Cheney v. Commissioner of Social Security Administration

Filing 25

ORDER RULING ON 20 REPORT AND RECOMMENDATION. The Court affirms the Commissioner's decision. Signed by Honorable Timothy M Cain on 03/26/2014. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Debra Cheney,
Plaintiff,
vs.
Carolyn W. Colvin,1
Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 2:12-3366-TMC

ORDER

Plaintiff, Debra Cheney (“Cheney”), brought this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a final decision of the Commissioner of Social Security
(“Commissioner”) denying her claim for disability insurance benefits under the Social Security
Act (“SSA”). This matter is before the court for review of the Report and Recommendation
(“Report”) of the United States Magistrate Judge, made in accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of social
security cases in this district. (ECF No. 20).2 The Report recommends that the Commissioner’s
decision be reversed and remanded for further administrative action.
I. Background
Cheney filed an application for disability insurance benefits on January 28, 2009,
alleging that she became unable to work on December 8, 2008. Her application was denied
1

 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013.
Pursuant to Federal Rule of Civil Procedure 25(d), Colvin should be substituted for Michael J. Astrue as the
defendant in this action.

2

 The magistrate judge’s recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The
court is charged with making a de novo determination of those portions of the Report to which specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate
judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

initially and on reconsideration by the Social Security Administration. She requested a review by
an administrative law judge (“ALJ”), and an ALJ conducted a hearing on June 2, 2011. On July
27, 2011, the ALJ issued a decision, finding that Cheney was not disabled as defined in the SSA.
The ALJ found that Cheney suffered from a combination of severe impairments of fibromyalgia,
chronic pain syndrome, depression, obesity and cervical and lumbar degenerative disc disease.
The ALJ went on to find that Cheney’s impairments did not meet or medically equal the criteria
for any of the listed impairments. Accordingly, the ALJ proceeded to assess Cheney’s residual
functional capacity (“RFC”), finding that Cheney could perform a reduced range of light work.
The ALJ concluded that Cheney could not perform her past relevant work, but that she could
perform other jobs in existence in the national economy in significant numbers and, therefore,
denied her claim.
The Appeals Council declined to review the ALJ’s decision on September 28, 2012.
Cheney then filed this action for judicial review. The magistrate judge filed her Report on
December 31, 2013. (ECF No. 20). On January 17, 2014, the Commissioner filed objections to
the Report (ECF No. 22), and on February 3, 2014, Cheney filed a reply to those objections
(ECF No. 23). This matter is now ripe for review.
II. Standard of Review
The federal judiciary has a limited role in the administrative scheme established by the
SSA. 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 . . . 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
2

those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review,
the court may not “undertake to re-weigh conflicting evidence, make credibility determinations,
or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
However, “[f]rom this it does not follow . . . 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). Rather, “the 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.
III. Analysis
In her objections, the Commissioner contends that the magistrate judge erred by finding
that: 1) the ALJ did not conduct a proper credibility analysis; 2) the ALJ did not properly
consider Cheney’s impairments in combination; and 3) the ALJ did not properly consider the
medical opinions. The court addresses each objection in turn.
A) Credibility
In assessing credibility, the ALJ set forth a summary of Cheney’s testimony. The ALJ
then stated: “I note the majority of claimant’s complaints were in response to suggestive and
leading questioning, and many of her responses were prefaced by ‘to be honest.’ This type of
testimony did not inspire confidence in the assertions made.” (R. 27). The ALJ then set out the
seven factors found in Social Security Ruling (“SSR”) 96-7p, which are used in assessing
credibility. (R. 28). Finally, the ALJ noted that much of Cheney’s depression stems from her
situational problems with her family and her medical records support this conclusion and conflict
3

