Fincannon Masters v. Commissioner of Social Security Administration

Filing 28

ORDER ADOPTING THE REPORT AND RECOMMENDATIONS for 22 Report and Recommendations, the Commissioner's decision is reversed pursuant to sentence four of 42 USC 405(g) and the case is remanded to the Commissioner for further proceedings. Signed by Honorable R Bryan Harwell on 7/24/2012. (ydav, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Carla Y. Fincannon Masters,

)
)
Plaintiff,
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v.
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Michael J. Astrue, Commissioner of )
the Social Security Administration, )
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Defendant.
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)

Civil Action No.: 3:10-cv-02477-RBH

ORDER

This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Joseph R. McCrorey.1 Plaintiff Carla Y. Fincannon Masters
brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying Plaintiff’s claim for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”). In his R&R, the
Magistrate Judge recommends reversing the decision of the Commissioner and remanding the case
for additional findings.
Factual Findings and Procedural History
Plaintiff applied for DIB on January 9, 2008, alleging that she became unable to work on
January 3, 2008. The application was denied initially and on reconsideration. Plaintiff requested a
hearing before the Administrative Law Judge (“ALJ”). That hearing was held on August 14, 2009,
and Plaintiff appeared and testified. A vocational expert also testified. The ALJ issued a decision
dated October 29, 2009, finding that Plaintiff was not disabled. The ALJ’s overall findings were as
follows:
1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), this
matter was referred to the Magistrate Judge.

1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity since
January 3, 2008, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: migraine
headaches, fibromyalgia, lumbar back disorder, anxiety, and
depression (20 CFR 404.1520 (c)).
…
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, and 404.1526).
…
5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except that claimant must avoid
concentrated exposure to occupational hazards. Additionally, as a
result of claimant’s “severe” mental impairments, I find that she is
restricted to simple, routine, and repetitive tasks, and is likewise
restricted to work that does not involve interaction with members of
the general public.
…
6. The claimant is unable to perform any past relevant work (20 CFR
404.1565).
…
7. The claimant was born on November 21, 1967, and was 40 years
old, which is defined as a younger individual age 18-49, on the
alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
2

10. 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 404.1569 and 404.1569(a)).
…
11. The claimant has not been under a disability, as defined in the
Social Security Act, from January 3, 2008 through the date of this
decision (20 CFR 404.1520(g)).
Tr. 48-54.
The ALJ’s finding became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for further review on July 30, 2010. On September 23, 2010,
Plaintiff filed this action seeking judicial review of the Commissioner’s decision. Compl., ECF No.
1. Both Plaintiff and the Commissioner filed briefs, ECF Nos. 12, 14, & 20, and the Magistrate
Judge issued his Report and Recommendation (“R&R”) on March 6, 2012, recommending that the
Commissioner’s decision be reversed and remanded, R&R, ECF No. 22. The Commissioner filed
timely objections to the R&R on March 21, 2012, Def.’s Objs., ECF No. 23, and Plaintiff replied on
April 5, 2012, Pl.’s Reply, ECF No. 24.
Standard of Review
The role of the federal judiciary in the administrative scheme established by the Act is a
limited one. The Act provides that “[t]he 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 innumerable times as more than a scintilla, but less than
preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). “Substantial evidence”
is “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 and citations omitted).

3

This statutorily mandated standard precludes a de novo review of the factual circumstances
that substitutes the Court’s findings for those of the Commissioner. See 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 factual findings of the [Commissioner] if they are supported by substantial
evidence and were reached 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.
1973) (holding that the Court must uphold the decision supported by substantial evidence “even
should [it] disagree”).

“From this it does not follow, however, that the findings of the

administrative agency are to be mechanically accepted.” 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 assume that there is a sound foundation for the [Commissioner’s] findings, and that his
conclusion is rational.” Vitek, 438 F.2d at 1157-58.
Furthermore, a de novo review is conducted of the Magistrate Judge’s R&R. 28 U.S.C. §
636(b)(1). The R&R is only a recommendation to the Court and has no presumptive weight;
indeed, the responsibility to make a final determination remains with the district court. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of
those portions of the R&R 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
him with instructions. § 636(b)(1).
The right to de novo review, however, may be waived by the failure to file timely objections.
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). 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’s proposed findings and recommendations.” Id. Moreover, in the

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absence of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). In that event, however, the
Court must “ ‘satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Determination of Disability
Under the Act, Plaintiff’s eligibility for the benefits she is seeking hinges on whether she is
under a “disability.” 42 U.S.C. § 423(a). The term “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 . . . .” Id. § 423(d)(1)(A). “The ultimate burden
to prove disability lies on the claimant.” Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985).
A claimant may establish a prima facie case of disability based solely upon medical evidence by
demonstrating that her impairments meet or medically equal the listed impairments set forth in
Appendix 1 of Subpart P. 20 C.F.R. § 404.1520(d).
If such a showing is not possible, a claimant may also establish a prima facie case of
disability by proving that she could not perform her customary occupation as the result of physical
or mental impairments. See Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975). Because this
approach is premised on the claimant’s inability to resolve the question solely on medical
considerations, it then becomes necessary to consider the medical evidence in conjunction with
certain “vocational factors.” 20 C.F.R. § 404.1560(b). These factors include the claimant’s (1)
“residual functional capacity,” id. § 404.1560; (2) age, id. § 404.1563; (3) education, id. §
404.1564; (4) work experience, id. § 404.1565; and (5) the existence of work “in significant

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numbers in the national economy” that the individual can perform, id. § 404.1560.

