

2010. (R. at 7-78.) The Appeals Council denied Plaintiff’s request for review, (R. at 1-4),
making the ALJ’s decision the Commissioner’s final decision for purposes of judicial review.
In making his determination that the plaintiff is not entitled to benefits, the
Commissioner has adopted the following findings of the administrative law judge:

(1)
The claimant meets the insured status requirements of
the Social Security Act on December 31, 2005.
(2)
The claimant did not engage in substantial gainful activity
during the period from her alleged onset date of August 31,
2000, through her date last insured of December 31, 2005 (20
CFR 404.1571 et seq.).
(3)
Through the date last insured, the claimant has the
following severe impairments: degenerative disc disease and
obesity (20 CFR 404.1520(c)).
(4)
Through the date last insured, the claimant did not have
an impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1525 and 404.1526).
(5)
After careful consideration of the entire record, I find that,
through the date last insured, the claimant had the following
residual functional capacity: she could not lift or carry over 20
pounds occasionally and 10 pounds frequently; she could only
occasionally stoop, twist, crouch, kneel, climb stairs or ramps,
crawl, or balance; and she could not climb ladders or scaffolds.
(6)
Through the date last insured, the claimant was able to
perform her past relevant work as a cook, waitress, cashier, and
sales clerk (20 CFR 404.1565).
(7)
The claimant was born on September 10, 1967 and was
38 years old, which is defined as a younger individual age 1849, on the date last insured (20 CFR 404.1563).
(8)
The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).
(9)
The claimant has acquired work skills from past relevant
work (20 CFR 404.1568).

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(10) Considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant had
acquired work skills from past relevant work that were
transferable to other occupations with jobs existing in significant
numbers in the national economy (20 CFR 404.1569,
404.1569(a), 404.1568(d)).
(11) The claimant was under a disability, as defined in the
Social Security Act, at any time from August 31, 2000, the
alleged onset date, through December 31, 2005, the date last
insured (20 CFR. 404.1520(g)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
“disability.” 42 U.S.C. §423(a). “Disability” is defined in 42 U.S.C. §423(d)(1)(A) as:
the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for at least 12 consecutive
months.
42 U.S.C. §423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by
regulation reduced the statutory definition of “disability” to a series of five sequential
questions. An examiner must consider whether the claimant (1) is engaged in substantial
gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness
contained in the Social Security Administration’s Official Listings of Impairments found at
20 C.F.R. Part 4, Subpart P, App. 1, (4) has an impairment which prevents past relevant
work, and (5) has an impairment which prevents him from doing substantial gainful
employment. See 20 C.F.R. §404.1520. If an individual is found not disabled at any step,
further inquiry is unnecessary. See Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if he can return to past
relevant work as it is customarily performed in the economy or as the claimant actually
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performed the work. Social Security Ruling (“SSR”) 82–62. The plaintiff bears the burden
of establishing his inability to work within the meaning of the Act. 42 U.S.C. §423(d)(5). He
must make a prima facie showing of disability by showing he is unable to return to his past
relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
Once an individual has established an inability to return to his past relevant work, the
burden is on the Commissioner to come forward with evidence that the plaintiff can perform
alternative work and that such work exists in the regional economy. The Commissioner may
carry the burden of demonstrating the existence of jobs available in the national economy
which the plaintiff can perform despite the existence of impairments which prevent the return
to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly
tailored to determine whether the findings of the Commissioner are supported by substantial
evidence and whether the correct law was applied. Richardson v. Perales, 402 U.S. 389
(1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Consequently, the Act
precludes a de novo review of the evidence and requires the court to uphold the
Commissioner’s decision as long as it is supported by substantial evidence. See Pyles v.
Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th
Cir. 1986)). The phrase “supported by substantial evidence” is defined as:
evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a mere
scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is “substantial
evidence.”
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966). Thus, it is the duty of this court to
give careful scrutiny to the whole record to assure that there is a sound foundation for the
Commissioner’s findings, and that her conclusion is rational. Thomas v. Celebrezze, 331
F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the

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Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775
(4th Cir. 1972).
DISCUSSION
The plaintiff makes only one objection to the administrative decision. She contends
that the ALJ erred in failing to find her disabled insofar as the ALJ did not give the opinion
of her treating physician controlling weight.
I.