with her testimony at the hearing that her depression was caused by her physical impairments.
(R. 28).
The magistrate judge found that the ALJ’s reliance on Cheney being asked leading
questions was improper. (Report at 7). The magistrate judge then noted that she did not believe
that counsel asked Cheney leading questions. Id. Additionally, the magistrate judge found that
the ALJ overstated the number of times Cheney’s prefaced her answers with “to be honest” as
Cheney stated this only twice in 28 pages of testimony. Id. Further, the magistrate judge found
that while the ALJ listed the factors set forth in Social Security Ruling (“SSR”) 96-7p, there is
no indication in the decision that the ALJ considered these factors because the ALJ “added only
that [Cheney’s] problems at home played a major role in her depression. Id. Finally, the
magistrate judge stated that while there is evidence in the record supporting a finding that
Cheney’s depression is linked to her situational problems, the ALJ failed to draw a link from this
conclusion to his finding Cheney less than credible. (Report 9-10).
The Commissioner objects and contends that the ALJ may consider the style of
questioning and answering in assessing credibility. (Objections at 1). Further, the Commissioner
contends the ALJ also may consider the demeanor of a claimant, which would include the ALJ’s
consideration of Cheney’s statement “to be honest.” (Objections at 2). The Commissioner
contends an ALJ is not required to discuss each factor in SSR 96-7p and that testimonial
inconsistencies are probative in a credibility analysis. (Objections at 2-3).
In assessing a claimant's statement of pain and other symptoms, the ALJ applies a two
part process. 20 C.F.R. § 404.1529; Craig, 76 F.3d at 594. First, the ALJ must assess whether
there is a medically determinable physical impairment that could reasonably be expected to
produce claimant's symptoms. 20 C.F.R. § 404.1529(c)(1); Craig, 76 F.3d at 595. Second, the
4

ALJ must evaluate the intensity and persistence of the pain, as well as the extent to which the
claimant's symptoms and pain impact his or her ability to work. 20 C.F.R. § 404.1529(c)(1);
Craig, 76 F.3d at 595. The ALJ evaluates the intensity and persistence of the symptoms and the
extent to which they limit a claimant's capacity for work in light of all the available evidence,
including the objective medical evidence. 20 C.F.R. 404.1529(c). “Although a claimant's
allegations about her pain may not be discredited solely because they are not substantiated by
objective evidence of the pain itself or its severity, they need not be accepted to the extent they
are inconsistent with the available evidence, including objective evidence of the underlying
impairment, and the extent to which that impairment can reasonably be expected to cause the
pain the claimant alleges she suffers.” Hines v. Barnhart, 453 F.3d at 565 n. 3 (citing Craig, 76
F.3d at 595).
A reviewing court gives great weight to the ALJ's assessment of a claimant's credibility,
and should not interfere with that assessment where the evidence in the record supports the ALJ's
conclusions. See Shivley v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984). When considering
whether an ALJ's credibility determinations are supported by substantial evidence, the court does
not simply replace its own credibility assessments for those of the ALJ. Rather, the court must
scrutinize the evidence to determine if it is sufficient to support the ALJ's conclusions. In
reviewing the record for substantial evidence, the court does not re-weigh conflicting evidence,
reach independent determinations as to credibility, or substitute its own judgment for that of the
Commissioner. Hays v. Sullivan, 907 F.2d. 1453, 1456 (4th Cir. 1990). Because the ALJ had the
“opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's
observations concerning these questions are to be given great weight.” Shively v. Heckler, 739
F.2d 987, 989-990 (4th Cir.1984) (citing Tyler v. Weinberger, 409 F.Supp. 776 (E.D.Va. 1976)).
5

The Federal Rules of Evidence do not apply in social security hearings, and, therefore, as
the magistrate judge noted, leading questions are not objectionable. However, that does not
mean that an ALJ cannot consider that a claimant’s testimony was led by counsel. An ALJ may
consider that counsel was asked leading questions in assessing a claimant’s credibility because
leading may impact credibility. See Perry v. Soc. Sec. Admin., C/A No. 2:12-cv-168-JMH, 2013
WL 4101932 (E.D. Ky. Aug. 13, 2013)(holding the ALJ made a proper observation when he
inferred claimant was not entirely credible from the leading questions that claimant was asked);
Green v. Astrue, C/A No. 1:11-cv-522, 2012 WL 2620017, *10 (S.D. Ohio July 5, 2012)(holding
ALJ may consider whether claimant’s testimony was elicited by leading questions); McKinstry v.
Astrue, C/A No. 5:10-cv-319, 2012 WL 619112, * 7 (D.Vt. Feb. 23, 2012)(“Prompted testimony
may be subject to an adverse credibility inference.”); Burgos v. Astrue, 2011 WL 1642734
(S.D.N.Y. Apr. 29, 2011)(holding claimant’s testimony was not credible because he did not
mention back pain until prompted by counsel).
While it may not be erroneous to consider whether counsel asked leading questions,
considering the informality of these hearings before the ALJ, perhaps the better practice would
be for the ALJ to inform counsel during the hearing of his concerns regarding leading questions.
Moreover, in this case, because the ALJ himself acknowledged at the beginning of the hearing
that the hearing was an informal proceeding (R. 43), and never expressed any concerns over the
leading questioning, the ALJ should not have adversely considered such questioning when
assessing Cheney’s credibility. Furthermore, the ALJ was clearly erroneous when he noted that
“many” of Cheney’s responses were prefaced by “to be honest.” As the magistrate judge pointed
out, Cheney responded in this manner only twice. However, the court does not find these
considerations to be determinative of whether the ALJ erred in his credibility determination. The
6

