Harris v. Commissioner of Social Security Administration

Filing 34

ORDER adopting 27 Report and Recommendation and affirming the Commissioner's decision denying benefits. Signed by Honorable David C Norton on 9/27/12.(gcle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
LOUIS KEITH HARRIS,

)
)
Plaintiff,
)
)
vs.
)
)
)
MICHAEL J. ASTRUE, COMMISSIONER )
OF SOCIAL SECURITY,
)
)
Defendant.
)
)

No. 2:11-cv-01590-DCN

ORDER

This matter is before the court on the magistrate judge’s Report and
Recommendation (R&R) that this court affirm the Administrative Law Judge’s (ALJ)
decision denying plaintiff’s applications for disability insurance benefits (DIB) and
supplemental security income (SSI). Plaintiff filed objections to the R&R. For the
reasons set forth below, the court adopts the R&R and affirms the ALJ’s decision.
I. BACKGROUND
Plaintiff Louis Keith Harris filed for DIB and SSI on April 3, 2003, alleging
disability since October 30, 2002 due to pain, numbness, thoracic outlet syndrome,
irritable bowel syndrome, and stiffness in his arms, hands, and fingers. Tr. 13, 47-49, 59,
199, 207. His applications were denied initially and upon reconsideration. Tr. 13. Harris
filed a timely request for a hearing, which was held on November 28, 2005. Id. On June
29, 2006, the ALJ issued a decision finding Harris not disabled. Tr. 13-22.
In reaching this decision, the ALJ employed a five-step sequential evaluation
process to determine whether Harris was “disabled” within the meaning of the Social

