Burton v. Commissioner of Social Security Administration

Filing 22

ORDER RULING ON 17 Report and Recommendation: The Court Reverses the Commissioners decision pursuant to sentence four of 42 U.S.C. § 405(g) and Remands this case to the Commissioner to reconsider the evidence of record consistent with thefindings in this Order. Signed by Honorable R Bryan Harwell on 1/17/2019. (vdru, ) Modified to edit text on 1/18/2019 (vdru, ).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Rhonda Corine Burton,

)
)
Plaintiff,
)
)
v.
)
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)
______________________________)

Civil Action No.: 2:17-cv-01595-RBH

ORDER

Plaintiff Rhonda Corine Burton has brought this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of the final decision of the Commissioner of Social Security denying her claim for
supplemental security income (“SSI”). This matter is now before the Court for review of the Report and
Recommendation (“R & R”) of United States Magistrate Judge Mary Gordon Baker, made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rules 73.02(B)(2)(a) and 83.VII.02 (D.S.C.).
[ECF # 23]. The Magistrate Judge recommends that the Court remand the matter back to the
Commissioner for further proceedings. This Court has thoroughly reviewed the record in this case and
now issues the following Order.
Statement of Facts and Procedural History
Plaintiff was born on October 26, 1971 and was twenty-seven years old on the date of the
alleged onset of disability. Plaintiff initially applied for supplemental security income (“SSI”) on
October 24, 2013, alleging a disability date of January 1, 1998. She alleges she became disabled due
to obesity, gastroparesis, status post fusion of the lumbar spine, anxiety, panic disorder, and major
depressive disorder, among other ailments. [ECF #14]. Throughout the course of the time period
covered in this action, Dr. Leah Trantham of Goose Creek Family Practice has been Plaintiff’s primary

physician. Plaintiff’s medical history is extensively documented in the record. Briefly stated, Plaintiff
suffers from depression, anxiety, obesity and nausea that she has been treated for since 2012. [ECF #99, Ex. 5F]. In April of 2013, Plaintiff began receiving treatment for abdominal pain. Testing in July
of 2013 revealed esophagitis, gastroparesis, and a small hiatal hernia. [ECF #9-7, Ex. 2F]. Plaintiff’s
issues with gastroparesis continued after this time. In August of 2013, Plaintiff was also diagnosed with
diabetes. On October 7, 2013, after Plaintiff was sent for issues related to nausea, she was diagnosed
with diabetic gastroparesis, getting progressively worse. [ECF #9-8, Ex 4F]. In addition to the
persistence of these problems, her mental health issues continued. Dr. Trantham noted in one record
that Plaintiff’s low back pain issue were currently on the backburner due to her other issues. Dr.
Trantham felt strongly that Plaintiff needed a psychiatric evaluation. [ECF #9-9, Ex. 5F]. Devin Black,
B.S. provided treatment to Plaintiff in November of 2014, noting that Plaintiff had major depressive
disorder, panic disorder and generalized anxiety disorder. [ECF #9-10, Ex. 15F]. Plaintiff continued
treatment for these conditions, as well as for other conditions, during the course of the next few years.
After obtaining an unfavorable decision from the Administrative Law Judge on May 26, 2016,
Plaintiff requested a review from the Appeals Council, but this request was denied, making the ALJ’s
decision the final decision of the Commissioner. [ECF #17, p. 2].
The ALJ’s findings were as follows:
(1) The claimant has not engaged in substantial gainful activity
since October 24, 2013, the application date (20 CFR 416.971 et
seq.).
(2) The claimant has the following severe impairments: obesity,
gastroparesis, status post fusion of the lumbar spine, anxiety,
panic disorder, and major depressive disorder (20 C.F.R.
404.920(c)).
(3) The claimant does not have an impairment or combination of
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impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926).
(4)After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 416.967(a) except she can never
climb ladders, ropes, or scaffolds. The claimant can occasionally
climb ramps and stairs, stoop, kneel, crouch, and crawl. She can
have no exposure to unprotected heights. The claimant must
avoid concentrated exposure to dusts, odors, fumes, pulmonary
irritants, extreme cold, and extreme heat. She is limited to the
performance of simple, routine tasks. The claimant can interact
and respond appropriately to supervisors, coworkers, and the
public on an occasional basis. The claimant’s use of judgment
and ability to deal with changes in the work setting are limited to
simple, work-related decisions. In addition to normal breaks, the
claimant is expected to be off task up to 10 percent of the time in
an 8-hour workday. She requires a sit/stand option defined as a
brief postural change at or near the work station up to a maximum
duration of 5 minutes twice in one hour.
(5) The claimant has no past relevant work (20 CFR 416.965).
(6) The claimant was born on October 26, 1971, and was 41 years
old, which is defined as a younger individual age 18-44, on the
date the application was filed. The claimant subsequently
changed age category to a younger individual age 45-49 (20 CFR
416.963).
(7) The claimant has a limited education and is able to
communicate in English (20 CFR 416.964).
(8) Transferability of job skills is not an issue because the
claimant does not have past relevant work (20 CFR 416.968).
(9) Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in
the Social Security Act, from October 24, 2013, the date the
application was filed (20 CFR 416.920(g)).
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[ECF #9-2, pp. 12-27].
On June 19, 2017, Plaintiff filed a complaint seeking judicial review of the Commissioner’s
decision. [ECF #1]. Both Plaintiff and Defendant filed briefs [ECF #13, ECF #14], and the Magistrate
Judge issued a Report and Recommendation (“R&R”) on December 10, 2018, recommending that the
Commissioner’s decision be remanded to the Commissioner. [ECF #17]. The Magistrate Judge
determined that the ALJ did not adequately evaluate the combined effect of Plaintiff’s multiple
impairments in determining the RFC. [ECF #17, p. 8]. The Commissioner filed objections on
December 21, 2018. [ECF #18]. The Commissioner objects to remanding this case, arguing that the
ALJ already considered Plaintiff’s multiple impairments in discussing the hearing decision. [ECF #18,
pp. 2-3]. Plaintiff replied to the Commissioner’s objections on January 1, 2019. [ECF #20].
Standard of Review
I.

