Parker v. Commissioner of Social Security Administration

Filing 20

ORDER RULING ON 15 Report and Recommendation: The Court declines to adopt the Report and reverses and remands the decision of the Commissioner for further administrative action, pursuant to sentence four of § 405(g). Signed by Honorable Cameron McGowan Currie on 8/14/2018. (vdru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Larry Parker,

Civil Action No. 2:17-cv-1213-CMC
Plaintiff,
vs.

OPINION AND ORDER

Nancy A. Berryhill,
Acting Commissioner of Social Security
Administration,
Defendant.
Through this action, Plaintiff seeks judicial review of the final decision of the
Commissioner of Social Security denying his claim for Disability Insurance Benefits (“DIB”) and
supplemental security income (“SSI”). Plaintiff appealed pursuant to 42 U.S.C. § 405(g). The
matter is currently before the court for review of the Report and Recommendation (“Report”) of
Magistrate Judge Mary Gordon Baker, made in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Rules 73.02(b)(2)(a) and 83.VII.02, et seq., D.S.C.
The Report, filed July 16, 2018, recommends the decision of the Commissioner be
affirmed. ECF No. 15. On July 30, 2018, Plaintiff filed objections to the Report. ECF No. 16.
On August 6, 2018, the Commissioner filed a response to Plaintiff’s objections. ECF No. 18. For
the reasons stated below, the court declines to adopt the Report and reverses and remands the
decision of the Commissioner for further administrative action, pursuant to sentence four of §
405(g).
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
determination of those portions of the Report to which specific objection is made, and the court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
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, “[t]he findings of the Secretary
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”1 42 U.S.C. § 405(g).
The court must uphold the Commissioner’s decision as long as it was supported by substantial
evidence and reached through the application of the correct legal standard. Johnson v. Barnhart,
434 F.3d 650 (4th Cir. 2005).

This standard precludes a de novo review of the factual

circumstances that substitutes the court’s findings for those of the Commissioner. Vitek v. Finch,
438 F.2d 1157 (4th Cir. 1971). “From this it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted. The statutorily granted right of review

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“Substantial evidence has been defined innumerable times as more than a scintilla, but less than
a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
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contemplates more than an uncritical rubber stamping of the administrative action.” Flack v.
Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “[T]he courts must not abdicate their responsibility to
give careful scrutiny to the whole record to assure that there is a sound foundation for the
[Commissioner’s] findings, and that his conclusion is rational.” Vitek, 438 F.2d at 1157-58.
However, the court does not “reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the ALJ.” Johnson, 434 F.3d at 653. “Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility
for that decision falls on the ALJ.” Id.
Background
Plaintiff applied for DIB on July 24, 2009, alleging disability as of June 15, 2009, due to
back and knee pain. R2. at 73-78. After a hearing, the Administrative Law Judge (“ALJ”) found
Plaintiff was not disabled. R. at 73-93. The Appeals Council denied review. R. at 94. Plaintiff
thereafter filed a second set of applications for DIB and SSI on May 14, 2013, claiming disability
as of July 24, 2009 due to back and knee pain.3 R. at 205-217. Plaintiff’s applications were denied
initially and upon reconsideration. On February 5, 2016, a second hearing was held before an ALJ.
R. at 38-65. On March 30, 2016, the ALJ issued a decision, finding Plaintiff was not disabled
within the meaning of the Act. R. at 13-35. Plaintiff requested review by the Appeals Council,

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3

Citations to the Record are denoted by “R.”