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Security Regulations.1 See 20 C.F.R. §§ 404.1520, 416.920. The sequential process
requires the ALJ to examine whether the claimant: (1) is engaging in substantial gainful
activity; (2) has a “severe impairment”; (3) has an impairment that meets the criteria
listed in 20 C.F.R. part 404, subpart P, appendix 1; (4) has the residual functional
capacity (RFC) to perform past relevant work; and (5) can perform any other work based
on vocational factors that include RFC, age, education, and work experience. See 20
C.F.R. § 404.1520(a)(4); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
The Appeals Council denied review, rendering the ALJ’s decision that of the
Commissioner. Tr. 5-7. Harris then filed a civil action seeking review of the ALJ’s
decision. Tr. 276. Magistrate Judge Bruce Howe Hendricks issued an R&R on February
6, 2008, recommending that the decision denying Harris’s claim be reversed and
remanded based on the ALJ’s failure to adequately apply the framework for assessing
complaints of pain set forth in Craig v. Chater, 76 F.3d 585 (4th Cir. 1996). Tr. 287-91.
On March 10, 2008, this court adopted the R&R and remanded the case pursuant to
sentence four of 42 U.S.C § 405(g) for further administrative proceedings. Tr. 274-75.
After a second administrative hearing was held, the ALJ issued a decision on July
18, 2008 finding Harris not disabled. Tr. 254-66. On appeal, Magistrate Judge
Hendricks issued an order2 on March 11, 2010, reversing the ALJ’s decision and
remanding the case for a second time pursuant to sentence four of 42 U.S.C. § 405(g).
Tr. 400-11. The magistrate judge found that the ALJ again failed to adhere to the review
process outlined in Craig, as the “[ALJ’s] second decision ultimately appear[ed] no more
“Disability” is defined 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 a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
2
The parties consented to a magistrate judge entering an order of judgment in the case. Tr. 400.
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compliant than the first.” Mag. Order, Mar. 11, 2010, at 9-10; Tr. 408-09. The
magistrate judge wrote,
On remand, therefore, the defendant is ORDERED to ensure that only the
plaintiff’s credibility is considered in light of this Court’s instruction
concerning Craig. The defendant, of course, is permitted to pursue any
issues implicated or affected by that renewed determination, to wit, the
plaintiff’s residual functional capacity. Both parties are tasked with
advocating on behalf of the mandate of this Order. To the extent the
matter returns under circumstances where the mandate of this Order has
been disregarded and there is evidence that the plaintiff did not champion
it, the Court may affirm the decision of the ALJ, even where it might
otherwise have been inclined to find continuing legal error.
Mag. Order, Mar. 11, 2010, at 11; Tr. 410. On May 12, 2010, the Appeals Council
vacated the second ALJ decision and remanded the case for further administrative
proceedings. Tr. 412-14. The Appeals Council instructed the ALJ to limit review of the
case to “application of the first step in the evaluation of the claimant’s pain.” Tr. 361.
On November 9, 2010, Harris testified in a third administrative hearing. Tr. 45988. The ALJ then issued a decision on December 9, 2010 finding Harris not disabled.
Tr. 360-74. At the first step of the sequential analysis, the ALJ found that Harris had not
engaged in substantial gainful activity since the alleged onset date of October 30, 2002.
Tr. 363. Second, the ALJ found that Harris had the following severe impairments:
degenerative disc disease, thoracic outlet syndrome, and carpal tunnel syndrome. Id. At
the third step, the ALJ determined that Harris’s severe impairments did not rise to the
level of an impairment or combination of impairments that met or medically equaled one
of the listed impairments found at 20 C.F.R. part 404, subpart P, appendix 1. Id. At steps
four and five, the ALJ found that Harris was unable to perform past relevant work but
had the RFC to perform a range of sedentary work with certain limitations. Tr. 363-64,
372. The ALJ also found that Harris’s “medically determinable impairments could be
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expected to produce some pain but could not reasonably be expected to cause the type
and severity of symptoms alleged.” Tr. 365. Ultimately, considering Harris’s vocational
factors, the ALJ determined that Harris could perform jobs existing in significant
numbers in the national economy and found Harris not disabled. Tr. 373-74.
The Appeals Council denied review and Harris filed another civil action. Tr. 34244. On June 20, 2012, Magistrate Judge Hendricks issued an R&R recommending that
the ALJ’s December 9, 2010 decision be affirmed. See Mag. R&R, June 20, 2012, at 8.
Harris filed objections on July 23, 2012.
Harris has a high school education and previous work experience as a truck driver
and electrician’s helper. Tr. 215, 326. He states that he last worked in October 2002 and
left his job because of neck pain. Tr. 219. On August 8, 2002, Harris saw Dr. Douglas E.
Holford, an orthopedist, for complaints of pain radiating down his shoulders, chest, and
arms. Tr. 127, 258. An MRI found mild central disc bulging at C5-6 but no direct
impingement. Tr. 126. On November 4, 2002, Dr. Holford performed a C5-6
discectomy with fusion and plating. Tr. 122. Following the surgery, a cervical spine
MRI performed on May 12, 2003 returned unremarkable results, showing wellmaintained disc spaces and no indication of cervical disc herniation. See Tr. 155-56.
Harris continued to complain of parasthesias in early 2003. Tr. 119-20.
Electrodiagnostic studies indicated thoracic outlet syndrome and carpal tunnel syndrome,
and Harris was referred to Dr. Jack Ratliff for treatment. Tr. 111, 116-18. Harris
underwent physical therapy but, in April 2003, still had complaints of pain. Tr. 163. Dr.
Holford reported that Harris’s physical therapy with a TENS unit “seemed to help.” Tr.

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158. Harris completed physical therapy on May 14, 2004 and achieved two of his four
short term goals but none of his long term goals. Tr. 144.
On July 21, 2003, Dr. Ratliff performed a left rib resection on Harris in an attempt
to alleviate pain caused by thoracic outlet syndrome. Tr. 139-40, 163. Following the
surgery, Dr. Ratliff noted that the operation “seemed to go very well technically” but that
Harris complained of little improvement in his level of pain. Tr. 160. As a result, Dr.
Ratliff found that a right rib resection would not be practical. Id.
Dr. Richard A. Eisenberg, a neurologist, performed a one-time evaluation on
February 14, 2004. Tr. 224. Harris told Dr. Eisenberg that he continued to suffer from
persisting neck and upper extremity pain. Tr. 164. Dr. Eisenberg opined that Harris was
“completely disabled from his previous job as a truck driver” and “has persistent pain
[that] may interfere even with sedentary activities.” Id. Still, Dr. Eisenberg found that
Harris could “move upper and lower extremities strongly against resistance.” Id.
Beginning in January 2005, Harris was treated by Dr. Kimberly Lewis, a
chiropractor. Tr. 180, 198. Dr. Lewis treated Harris twice a week for several months.
Tr. 223. Harris stated that the alignments and adjustments helped his back and neck “for
short periods, but not long.” Id. In August 2005, Dr. Lewis filled out a Clinical
Assessment of Pain, indicating that Harris’s pain was “profound and intractable” and
“virtually incapacitates this individual.” Tr. 177.
Beginning in August 2006, Harris visited the Free Medical Clinic of Aiken
County. He primarily complained of irritable bowel syndrome, carpel tunnel syndrome,
neck, back, and hand pain, and numbness, but also mentioned tiredness, depression,
allergies, and negative side effects from medications. Tr. 304-10. Although pain