Treating Physician
The plaintiff contends that the ALJ failed to properly consider the opinions of her

treating physician, Dr. William Dacus. Specifically, the plaintiff complains that the ALJ,
without explanation, essentially adopted the opinion of Dr. Dacus except for his
recommendation that the plaintiff could stand/walk less than two hours in an eight-hour day.
On September 4, 2009, Dr. Dacus completed an impairment questionnaire. He
opined that, since at least December 31, 2005,1 the plaintiff could stand/walk less than two
hours in an eight-hour workday and for one hour at a time; sit about four hours in an
eight-hour workday and for one hour at a time; walk only one block at a time; rarely twist,
stoop, crouch, squat, and climb ladders; never climb ladders; and lift up to 10 pounds
frequently and 20 pounds occasionally. (R. at 372-73.) He stated that the plaintiff would
miss more than four days of work per month, could not perform normal work activities in a
competitive environment that would require her to stand, walk, or six hours a day. (R. at
373.) Dr. Dacus stated he believed that the plaintiff’s chronic back pain and anxiety
rendered her disabled since at least December 31, 2005. (R. at 374.)
As the plaintiff claims, less the stand/walk restriction, this assessment is essentially
identical to the residual functional capacity (RFC) eventually adopted by the ALJ,
notwithstanding his ultimate and purported decision to have only given “less weight to the
assessment of Dr. Dacus.” (See R. at 16 (RFC also quoted, herein, supra at 2).)

1

This is the date through which the plaintiff was last insured for purposes of her
benefits.
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The medical opinion of a treating physician is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record.

See 20 C.F.R.

§416.927(d)(2)(2004); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).

A “medical

opinion,” is a “judgment[] about the nature and severity of [the claimant's] impairment(s),
including [his] symptoms, diagnosis and prognosis, what [he] can still do despite
impairment(s), and [his] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2). However, statements that a patient is “disabled” or “unable to work” or meets
the Listing requirements or similar statements are not medical opinions.

These are

administrative findings reserved for the Commissioner’s determination. SSR 96-2p. Even
if a treating physician's opinion is not entitled to “controlling weight,” it is “still entitled to
deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527.”
SSR 96-2p.
As indicated, Dr. Dacus stated that the plaintiff was disabled on the date last insured
and supported that contention by indicating that she had functional limitations regarding her
ability to sit and stand. (R. at 372-74.) The ALJ thoroughly recounted much of Dr. Dacus’
treatment notes (R. at 13-15) but ultimately rejected his opinions because he found that they
were not consistent with the doctor’s own progress notes (R. at 16). The ALJ found that the
medical records, prior to December 31, 2005, indicated that the plaintiff received only
routine medical treatment for hypertension, diabetes, anxiety, ingrown toenails headaches,
and musculoskeletal complaints. (R. at 16, 211-60.) In June 2000, two months before her
August 2000 alleged onset date, the plaintiff reported that she was “feeling pretty good and
having no problems.” Id. On June 28, 2000, the plaintiff received treatment for an ingrown
toenail (R. at 239) and that was the only problem the plaintiff reported on July 31, 2000,
which made it difficult for her to wear shoes over the previous two days (R. at 238). The
ALJ emphasized that numerous examinations “up through the claimant’s date last insured

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and well after her date last insured showed normal range of motion, strength, and tone,
motor and sensory function, reflexes, gait, and coordination.” (R. at 16.)
There are two problems. First, the plaintiff has identified treatment notes consistent
with Dr. Dacus’ disability opinion, prior to December 31, 2005.
1. The plaintiff had “chronic back spasms” for which she had
been taking Soma (1/2/04) and back pain that radiated into her
right leg along with muscle spasms noted by the provider
(3/16/04). (R. at 248.)
2. Office visit record from Dr. Dacus dated April 27, 2005, with
a diagnosis of low back pain. (R. at 339.)
3. Office visit record from Dr. Dacus dated May 3, 2005, noting
back pain radiating into the buttocks. (R. at 337.) Records
reflect ongoing back pain for approximately two years before
the date last insured.
4. Office note of January 19, 2006, from Dr. Dacus finding
chronic back pain that was “constant, severe, and throbbing”
and for which the plaintiff “has not found anything that helps
relieve the pain.” (R. at 333.) This office note is for a visit a
nineteen days after the date last insured and the references to
chronic back pain, in light of the similar complaints made in
2004 and 2005 discussed above, seem to reflect an ongoing
and chronic condition that predates the date last insured of
December 31, 2005.
5. Other documentation of a continuation of the chronic back
pain through out 2006 by way of the office note records of Dr.
Dacus potentially corroborative of chronic and ongoing back
problems existing prior to the date las insured. (R. at 297, 30304, 332, 326, 323.)
The ALJ’s decision is not cursory. It is, in a relative sense, thorough. And, the Court
typically cautions that it is not enough simply that the plaintiff can produce conflicting
evidence, which might have resulted in a contrary interpretation, so long as the ALJ has
identified substantial evidence in support. See Blalock, 483 F.2d at 775. Here, however, the
ALJ has largely declined the opinion of Dr. Dacus for the absence of corroborative evidence
in the doctor’s treatment notes. To the extent the plaintiff has identified some such notes,
it raises concerns over the substantialness of the ALJ’s view in this respect.