Judicial Review of the Commissioner’s Findings
The federal judiciary has a limited role in the administrative scheme established by the Act,

which provides the Commissioner’s findings “shall be conclusive” if they are “supported by substantial
evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times as more
than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.
1964). Substantial evidence “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).
This statutorily mandated 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, 1157-58
(4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must uphold the
Commissioner’s factual findings “if they are supported by substantial evidence and were reached

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through application of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even if the Court
disagrees with the Commissioner’s decision, the Court must uphold the decision if substantial evidence
supports it). This standard of review does not require, however, mechanical acceptance of the
Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). The Court “must not
abdicate [its] responsibility 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.” Vitek, 438 F.2d
at 1157-58.
II.

The Court’s Review of the Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the Report and Recommendation (“R & R”) to which specific
objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,

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718 F.2d 198, 200 (4th Cir. 1983).
Applicable Law
Under the Act, Plaintiff’s eligibility for the sought-after benefits hinges on whether she is under
a “disability.” 42 U.S.C. § 423(a). The Act defines “disability” 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.” Id. § 423(d)(1)(A). The claimant bears the ultimate burden to
prove disability. Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985). The claimant may
establish a prima facie case of disability based solely upon medical evidence by demonstrating that her
impairments meet or equal the medical criteria set forth in Appendix 1 of Subpart P of Part 404 of Title
20 of the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d) & 416.920(d).
If such a showing is not possible, a claimant may also establish a prima facie case of disability
by proving she could not perform her customary occupation as the result of physical or mental
impairments. See Taylor v. Weinberger, 512 F.2d 664, 666-68 (4th Cir. 1975). This approach is
premised on the claimant’s inability to resolve the question solely on medical considerations, and it is
therefore necessary to consider the medical evidence in conjunction with certain vocational factors.
20 C.F.R. §§ 404.1560(a) & § 416.960(a). These factors include the claimant’s (1) residual functional
capacity, (2) age, (3) education, (4) work experience, and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform. Id. §§ 404.1560(a), 404.1563,
404.1564, 404.1565, 404.1566, 416.960(a), 416.963, 416.964, 416.965, & 416.966. If an assessment
of the claimant’s residual functional capacity leads to the conclusion that she can no longer perform
her previous work, it then becomes necessary to determine whether the claimant can perform some