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medications were available through the clinic, Harris admitted in 2009 that he also took
“street drugs” for pain relief. Tr. 449. On July 1, 2008, Harris began treatment at the
Community Medical Clinic of Aiken County and complained of pain and other stressors.
Tr. 450-51.
In July 2010, Dr. Eric Schleuter, a physician at the Margaret J. West Community
Health Center, completed a Physical Capacities Evaluation Form and indicated serious
limitations in Harris’s ability to sit, stand, and walk in an eight hour workday, as well as
in other activities. Tr. 457-58. Despite beginning a treatment relationship with Harris in
2009, Dr. Schleuter opined that Harris’s limitations began in 2000. Tr. 371.
The third ALJ decision denying benefits was issued on December 9, 2010. Dr.
Holford provided a Physical Capacities Evaluation Form dated August 16, 2011 and a
letter dated August 29, 2011. In the letter, Dr. Holford states that Harris “had an
operation on November 4, 2002, at that time he started having the restrictions placed
upon him[, and h]e never recovered significantly from the surgery.” Pl.’s Br. Ex. A.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270-71 (1976).

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Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). “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). In other words, “[i]t means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal quotation marks omitted). “[I]t is not within the province of a
reviewing court to determine the weight of the evidence, nor is it the court’s function to
substitute its judgment for that of the [Commissioner] if his decision is supported by
substantial evidence.” Hays, 907 F.2d at 1456.
III. DISCUSSION
Harris objects to the magistrate judge’s R&R on two grounds. First, he argues
that it was “fundamentally unfair” for the magistrate judge to restrict the scope of the
third administrative hearing “from a point frozen in time” by excluding new opinion
evidence offered after the second ALJ decision. Pl.’s Obj. 1-2. Harris asks the court to
consider whether the new evidence offered before and after the supplemental hearing
bolsters Harris’s credibility. Id. at 3. Second, Harris argues that the ALJ’s findings
regarding his complaints of pain are still in error and are not supported by substantial
evidence. Id. at 3-4. The court takes these objections in turn.
A. Consideration of New Evidence
Harris first objects that the magistrate judge unfairly limited the scope of remand.
On remand, the ALJ considered new evidence presented prior to and during the

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supplemental hearing. During the hearing, Harris’s attorney broadly asked Harris, “Since
[the second administrative hearing], . . . what would you -- how would you summarize
how your symptoms and conditions ha[ve] progressed since that time?” Tr. 465. Harris
testified that since his last hearing, he had more pain in his chest, back, neck, and arms.
See Pl.’s Br. 20. At the conclusion of the hearing, the ALJ stated, “I’m going to consider
all that you’ve told me. I’ve got more medical evidence. I’ve already reviewed that, but
I’m going to go back and re-review in light of what you’ve told me today.” Tr. 487. This
additional evidence included the Physical Capacities Evaluation Form prepared by Dr.
Schleuter on July 2, 2010. See Tr. 463. The ALJ’s decision on December 9, 2010
recounts Harris’s continuing medical treatment and his testimony at the supplemental
hearing. See Tr. 364 (discussing Harris’s testimony “at the most recent hearing”); Tr.
367-68 (discussing Harris’s visits to the Free Medical Clinic of Aiken County and
Margaret J. Weston Community Health Center in 2009). It also provides a detailed
analysis of the July 2, 2010 Physical Capacities Evaluation Form prepared by Dr.
Schleuter and gives specific reasons for his assessment of that form. Tr. 371.
In turn, the magistrate judge relied on evidence dated after the second remand.
See Mag. R&R, June 20, 2012, at 7 (citing Tr. 443, 448 (patient encounter forms from
March and April of 2010 at the Community Medical Clinic of Aiken County)). The court
finds that the evidence of Harris’s alleged disability was appropriately taken into
consideration by the ALJ and magistrate judge. Moreover, it was within the magistrate
judge’s inherent authority to restrict the scope of remand. Finally, although Harris could
not have objected to the scope of Judge Hendricks’ March 11, 2010 remand order, he
could have voiced his concerns in the brief filed with this court on January 23, 2012