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Additionally, and concerning the second problem with the treating physician
determination, the ALJ does not seem to justify the implicit rejection of the walk/stand
limitation, where other restrictions, recommended by Dr. Dacus, were, in fact, adopted. In
the one instance, the ALJ makes a kind of blanket rejection of the opinion and, in the next,
he is adopting it nearly in toto. (See R. at 16.) Between the two decisional points, there
lacks any explanation as to why the evidence in support of an ability to stand/walk for no
more two hours, in eight, is somehow, specifically, not worthy of credence. The ALJ does
later, and exhaustively, recount the plaintiff’s testimony as to daily activities and then, in a
fairly summary fashion, find them not fully consistent with the medical records. But, the ALJ
does not suggest precisely why the testimony of daily activities is incredible or, more to the
issue here, explain how her testimony may have been somehow out of step with Dr. Dacus’
opinion, such that his opinion was also worthy of disbelief; in fact, the two accounts, of the
plaintiff and Dacus, appear largely congruent. (See R. at 17-18.)
An ALJ is not required to provide a written evaluation of every piece of evidence, but
needs to at least “minimally articulate” his reasoning so as to “make a bridge” between the
evidence and his conclusions. Fischer v. Barnhart, 129 Fed. Appx. 297, 303 (7th Cir. 2005)
(citing Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir.2004)); see also Craig v. Apfel, 212 F.3d
433, 436 (8th Cir. 2000) (“ALJ is not required to discuss all the evidence submitted, and an
ALJ’s failure to cite specific evidence does not indicate that it was not considered”) (citations
omitted). Even still, courts have consistently held that unexplained and rote observations
that a treating physician’s opinion is simply inconsistent with treatment notes is not a
sufficient basis to reduce the opinion’s weight. See Cagle v. Astrue, 266 Fed. Appx. 788,
(10th Cir. 2008) (stating “the ALJ failed to explain or identify what the claimed
inconsistencies were between [the treating physician's] opinion and the other substantial
evidence in the record,” and concluded that the ALJ's reasoning was not “sufficiently specific
to enable this court to meaningfully review his findings” (quotations omitted).); Langley v.
Barnhart, 373 F.3d 1116, 1122 (10th Cir.2004). The ALJ’s decision is not rote. It is,
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however, too generalized, in light of the ultimate RFC finding, for the Court to understand,
and attempt to affirm, the ALJ’s partial rejection of Dr. Dacus’ opinion as to walk/stand
restrictions but not others.
The matter is a material one because the plaintiff almost certainly cannot perform the
required level of her past relevant work as concluded by the plaintiff if the stand/walk
restriction is present. See SSR 96-9p; 20 C.F.R. § 404.1567(a), (b); (R. at 18, 19).
Because the ALJ’s adoption of some but not all of Dr. Ducas’ opinion was largely
unexplained, it cannot be said that the determination is based on substantial evidence.
Contrary to the ALJ’s assertion, there appear treatment records that support it. It is a close
call, but the Court would decline to make an outright award of benefits. The undersigned
is nearly inclined to do so. But, the evidence emphasized by the plaintiff concerning the
walk/stand restriction may not be as strong as alleged.

The Court is always more

comfortable allowing evidence to be considered and explained by the ALJs, in the first
instance, which is their province. It is enough, for remand, that there is an explanatory hole
in the analysis, which must be shored before review is possible.
CONCLUSION
Based upon the foregoing, the Court cannot conclude that the ALJ' s decision to deny
benefits was supported by substantial evidence. It is, therefore, ORDERED, for the
foregoing reasons, that the Commissioner’s decision be reversed and remanded under
sentence four of 42 U.S.C. § 405(g) to the Commissioner for further proceedings as set forth
above. See Melkonyan v. Sullivan, 501 U.S. 89 (1991).
IT IS SO ORDERED.
s/BRUCE H. HENDRICKS
UNITED STATES MAGISTRATE JUDGE
November 22, 2011
Greenville, South Carolina

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