ALJ did not base his entire credibility determination on whether counsel asked leading questions
or how her responses were prefaced by “to be honest.” He merely noted counsel asked leading
questions and her responses were prefaced by “to be honest.” The ALJ then preceded to analyze
Cheney’s credibility.
In considering the record and the ALJ’s entire credibility analysis, the court disagrees
with the magistrate judge's finding that there is not substantial evidence to support the ALJ's
determination that Cheney’s testimony regarding the intensity, persistence, and limiting effects
of her symptoms was not credible. As the Commissioner argues, an ALJ is not required to
discuss each factor enumerated in SSR 96-7p. “Rather the 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 to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and the reasons for that weight.” Clore v.
Colvin, C/A No. 2:13-cv-0023-FDW, 2014 WL 294640, * 6 (W.D.N.C. Jan. 27, 2014) (citing
SSR 97-7p).
Furthermore, the court cannot agree with Cheney that the ALJ did not include his reasons
for negatively assessing her credibility in his decision. Although Cheney may disagree with the
result that the ALJ reached based on the application of this two-step process, the record is clear
that the ALJ applied the correct legal standard in assessing Cheney’s credibility, and it is not the
role of this Court to re-weigh the evidence and determine whether Cheney's testimony is
credible. See Craig, 76 F.3d at 589. Because it is proper for the ALJ to consider inconsistencies
in the record, the ALJ did not err in discussing the inconsistencies between the record and
Cheney’s testimony regarding the source of her depression and stressors.

7

In assessing Cheney’s RFC, the ALJ determined that there was no evidence of aggressive
treatment for Cheney’s fibromyalgia. (R. 30). The magistrate judge states that the ALJ gives no
indication of what aggressive treatment one with fibromyalgia should receive. (Report at 11).
She also notes that after Cheney was diagnosed with fibromyalgia, Dr. Muthamma Machimada
gave her a cortisone injection. Id. And furthermore, the magistrate judge states that Cheney
returned to Dr. Hedden with pain complaints because she could not afford the co-pay to see Dr.
Machimada. Id.

Reviewing the record, however, it appears the cortisone injection was in

regard to Cheney’s deQuervain's tenosynovitis, which is a condition affecting the tendons on the
thumb side of the wrist. In his treatment notes from June 15, 2009, Dr. Machimada specifically
states that, with regard to Cheney’s polygarthralgias, he would check her blood work and follow
up with her. (R. 295). Cheney returned to Dr. Machimada one month later on July 17, 2009,
and he started her on Mobic, a nonsteroidal anti-inflammatory drugs or NSAID. (R. 290). Less
than a month later on August 7, 2009, Cheney was seen by Dr. Hedden complaining of insomnia,
headache, and frequent urination. (R. 334). He saw her again on September 8, 2009, for back
pain and Dr. Hedden noted that Cheney was also being treated by Dr. Machimada for ongoing
back pain, and would return to him as soon as she could come up with the co-pay. (R. 333). Dr.
Heddedn noted that his physical exam of Cheney “shows all of her pain to be in the S1 area
diffuse across the back, no point tenderness to palpation.” Id.
While fibromyalgia is a condition which eludes objective measurement and is difficult to
assess and treat, the ALJ did not err in noting that Cheney’s fibromyalgia was treated in a routine
and conservative manner.