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rather than in objection to the magistrate judge’s most recent R&R. See Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections
to the magistrate judge’s recommendation are deemed waived.”).
Harris presents further medical evidence—a Physical Capacities Evaluation Form
prepared by Dr. Holford on August 16, 2011and a letter from Dr. Holford dated August
29, 2011—as an attachment to his January 2012 brief. See Pl.’s Br. Ex. A. Harris asks
the court to “consider this evidence in adjudicating [his] appeal.” Id. at 35. Assuming
arguendo that this evidence falls within Magistrate Judge Hendricks’ dictate to the parties
to only pursue issues implicated by the ALJ’s most recent credibility determination, the
court notes that it cannot weigh the evidence provided by Harris; it is the duty of an ALJ
to make findings of fact and credibility determinations and resolve conflicts in the
evidence. Hays, 907 F.3d at 1456. Instead, the court can decide whether to remand
under sentence six of 42 U.S.C. § 405(g) on the basis of newly discovered evidence so
long as four prerequisites are met. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985).
The court need not engage in a detailed analysis of these factors because Harris
has not shown good cause for consideration of a report obtained eight years after Dr.
Holford treated Harris. Although Harris cites an inability to afford subsequent treatment,
Harris’s attorney notes that last year, Dr. Holford told Harris he would see him at little or
no cost. Pl.’s Br. 12-13 n.1. If Dr. Holford was willing to see Harris on a reduced fee
basis in 2011, the court finds no reason why he would not have done so prior to the ALJ’s
December 9, 2010 opinion or Appeals Council’s May 12, 2011 denial of review, had
Harris asked.

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For these reasons, the court finds that the limited scope of remand was not
“fundamentally unfair” and that a remand is not warranted on the basis of Harris’s new
evidence.
B. Credibility Analysis
Harris next objects to the magistrate judge’s finding that the ALJ’s credibility
analysis is in compliance with established law and supported by substantial evidence.
“[T]he determination of whether a person is disabled by pain or other symptoms is a twostep process.” Craig, 76 F.3d at 594; see SSR 96-7p. The first step requires a threshold
showing of objective evidence of a medical impairment that could reasonably be
expected to produce pain in the amount and degree alleged by the claimant. Id. The
focus is on objective evidence of a condition that could reasonably be expected to
produce the pain alleged rather than objective evidence of pain. Only after this threshold
obligation is met does the evaluation turn to the intensity and persistence of the
claimant’s pain and its effect on the claimant’s ability to work. Id. at 595.
Here, the ALJ made specific reference to his duty on remand to focus on the
application of the first prong of the Craig test, and then carried out that duty. At the first
step, he found that although the objective medical evidence of Harris’s impairments
could be expected to produce some pain, there was “very limited” objective evidentiary
support for pain the amount and degree alleged by Harris. Tr. 365, 368. The ALJ then
went on to provide specific reasons for discounting Harris’s subjective statements
regarding the intensity and persistence of that alleged pain. See Tr. 365-69. While the
ALJ’s decision is not a model of clarity in that it sometimes blends steps one and two of

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the Craig framework, the court agrees with the magistrate judge that the ALJ applied the
controlling law and that his decision is supported by substantial evidence.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R
and AFFIRMS the Commissioner’s decision denying benefits.
AND IT IS SO ORDERED.

_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 27, 2012
Charleston, South Carolina

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