If the

assessment of the claimant’s residual functional capacity leads to the conclusion that she can no
longer perform her previous work, it must be determined whether the claimant can do some other
type of work, taking into account remaining vocational factors. Id. § 404.1560. The interrelation
between these vocational factors is governed by Appendix 2 of Subpart P. Thus, according to the
sequence of evaluation suggested by 20 C.F.R. § 404.1520, it must be determined: (1) whether the
claimant is currently gainfully employed, (2) whether she suffers from some physical or mental
impairment, (3) whether that impairment meets or medically equals the criteria of Appendix 1, (4)
whether, if those criteria are not met, the impairment prevents her from returning to her previous
work, and (5) whether the impairment prevents her from performing some other available work.
Analysis
The Magistrate Judge recommends reversing the final decision of the Commissioner and
remanding the case to the Commissioner for him to reconsider and reweigh the medical opinions of
Plaintiff’s treating physician in light of the whole record.

Specifically, the Magistrate Judge

concludes that the Commissioner’s decision is not supported by substantial evidence because the
Commissioner failed to consider the opinions of Dr. Thaer Joudeh in assessing the weight of the
opinions of Dr. Marcia Oliver. R&R 11.2
In his objections, the Commissioner argues that the opinions of Dr. Oliver were properly
assessed in light of their inconsistencies, the opinions of other non-treating physicians and
specialists, and other medical evidence. Moreover, the Commissioner contends the failure to
consider the opinions of Dr. Joudah was harmless error because his opinions were “conclusory
statements” that were “not entitled to any weight” because they were not proper medical opinions.
Def.’s Objs. 2-4.
2

Plaintiff was treated by both Drs. Joudeh and Oliver.
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The medical opinion of a treating physician is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); 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). Under
such circumstances, “the [Commissioner] holds the discretion to give less weight to the testimony
of a treating physician in the face of persuasive contrary evidence.” Mastro, 270 F.3d at 178 (citing
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992)).
If the Commissioner determines that a treating physician’s opinion is not entitled to
controlling weight, he must consider the following non-exclusive list of factors to determine the
weight to be afforded the physician’s opinion: (1) the length of the treatment relationship and the
frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidence
with which the physician supports his opinion; (4) the consistency of the opinion; (5) whether the
physician is a specialist in the area in which he is rendering an opinion; and (6) other factors that
support or contradict the opinion. 20 C.F.R. § 404.1527(c); see also Johnson v. Barnhart, 434 F.3d
650, 654 (4th Cir. 2005). The Commissioner must give specific reasons, supported by the record,
for the weight given to a treating physician’s medical opinion. SSR 96-2p.
The Magistrate Judge’s recommendation to reverse the Commissioner’s decision is proper.
There is no indication in the record that the Commissioner considered the medical records and
opinions of Dr. Joudeh, who treated Plaintiff on multiple occasions soon after she left her job.3 This

3

The Commissioner concedes that Dr. Joudeh’s opinions were not directly addressed in the
decision. Def.’s Objs. 4. As Plaintiff agued in her brief, Dr. Joudeh’s opinions supported the
opinions of Dr. Oliver. Pl.’s Br. 7-9, ECF No. 12. Specifically, Dr. Joudeh concluded that Plaintiff
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failure was in violation of the regulations promulgated by the Commissioner. See 20 C.F.R. §
404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”).
Moreover, the Court cannot find the Commissioner’s omission to be harmless error.

As the

Magistrate Judge noted, Dr. Joudeh’s notes and opinions provide some support for Dr. Oliver’s
opinions, to which the Commissioner assigned little weight based on conflicting evidence in the
record. Because this Court cannot reweigh the evidence, remand is appropriate in order for the
Commissioner to reassess the weight of Dr. Oliver’s opinions in light of those of Dr. Joudeh.4
Conclusion
The Court has thoroughly reviewed the entire record as a whole, including the briefs, the
Magistrate Judge’s R&R, Plaintiff’s objections, and applicable law. For the reasons set forth above
and by the Magistrate Judge, the Court hereby overrules the Commissioner’s objections and adopts
and incorporates by reference the R&R of the Magistrate Judge. The Commissioner’s decision is
REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and the case is REMANDED to the
Commissioner for further proceedings as set forth herein.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
July 24, 2012
Florence, South Carolina

suffered from several severe impairments, which included depression, anxiety, migraines, and
fibromyalgia, and resulted in functional decline. Tr. 206, 210, 357.
4
To prevent confusion on remand, the Commissioner need not consider the records of Plaintiff’s
employer, Dr. Samer Joudeh, who is an oral surgeon.
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