See Rowe v. Astrue, No. 08-24-HRW, 2008 WL 4890228, at *3

(E.D.Ky. Nov.7, 2008) (“With regard to Plaintiff's symptoms, the record reveals mostly
conservative treatment as well as trigger point injections for her fibromyalgia”); Singleton v.
8

Astrue, 542 F.Supp.2d 367, 2008 WL 859256, *10 (D.Del. March 31, 2008) (in evaluating a
plaintiff's credibility, ALJ did not err in considering, among other factors, that “none of
[p]laintiff's treating physicians identified any specific functional limitations arising from her
fibromyalgia or other conditions that would render her totally disabled,” and plaintiff had
received only conservative, routine, care).3
When considering whether an ALJ's credibility determination is supported by substantial
evidence, the court does not replace its own credibility assessment for that of the ALJ; rather, the
court scrutinizes the evidence to determine if it is sufficient to support the ALJ's conclusion.
Coleman v. Astrue, 2011 WL 3924187, at *15 (S.D.W.Va. Sept.7, 2011); see Hays, 907 F.2d at
1456 (holding that in reviewing the record for substantial evidence, the court does not re-weigh
conflicting evidence, reach independent determinations as to credibility, or substitute its own
judgment for that of the Commissioner). The court concludes that the ALJ conducted the proper
credibility analysis and cited substantial evidence to support his finding that Cheney's subjective
complaints were not entirely credible.
B) Combination of Impairments
The magistrate judge found that the ALJ failed to adequately consider Cheney’s
impairments in combination, in particular Cheney’s fibromyalgia and irritable bowel syndrome.
(Report at 12). The magistrate judge took issue with the ALJ’s reference to Cheney’s “history”
of fibromyalgia and stated that the ALJ failed to acknowledge that fibromyalgia is difficult to
diagnose as there is no objective medical tests to confirm its presence. Id. The magistrate also
stated the ALJ seems to have failed to understand Cheney’s irritable bowel syndrome. Id.
3

“Furthermore, SSR 96-7p lists the type of treatment that a claimant receives as an appropriate factor to consider
when rendering a credibility determination, and nothing in this Ruling provides an exception for fibromyalgia.”
Vincent v. Astrue, 2008 WL 596040, * 16 (N.D. Ind. March 3, 2008).

9

The Commissioner objects and argues that Cheney has not alleged any limitations from a
combination of her fibromyalgia and irritable bowel syndrome and, moreover, as the ALJ noted,
there is no evidence that Cheney’s bowel difficulties lasted long after treatment. (Objections at
4). The Commissioner argues the ALJ stated he had specifically considered Cheney’s
impairments in combination and even if the ALJ did not, Cheney has not shown any harm. Id.
The magistrate judge states that the ALJ “seemingly failed to consider that ‘abnormal
frequency of [defecation] requiring constant trips to the bathroom are likely to place great strain
on a person who is in constant pain.” (Report at 13)(citation omitted). The magistrate judge
cites Cheney’s testimony at the hearing where she stated that because of her irritable bowel
syndrome, at times, she went to the bathroom seven or eight times a day and could not work or
had to go home. (Report at 13).
While irritable bowel syndrome certainly could cause limitations on a person’s ability to
work, Cheney also testified that she had not missed significant time from work during 2008, and
that she “would miss a day here or there because also along with the problems that [she was]
having, I also have irritable bowel syndrome.” (R. 50). Cheney has failed to provide any
additional or increased limitations supported by the record that would result from this
impairment. See Gassaway v. Astrue, C/A No. 8:07-4083-HFF-BHH, 2009 WL 462704, at * 10
(D.S.C. Feb.23, 2009) (finding no error in the ALJ's assessment of the effect of obesity in
combination with the claimant's other impairments and noting that the claimant offered no
argument as to what limitations she would experience as a result of her obesity). Her “objection
stops largely at the accusation that the ALJ's consideration is too thin, which, as the plaintiff
contends, is the appropriate legal point, considering the applicable standard of review, but fails
to take the additional step of suggesting how the outcome could have been different. In other
10