The court notes Plaintiff was incarcerated from October 13, 2013 to April 2014 (R. at 486-88),
and benefits are generally not payable for any period during which a claimant is incarcerated for
the commission of a crime. See 42 U.S.C. § 402(x)(1)(a).
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which was denied (R. at 1), making the determination of the ALJ the final decision of the
Commissioner. Plaintiff filed this action May 10, 2017. ECF No. 1.
The ALJ’s Decision
1) Disability Hearings
After Plaintiff’s first hearing, ALJ Spidel considered Plaintiff’s submitted documents and
medical records as well as hearing testimony, and determined Plaintiff was capable of performing
sedentary work. R. at 81. Plaintiff then filed his second set of applications, and after denials,
requested another hearing. The ALJ at that hearing, Judge Wilson, determined Plaintiff had
improved since the first hearing and was capable of performing light work with limitations on
using ropes, ladders, or scaffolds and occasionally stooping, kneeling, crouching and crawling. R.
at 22. ALJ Wilson accorded “partial weight” to the prior decision of ALJ Spidel, “because there
was new evidence that could not be considered at the time of the prior decision.”4 R. at 27.
At the hearing before ALJ Wilson, the Vocational Expert (“VE”) considered hypothetical
situations and opined whether a claimant with limitations in the stated hypotheticals would be able
to sustain competitive employment. The ALJ first asked the VE to consider a hypothetical
individual with the same characteristics as Plaintiff who could lift 20 pounds occasionally, 10
pounds frequently; stand six of eight hours, walk six of eight hours, and sit six of eight hours; push

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The court notes ALJ Wilson stated that ALJ Spidel determined Plaintiff’s RFC was for “light
exertion limited to simple repetitive tasks.” R. at 27. However, ALJ Spidel appears to have
determined Plaintiff was capable of “the full range of sedentary work” and could perform “simple,
routine, repetitive tasks.” R. at 81.
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and pull in lower extremities occasionally; climb, kneel, crouch and crawl occasionally; never use
ropes, ladders and scaffolds; and avoid concentrated exposure to hazards. R. at 61. The VE opined
that individual could not perform Plaintiff’s past work, but could perform other jobs in the “light”
work category, for example as a cashier, storage facility rental clerk, or paint spray investigator.
R. at 62. The ALJ then asked the VE to consider the same individual with the same functional
limitations except he would have daily absences from his work station with a duration in the
discretion of the individual (to rest or shift positions), as needed. The VE stated that “would
effectively eliminate any form of competitive employment.” R. at 63. Plaintiff’s attorney then
asked the VE whether rest away from the work station for significantly more than an hour during
the working portion of the work day would disqualify him from competitive employment, and the
VE agreed that would be “inconsistent with competitive employment.” R. at 63-64. Next,
Plaintiff’s attorney asked the VE if the same individual who would also miss more than three days
of work per month would be able to sustain competitive employment, and the VE agreed he would
not. R. at 64. Finally, the VE agreed the same individual who would have problems with attention
and concentration sufficient to frequently interrupt tasks during the work day would not be able to
be competitively employed. R. at 64-65.5

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The limitations in these last three hypotheticals directly track the language of the treating
physicians’ opinion questionnaires, detailed below.
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2) Non-Examining Physicians’ Opinions
Two state agency non-examining physicians submitted opinion evidence as part of the
Disability Determinations: Dr. Van Slooten and Dr. Junker.6 Dr. Van Slooten submitted an
opinion as part of the Disability Determination Explanation dated September 20, 2013. R. at 99111. As part of that determination, Dr. Van Slooten assessed Plaintiff’s submitted evidence,
credibility, and RFC and opined Plaintiff was not disabled. Id. He specifically noted, in evaluating
credibility, “[t]here is no indication that there is medical or other opinion evidence.” R. at 105. In
the Reconsideration level Disability Determination Explanation, Dr. Junker evaluated Plaintiff’s
physical condition and potential limitations on December 13, 2013. R. at 125-136. Dr. Junker
also opined Plaintiff was not disabled, and again specifically stated there was “no indication that
there is medical or other opinion evidence.” R. at 131. The ALJ accorded “great” weight to the
opinions of Drs. Van Slooten and Junker. R. at 26.
The non-examining physicians did not have the opinions of the treating physicians, detailed
below, when making their determinations regarding disability. The non-examining physicians did,
however, have the medical records Plaintiff submitted in support of his application for disability
benefits, as the ALJ noted. R. at 26. The ALJ determined the “[e]vidence submitted subsequent