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other type of work, taking into account remaining vocational factors. Id. §§ 404.1560(c)(1) &
416.960(c)(1). Appendix 2 of Subpart P governs the interrelation between these vocational factors.
To facilitate a uniform and efficient processing of disability claims, regulations promulgated
under the Act have reduced the statutory definition of disability to a series of five sequential questions.
See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the
“need for efficiency” in considering disability claims). An examiner must consider the following: (1)
whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe
impairment; (3) whether that impairment meets or equals an impairment included in the Listings;1 (4)
whether such impairment prevents claimant from performing past relevant work;2 and (5) whether the
impairment prevents her from doing substantial gainful activity. See 20 C.F.R. § 404.1520. These
considerations are sometimes referred to as the “five steps” of the Commissioner’s disability analysis.
If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R.
§ 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step,
Commissioner makes determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if she can return to past relevant work
as it is customarily performed in the economy or as the claimant actually performed the work. See 20

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The Commissioner’s regulations include an extensive list of impairments (“the Listings” or “Listed impairments”)
the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The
Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to
prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all
criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment.
20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her
impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20
C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987)
(noting the burden is on claimant to establish his impairment is disabling at Step 3).

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In the event the examiner does not find a claimant disabled at the third step and does not have sufficient
information about the claimant’s past relevant work to make a finding at the fourth step, he may proceed to the
fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).

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C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82–62 (1982). The claimant
bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. §
423(d)(5). Once an individual has made a prima facie showing of disability by establishing the
inability to return to past relevant work, the burden shifts to the Commissioner to come forward with
evidence that claimant can perform alternative work and that such work exists in the regional economy.
To satisfy that burden, the Commissioner may obtain testimony from a vocational expert demonstrating
the existence of jobs available in the national economy that claimant can perform despite the existence
of impairments that prevent the return to past relevant work. Walls v. Barnhart, 296 F.3d 287, 290 (4th
Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is
unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
Analysis
In her initial brief, Plaintiff argues that the ALJ failed to evaluate the combined effect of her
multiple impairments and failed to properly evaluate the opinions of the treating physicians and other
sources, such that the hearing decision was not supported by substantial evidence. [ECF #13]. After
reviewing Plaintiff’s arguments, along with Commissioner’s responses, the Magistrate Judge
recommended remanding this matter back to the Commissioner because she found that the ALJ’s
opinion does not reflect an adequate assessment or evidence of consideration of the combined effect of
all of Plaintiff’s impairments. [ECF #17]. Based on this recommendation, the Magistrate Judge
recommends remanding this case so that the ALJ can consider what effect, if any, there is on the RFC
with respect to Plaintiff’s combination of impairments, as well as consider the remaining issue Plaintiff
raised regarding the opinions of the treating physicians and other sources. The Commissioner filed an

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objection to the R&R.
The Commissioner objects to the Magistrate Judge’s determination that the matter should be
remanded to allow the ALJ to properly consider any impact on Plaintiff’s RFC after considering the
combination of Plaintiff’s multiple impairments. The Commissioner argues that the ALJ did indeed
address all of Plaintiff’s impairments and expressly considered how all of Plaintiff’s symptoms impacted
her ability to work, thereby considering the combined effect of all such impairments. The Commissioner
also points to the RFC to argue that the limitations within the RFC reflect the fact that it accounts for
more than one impairment. Further, the Commissioner expressly honed in on the analysis by the
Magistrate Judge that the records shows that Plaintiff’s mental impairments and gastroparesis may have
affected each other, evidence that the failure to consider the combination of impairments was not
harmless error. The Commissioner argues that the objective evidence shows that Plaintiff only suffered
from “mildly delayed gastric emptying,” thereby suggesting that the limitation was not as severe as
alleged. In response, Plaintiff points out that despite the Commissioner’s statement that the ALJ
expressly considered Plaintiff’s combination of impairments, post hoc explanation of the decision does
not suffice. Further, Plaintiffs argues that to the extent the Commissioner argues that her gastroparesis
was “mild,” this is irrelevant because the ALJ has already found that this condition was a “severe”
impairment.
The Fourth Circuit has consistently held that when evaluating the effect of various impairments
upon a disability benefit claimant, the combined effect of a claimant’s impairments must be considered.
Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). Disability may result from a number of impairments
whose total effect, when taken together, render the claimant unable to engage in substantial gainful
activity. Id. This, in turn, requires the ALJ to adequately explain or evaluate the combined effects of the