words, there is a failure to demonstrate anything more than the harmlessness of the error.”
Wright v. Astrue, 2:10-cv-02449DCN, 2011 WL 5403070 (D.S.C. Nov.8, 2011), adopting 2011
WL 5403104 (Oct. 18, 2011). Accordingly, the court finds the ALJ adequately considered
Cheney’s impairments in combination.
C) Medical Opinions
The magistrate judge determined that the ALJ erred in his treatment of several medical
source opinions. The Commissioner objects to the magistrate judge’s recommendation as
discussed more fully below.
When evaluating a claimant's application for disability benefits, the ALJ “will always
consider the medical opinions in [the] case record together with the rest of the relevant evidence
[she] receive[s].” 20 C.F.R. §§ 404.1527(b), 416.927(b). Medical opinions are defined as
“statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [a claimant's] impairment(s), including [her]
symptoms, diagnosis and prognosis, what [she] can still do despite [her] impairment(s), and [her]
physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). When determining
a claimant’s RFC, the ALJ must consider and address medical source opinions, and “[i]f the
RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain
why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7.
Generally, the ALJ will give more weight to the opinion of an examining medical source
than to the opinion of a non-examining source. 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1).
Furthermore, even greater weight should be allocated to the opinion of a treating physician
because that physician is usually most able to provide “a detailed, longitudinal picture” of a
claimant's alleged disability. Id. §§ 404.1527(c)(2), 416.927(c)(2). The medical opinion of a
11

treating physician is entitled to controlling weight if it is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the record. 20 C.F.R. §§ 404.1527 and 416.927; Mastro v. Apfel, 270 F.3d 171, 178
(4th Cir. 2001). Thus, “[b]y negative implication, if a physician's opinion is not supported by
clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded
significantly less weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir.1996).
In deciding the weight to be given to medial opinions, the ALJ is to consider: (1) length
of the treatment relationship and frequency of evaluation; (2) nature and extent of the treatment
relationship, (3) degree to which an opinion is supported by relevant evidence and explanations;
(4) consistency of an opinion with the record as a whole, (5) whether the source is a specialist in
the area relating to the rendered opinion; and (6) any other factors which tend to support or
contradict the opinion, including “the extent to which an acceptable medical source is familiar
with the other information in [a claimant's] case record.

Id. §§

404 .1527(c)(2)-(6),

416.927(c)(2)-(6).
However, medical opinions on issues reserved to the Commissioner are treated
differently than other medical opinions.

Medical opinions on issues reserved to the

Commissioner are never entitled to controlling weight or special significance, because “giving
controlling weight to such opinions would, in effect, confer upon the [medical] source the
authority to make the determination or decision about whether an individual is under a disability,
and thus would be an abdication of the Commissioner's statutory responsibility to determine
when an individual is disabled .” SSR 96-5p, 1996 WL 374183 *2. \

12

I. Dr. James N. Ruffing
The ALJ gave “no weight to the opinion of Dr. James N. Ruffing that [Cheney’s]
persistence depression would overwhelm her capacity to maintain her concentration, persistence,
and pace required in a typical work environment.” (R. 32). The ALJ noted that Cheney’s daily
activities, including her caring for others, did not support Dr. Ruffing’s opinion. Id.
While the magistrate judge noted that an ALJ does not have to mention every piece of
evidence, the magistrate judge determined that the ALJ here committed error by failing to
evaluate evidence in the record which potentially supports Cheney’s claim. (Report at 17).
Specifically, the magistrate judge noted that the ALJ failed to indicate that he had “adequately
considered” Cheney’s ability to engage in daily activities and the ALJ’s decision to reject Dr.
Ruffing’s opinion on this basis is not supported by substantial evidence.

Id The magistrate

judge also found that Dr. Ruffing’s opinion is not so different from Dr. Ron O. Thompson’s
opinion in that Cheney has problems with persistence needed to engage in basic work activities.
(Report 15-16).
The Commissioner objects contending that there was conflicting evidence regarding
Cheney’s daily activities and the daily activities which the ALJ found were inconsistent with Dr.
Ruffing’s opinion. (Objections at 5). Additionally, the Commissioner contends that the opinions
of Drs. Ruffing and Thompson were inconsistent. She contends that Dr. Thompson concluded
that Cheney had problems with persistence and the ALJ agreed and limited Cheney to simple,
routine, and repetitive tasks, while Dr. Ruffing concluded Cheney was entirely disabled due to
concentration problems. (Objections at 6).
Reviewing the record the court agrees that there is conflicting evidence regarding
whether Cheney took care of her family or they cared for her. (R. 59-61, 164-65, 194-95, 332,
13