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Drs. Horn and Wieland were also involved in the Disability Determinations, but appear to address
only Plaintiff’s “affective disorder” and not his back, knee, or hip pain. Plaintiff does not allege
error in the findings regarding his depression.
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to the [non-examining physicians’] opinion being rendered failed to reveal any significant changes
necessitating modification’s [sic] of the opinion.” Id.
3) Treating Physicians’ Opinions
Plaintiff submitted opinions of four of his treating physicians regarding his medical
condition. R. at 489, 490, 520, 598. Two of these opinions, those of Drs. Hedden and Baird,
concerned Plaintiff’s condition in 2014, a third (Dr. Shallcross) in January 2015, and the last (Dr.
Lenehan) in February 2015. Id. Drs. Hedden and Baird opined Plaintiff was unable to engage in
anything more than sedentary work, and Dr. Lenehan agreed “it is unlikely that he could engage
in anything more than sedentary work.” R. at 489, 490, 598 Further, Dr. Hedden noted Plaintiff
would most probably have to rest away from the work station for significantly more than an hour
out of the working portion of the day, would most probably have to miss more than three days of
work in a month, and would have problems with attention and concentration sufficient to
frequently interrupt tasks during the work day. R. at 489. Dr. Baird opined Plaintiff would have
to rest away from his work station for significantly more than an hour per work day, would “likely”
miss more than three days of work per month, and it was “unknown” whether he would have
problems with attention and concentration. R. at 490. Dr. Lenehan stated it was “likely” Plaintiff
would have to rest away from his work station for more than an hour per work day and miss more
than three days of work per month, but it was unlikely he would have problems with attention and
concentration as “lumbar DDD does not cause problems with attention and concentration.” R. at
598. The final opinion, by Dr. Shallcross, did not contain the question regarding sedentary work

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and merely opined Plaintiff would likely have to sit every hour or so and would most probably
have to miss more than three days of work per month. R. at 520.
The ALJ specifically considered each of the form questionnaires submitted by these
treating physicians on Plaintiff’s behalf. R. at 25-26. The ALJ noted in his opinion Drs. Hedden
and Baird “opined the claimant is unable to perform sedentary work.” R. at 25. However, their
questionnaires actually reveal these physicians agreed Plaintiff could not “engage in anything more
than sedentary work.” R. at 489, 490 (emphasis added). Dr. Lenehan similarly noted it was
“unlikely that he could engage in anything more than sedentary work.” R. at 598. The ALJ found
these opinions inconsistent with the medical records and Plaintiff’s activities of daily living, and
thus accorded “little weight” to the opinions. R. at 25-26.
4) ALJ’s RFC Determination
The ALJ ultimately determined Plaintiff
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except the claimant is able to lift twenty pounds
occasionally and ten pounds frequently. The claimant is able to walk, stand, and
sit for six hours in an eight-hour day. Furthermore, the claimant is able to
occasionally push and pull with his lower extremities, but is unable to use ropes,
ladders, or scaffolds. Additionally, the claimant is able to occasionally climb,
stoop, kneel, crouch, and crawl, but should avoid concentrated exposure to hazards.
R. at 22. The ALJ noted he considered all symptoms and the extent to which they can reasonably
be accepted as consistent with the objective medical evidence and other evidence, as well as
opinion evidence. Id.

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Discussion
The Magistrate Judge recommends the court affirm the Commissioner’s decision. Plaintiff
objects to the Report, arguing: (1) the ALJ failed to provide adequate explanation for his credibility
determination and (2) the ALJ erred in failing to properly evaluate the opinion evidence. ECF No.
16. The Commissioner argues Plaintiff’s objections essentially rehash arguments made in his brief
before the Magistrate Judge and should be treated as general objections, not specific ones.7 ECF
No. 18.
1) Credibility Determination
Plaintiff first argues the ALJ did not “build an accurate and logical bridge from the
evidence” to his conclusion regarding Plaintiff’s credibility when he found Plaintiff only partially
credible. ECF No. 24 at 1. He contends the ALJ failed to consider that the series of questions
regarding activities “contained no quantification . . . were generalizations of the past four year[s]”
and did not establish if Plaintiff had difficulty or assistance performing the activities. Plaintiff
contends the ALJ did not consider the record evidence as a whole, and the Magistrate Judge may
not provide “post hoc rationale” to support the ALJ’s findings. Therefore, Plaintiff argues,
substantial evidence does not support the ALJ’s credibility determination and the case should be
remanded for further administrative action. Id. at 6.