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impairments, rather than fragmentize them. Id. (citing Reichenbach v. Heckler, 808 F.2d 309 (4th Cir.
1985). However, as argued by the Commissioner, the adequacy requirement reiterated in Walker is met
“if it is clear from the decision as a whole that the Commissioner considered the combined effect of a
claimant’s impairments.” Brown v. Astrue, No 0:10-CV-01584, 2012 WL 3716792, at *6-*7 (D.S.C.
Aug. 28, 2012). Plaintiff is tasked with showing that the Commissioner’s decision could have a
different outcome if he or she had done an adequate combined effect analysis, rather than a
“fragmentized” analysis of the multiple impairments. Brown, 2012 WL 3716792, at *6 (citing Mickles
v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994)); Morgan v. Barnhart, 142 F. App’x 716, 724 (4th Cir.
2005).
Here, this Court agrees with the Magistrate Judge that it is simply unclear whether the ALJ
considered the effect of Plaintiff’s combined impairments. Additionally, this Court cannot say this error
was harmless because Plaintiff suffered from several severe impairments which, when combined, could
impact the RFC assessment. The Magistrate Judge noted that medical evidence within the record
indicated that Plaintiff’s gastroparesis and mental impairments were related. In the response,
Commissioner argues that objective evidence suggests that Plaintiff’s gastroparesis was mild; however,
the ALJ already determined that it was a severe impairment. The Commissioner cites to prior case law
to support the argument that the Magistrate Judge seeks to impose upon the ALJ a greater level of
articulation than is required. This Court has reviewed Cox v. Colvin and finds that the decision actually
supports the recommendation of the Magistrate Judge in this case. See Cox v. Colvin, No. 9:13-cv-2666RBH, 2015 WL 1519763, at *6 (D.S.C. Mar. 31, 2015). In Cox, this Court considered whether the
adequacy requirement in Walker was met in considering whether the ALJ properly considered the
claimant’s combined impairments. The ALJ in that case considered Plaintiff’s symptoms, explained how

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each impairment and symptom factored into the RFC determination, and found that reading the entire
decision as a whole, it was clear that the ALJ considered the combination of all impairments. This Court
agrees with the Magistrate Judge that the same cannot be said of the decision in this case.
While the ALJ did give an explanation of the medical history after stating the RFC
determination, he did not explain how all impairments factored into the RFC or how the impairments
affected the RFC. Nor did he provide a statement, boilerplate or otherwise, saying the impairments were
considered in combination. While the Commissioner encourages the Court to find that the ALJ analyzed
the symptoms in this manner, this Court refrains from engaging in such post-hoc rationalization of the
decision. See Bray v. Commissioner, 554 F.3d 1219, 1225 (9th Cir. 2009)(noting the long-standing
principle in administrative law to avoid post hoc rationalizations that seek to infer what the adjudicator
may have been thinking). This Court thus agrees with the Magistrate Judge that this case should be
remanded for the ALJ to conduct an additional analysis regarding Plaintiff’s impairments in
combination.
This Court notes that neither Plaintiff nor Commissioner objected to the Magistrate Judge’s
recommendation that as part of the overall reconsideration of the claim, the ALJ should take into
consideration any additional allegation raised by Plaintiff in this case. Plaintiff alleged that the ALJ
erred in the assessment of the opinions of the treating physicians. This Court finds no clear error in this
recommendation. Accordingly, because this Court is remanding this matter back to the Commissioner,
this Court also finds that the ALJ should make appropriate findings as to this allegation as well, to the
extent that determination is impacted by the analysis regarding the combination of impairments.
Conclusion
The Court has thoroughly considered the entire record as a whole, including the administrative

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transcript, the briefs, the Magistrate Judge’s R & R, the objections, and the applicable law. For the
above reasons, the Court adopts the Magistrate Judge’s recommendation. [ECF #17]. The Court
REVERSES the Commissioner’s decision pursuant to sentence four of 42 U.S.C. § 405(g) and
REMANDS the case to the Commissioner to reconsider the evidence of record consistent with the
findings in this Order.
IT IS SO ORDERED.
Florence, South Carolina
January 17, 2019

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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