340, 422, 437, 438, 439). However, it is not for the court to re-weigh the evidence. Further, the
court finds that, contrary to the magistrate judge’s conclusion, Dr. Thompson’s opinion is quite
different than Dr. Ruffing’s opinion. Dr. Thompson concluded that Cheney “did not seem to
have any major difficulties with concentration and attention, although [he] suspect[s] that
persistence over time would be more difficult for [Cheney] given her . . . major depressive
disorder.” (R. 349). On the other hand, Dr. Ruffing concluded that Cheney’s depression “would
overwhelm her capacity to maintain her concentration, persistence, and pace required in a typical
work environment.” (R. 299). The court finds the two opinions to be different as Dr. Ruffing
opined that Cheney was disabled due to concentration difficulties and Dr. Thompson opined only
that persistence would be difficult for Cheney. The ALJ agreed with Dr. Thompson’s conclusion
and, in light of her concentration difficulties, limited Cheney to simple, routine, and repetitive
tasks. (R. 26). Reviewing the record and the ALJ’s decision, substantial evidence supports the
ALJ's decision to discount Dr. Ruffling’s opinion.
ii. Dr. Nicole Hynes
The ALJ gave little weight to the opinion of Dr. Nicole Hynes, a rheumatologist, who
opined that Cheney could not currently work regularly as Cheney is “caught up in her pain.” (R.
31). The ALJ found the opinion was conclusory and not based on medical or psychological tests
or evaluations. The ALJ also noted that such a determination is one reserved for the
Commissioner and, moreover, the ALJ noted that the opinion was issued in October 2008 and
did not account for treatment after that time. Id.4

4

As the magistrate judge points out, Dr, Hynes saw Cheney on January 27, 2009. (Report at 17 n.7). The ALJ’s
reference to October 2008 is clearly a typographical error as the ALJ states earlier in his decision that Cheney was
seen by Dr. Hynes in January 2009. (R. 20).

14

The magistrate judge found that the ALJ erred in his weighing of Dr. Hynes’ opinion.
(Report at17). First, the magistrate judge disagreed with the ALJ statement that Dr. Hynes’
opinion was an opinion reserved to the Commissioner. The magistrate judge stated that Dr.
Hynes’ opinion was an opinion on the severity of Cheney’s impairments and not an opinion as to
whether Cheney is disabled under the SSA. Id. The magistrate judge then noted that the ALJ
discounted Dr. Hynes’ opinion because it did not account for later treatment. (Report at 17). The
ALJ found that the opinion given at the beginning of the relevant period of alleged disability
supported Cheney’s claim of disability.

Id. And further, she noted that Dr. Hynes made

recommendation with the hope that Cheney’s condition would improve, and she was not opining
that Cheney was permanently disabled. (Report at 17-18). Finally, the magistrate judge took
exception to the ALJ’s statement that Dr, Hynes’ opinion was conclusory and based upon the
fact that at that time Cheney was caught up in her pain. (Report at 18). The magistrate judge
then summarizes the treatment notes of Dr. Hynes and notes that Dr. Hynes diagnosed Cheney
with a chronic pain syndrome, which the magistrate judge notes can be a disabling condition. Id.
The Commissioner objects and contends that the ALJ did not give more weight to Dr.
Hynes’ opinion because Dr. Hynes thought Cheney would improve and therefore Cheney’s
disability would not last at least twelve months, predated significant treatment, and was
speculative. (Objections at 6). Moreover, the Commissioner contends that the ALJ correctly
noted that Dr. Hynes’ opinion was not well-supported by objective evidence. Id.
As noted above, medical opinions on issues reserved to the Commissioner, such as
whether a claimant is unable to work, are not entitled to controlling weight.

Morgan v.

Barnhart, 142 F. App'x 716, 722 (4th Cir. 2005) (holding ALJ did not err in concluding opinions
Plaintiff could not work were legal conclusions). Here, the ALJ was correct to note that Dr.
15