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Despite this argument, the court has reviewed the issues raised in Plaintiff’s objections de novo.
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As remand is required due to the other grounds argued by Plaintiff, the court declines to
address this issue. On remand, the ALJ is to take into consideration Plaintiff’s allegations of error
regarding the credibility determination in light of the findings below.
2) Evaluation of Opinion Evidence
Plaintiff next argues the ALJ erred in discounting the questionnaires submitted by
Plaintiff’s treating physicians Drs. Baird, Hedden, Shallcross, and Lenehan. ECF No. 16 at 6. He
contends the ALJ did not adequately consider the consistency of these providers’ opinions.
Finally, he argues the ALJ should not have accorded significant weight to the opinions of nontreating examiners whose opinions were based on a significantly incomplete or partial medical
record. Id. at 10.
a. Treating Physicians
The opinions submitted by the treating physicians are fairly consistent with each other, as
Plaintiff argues, and may have been mistakenly characterized by the ALJ as precluding sedentary
work.8 However, it is possible the ALJ considered the totality of each questionnaire, along with
other record evidence, in determining the treating physicians opined Plaintiff could not perform

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The ALJ went to great lengths to discount opinions of the treating physicians that Plaintiff “is
unable to perform sedentary work.” R. at 25. As noted above, the treating physicians agreed
Plaintiff could not perform more than sedentary work, not that he was unable to perform sedentary
work. They did indicate Plaintiff would likely require rest for more than one hour per day and
likely miss more than three days a month. Nevertheless, the ALJ concluded that in contrast to Dr.
Hedden’s opinion based on an abnormal MRI “none of these impairments would prevent the
claimant from performing basic work activities.” Id.
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sedentary work. The ALJ could have considered the opinions regarding resting an hour away from
his work station and missing more than three days of work per month, coupled with the testimony
from the VE regarding inconsistency with these limitations and competitive employment, as
opining Plaintiff was unable to perform sedentary work. As the issue below requires remand, the
ALJ should reevaluate and more thoroughly explain his findings regarding the treating physicians’
opinions.
b. Non-examining Physicians
Plaintiff also argues the ALJ should not have accorded great weight to the opinions of the
non-examining physicians when their opinions contradict the treating physicians’ opinions.
Plaintiff contends the ALJ improperly gave greater weight to the opinions of the non-examining
physicians than those of the treating physicians, despite the fact the opinions of the non-examining
physicians were made “without the benefit of any of the treating opinions.” ECF No. 16 at 9.
Citing Rogers v. Colvin, No. 0:12-cv-2210-MGL, 2014 WL 1330088 (D.S.C. March 31, 2014),
Plaintiff argues “the consistent opinions from treating providers and specialists would have made
a difference to an impartial physician based on a review of the evidence.” Id. The Magistrate
Judge did not address this argument in the Report.
Opinions by non-examining physicians “are typically afforded less weight than those by
examining and treating physicians.” Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). Because
the non-examining physicians did not have the benefit of the treating physicians’ opinions, and
specifically noted there was no indication there was “other opinion evidence,” remand is necessary.
The court is unable to determine whether the ALJ’s decision to accord great weight to the non11

examining physicians’ opinions was supported by substantial evidence. This is especially so
where the VE testified that discretionary rest during the workday would “effectively eliminate any
form of competitive employment” (R. at 63), all four of Plaintiff’s treating physicians indicated
Plaintiff would likely require rest away from the work station for an hour or more per day, and the
non-examining physicians did not have the benefit of the treating physicians’ opinions.
Conclusion
For the reasons set forth above, the court declines to adopt the Report and reverses and
remands the decision of the Commissioner for further administrative action, pursuant to sentence
four of § 405(g).9
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
August 14, 2018

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The clerk of the Court will enter a separate judgment pursuant to the Federal Rules of Civil
Procedure, Rule 58.
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