Hynes' opinion that Cheney could not currently work is an opinion on an issue reserved for the
Commissioner and is, therefore, not entitled to special weight. 20 C.F.R. § 404.1527(e); 20
C.F.R. § 416.927(e). Moreover, opinions of treating physicians that are not well-supported by
diagnostic and clinical findings or are inconsistent with other substantial evidence are not
entitled to controlling weight. Reviewing the record and the ALJ’s decision, substantial evidence
supports the ALJ's decision to give little weight to Dr. Hynes’ opinion.
iii. Josie Kokarev
The ALJ gave little weight to the opinion of Josie Kokarev, a licensed social worker, who
opined that Cheney was unable to perform her prior work as claims adjuster. The ALJ found that
such a determination is reserved for the Commissioner and also discounted this opinion because
Dr. Kokarev is not an acceptable medical source. (R. 31). The magistrate judge found that the
ALJ erred by failing to evaluate Dr. Kokarev’s opinion on issues such as impairment severity
and functional effects. (Report at 22).
The Commissioner objects and contends that because Dr. Kokarev was not an acceptable
medical source, her opinion was not entitled to any special deference. (Objections at 7). And in
any event, the Commissioner contends that the ALJ gave several reasons for discounting this
opinion: 1) there was no record of Cheney having suffered three episodes of decompensation as
defined in the regulations (R. 31); 2) the opinion stated Cheney was physically unable to work
which was beyond a counselor’s expertise (R. 32); and 3) Kokarev assigned a GAF score of 51
to 60 to Cheney, which indicates only moderate limitations, at most (R. 32). (Objections at 7).5
5

The Global Assessment of Functioning (“GAF”) Scale is used to rate overall psychological functioning on a scale
of 0 to 100. A GAF score of 51–60 indicates that the individual has “[m]oderate symptoms . . . OR moderate
difficulty in social, occupational, or school functioning. . . .” Diagnostic and Statistical Manual of Mental Disorders
Text Revision 34 (4th ed.2000). A GAF score of 61-70 indicates that the person has some mild symptoms or “some
difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but
generally functioning pretty well, has some meaningful interpersonal relationships.” Id. at 34. The court notes that in

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The SSRs distinguish between opinions from “acceptable medical sources” and “other
sources.” See 20 C.F.R. §§ 404.1513(d), 416.913(d). SSR 06-03p further discusses “other
sources” as including both “medical sources who are not acceptable medical sources” and
“non-medical sources.” Only acceptable medical sources can establish the existence of a
medically-determinable impairment, give medical opinions, and be considered treating sources
whose opinions may be entitled to controlling weight. SSR 06-03p. An ALJ is required to at
least consider the opinion of such a non-acceptable medical source, especially when there is
evidence in the record to suggest that the non-acceptable medical source had a lengthy
relationship with the claimant and can present relevant evidence as to the claimant's impairment
or ability to work. SSR 06-03p.
Here, the ALJ noted that Kokarev is not an acceptable medical source. However, the
ALJ considered her opinion, and found that it was not supported by the record. The ALJ noted
that there is no evidence in the record that Cheney had experienced three periods of
decompensation as described in the regulations.6 Further, as the ALJ noted, Kokarev’s opinion
is inconsistent with Cheney’s GAF scores of 51 and 65, indicating at worst only moderate
symptoms.7 The ALJ gave a comprehensive explanation which is supported by the record for

a later revision, the DSM stopped utilizing the GAF scale, due in part to its “conceptual lack of clarity.” Diagnostic
and Statistical Manual of Mental Disorders 16 (5th ed.2013).
6

The magistrate judge discounted this reason by stating that the questionnaire which Kokarev completed defined
“episodes of decompensation” (R. 272). While the questionnaire defined episodes of decompensation differently
than the SSRs, the ALJ correctly stated that there was no evidence in the record that Cheney had experienced three
episodes of decompensation “as this is described in the regulations.” (R. 32).

7

In response to the Commissioner’s objections, Cheney contends that the ALJ ignored that she was assigned a GAF
score of 35 on August 10, 2009. (R. 270). The GAF score of 35 is found in Kokarev’s opinion, which the ALJ gave
little weight to and, moreover, the record shows that Kokarev treated Cheney from September 11, 2008, to March
27, 2009 (R. 270). Other than Kokarev’s opinion based upon her treatment of Cheney which ended 4½ months
earlier, there is no evidence in the record supporting a GAF score of 35 on August 10, 2009.

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why he gave little weight to Kokarev’s opinion. Accordingly, substantial evidence supports his
decision to afford Kokarev’s opinion little weight.
IV. Conclusion
Therefore, after a thorough review of the record, the court declines to adopt the Report.
Rather ,based upon the foregoing, the court AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge

March 26, 2014
Anderson, South Carolina

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