Myers v. Commissioner of Social Security Administration

Filing 22

ORDER ADOPTING THE REPORT AND RECOMMENDATIONS for 16 Report and Recommendations, the Commissioner's decision is affirmed. Signed by Honorable R Bryan Harwell on 7/25/2012. (ydav, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Doris A. Myers,

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

Civil Action No.: 3:11-cv-01525-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 Doris A. Myers 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 affirming the decision of the Commissioner.
Factual Findings and Procedural History
Plaintiff applied for DIB on January 8, 2009, alleging that she became unable to work on
August 30, 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 10, 2010,
and Plaintiff appeared and testified. A vocational expert also testified. The ALJ issued a decision
dated September 15, 2010, finding that Plaintiff was not disabled. The ALJ’s overall findings were
as follows:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.
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.

2. The claimant has not engaged in substantial gainful activity since
August 30, 2008, the alleged onset date (20 CFR 404.1571, et seq.).
...
3. The claimant has the following severe impairments: residual effects
of breast surgery (20 CFR 404.1520(c)).
...
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the criteria of 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, the undersigned
finds that the claimant has the residual functional capacity to sit for 4
hours in an 8-hour day, for 1 to 2 hours at a time. She can lift a
maximum of 20 pounds and can lift 10 pounds frequently and less
than 10 pounds occasionally. The claimant can occasionally push and
pull within these pounds limitations with the left upper extremity. She
must avoid crawling and climbing ropes, ladders, and scaffolds. She
must avoid concentrated exposure to dusts, fumes, gases, and poor
ventilation, and she must avoid overhead reaching with her left upper
extremity. She is right hand dominant and can read, write, add, and
subtract.
...
6. The claimant is capable of performing past relevant work as a
drafter and office assistant. This work does not require the
performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565).
...
7. The claimant has not been under a disability, as defined in the
Social Security Act, from August 30, 2008, through the date of this
decision (20 CFR 404.1520(f)).
Tr. 20-26.

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The ALJ’s finding became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for further review on May 9, 2011. On June 22, 2011, 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. 8, 13, & 14, and the Magistrate Judge issued
his Report and Recommendation (“R&R”) on May 2, 2012, recommending that the Commissioner’s
decision be affirmed, R&R, ECF No. 27. Plaintiff filed timely objections to the R&R on May 9,
2012, Pl.’s Objs., ECF No. 17, and the Commissioner replied on May 29, 2012, ECF No. 18.
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).
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

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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
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

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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
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)

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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 affirming the final decision of the Commissioner.
Plaintiff’s objections raise the same arguments she makes in her brief. In fact, the objections only
point out error in the administrative decision and fail to even refer to the recommendation of the
Magistrate Judge. Plaintiff uses her objections, thus, as another opportunity to contend that the
findings of the Commissioner are not supported by substantial evidence. Specifically, she argues
the Commissioner erred (1) in disregarding an opinion of Plaintiff’s treating physician, (2) in
assessing Plaintiff’s credibility, and (3) in failing to consider a possible diagnosis of reflex
sympathetic dystrophic syndrome (“RSDS”). The Court addresses Plaintiff’s objections in turn.
1. Treating Physician’s Opinion
Plaintiff points to an opinion of her treating physician, Dr. Michael Harless, from April 27,
2010, which concluded that Plaintiff was unable to work an eight-hour day, five days per week.
She contends the Commissioner erred in not giving the opinion controlling weight and points to
other evidence to show the Commissioner’s decision was not supported by substantial evidence.
Pl.’s Objs. 5-8.
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

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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 Court finds no error in the Magistrate Judge’s recommendation to affirm. To the extent
the specific opinion relied on by Plaintiff is a medical opinion,2 the Magistrate Judge correctly

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Although not argued by the Commissioner, it appears the opinion is also an improper legal
conclusion. See Morgan v. Barnhart, 142 F. App’x 716, 721-23 (4th Cir. 2005). The requirement
that the Commissioner give a treating physician’s opinion controlling weight hinges, in part, on
whether the opinion is a “medical opinion.” See 20 C.F.R. § 404.1527(a)(2) (“Medical opinions are
statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis
and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.”). An opinion from a physician does not make the opinion a medical opinion, giving it
controlling weight. Dr. Harless’s opinion about whether Plaintiff could work an eight-hour day,
five days a week goes beyond the nature or severity of the impairment. Indeed, the opinion requires
an assumption about the kind of work the Plaintiff is able to do. In other words, just because a
person experiences pain does not preclude her from substantial gainful activity. Accepting Dr.
Harless’s opinion as a medical opinion would effectively remove the prerogative to determine
disability from the Commissioner and place it in the hands of the treating physician, a consequence
that is contrary to the purposes of the regulations and their enabling statutes. See, e.g., 20 C.F.R. §
404.1527(d) (“Opinions on some issues . . . are not medical opinions, as described in paragraph
(a)(2) of this section, but are, instead, opinions on issues reserved to the Commissioner because they
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reasoned that the opinion was not adequately supported and not consistent with other evidence in
the record. As the Magistrate Judge noted, Plaintiff sought infrequent treatment for her complaints
of left-sided pain, chest wall pain, and anxiety, and she participated in many activities, including
walking to the drug store, painting, reading, and doing crossword puzzles.3

Moreover, Dr.

Harless’s opinion was not consistent with his treatment notes which showed he provided only
conservative treatment and because he did not place any limitations on Plaintiff’s activities.
Finally, the opinion, which was made on a questionnaire in the context of Plaintiff’s application for
benefits, refers to no contemporaneous clinical and laboratory diagnostic techniques.

The

Commissioner’s decision to not give controlling weight to Dr. Harless’s opinion thus is supported
by substantial evidence.
2. Plaintiff’s Credibility Assessment
Next, Plaintiff contends the Commissioner erred in finding Plaintiff was not credible. The
Magistrate Judge concluded that the Commissioner’s assessment was “supported by substantial
evidence and correct under controlling law.” R&R 10. Plaintiff, however, claims the Commissioner
“only cited medical information in the record that was favorable to the [Commissioner’s] finding
and disregarded other relevant medical information that was to the contrary.” Pl.’s Objs. 9.
Under 20 C.F.R. § 404.1529(b), “the determination of whether a person is disabled by pain
or other symptoms is a two-step process.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). The
threshold requirement is that there be “a showing by objective [medical] evidence of the existence
of a medical impairment which could reasonably be expected to produce the actual pain, in the
amount and degree, alleged by [Plaintiff].” Id. (internal quotation marks omitted).

Once the

are administrative findings that are dispositive of the case; i.e., that would direct the determination
or decision of disability.” (emphasis added)).
3
Plaintiff visited Dr. Harless on June 9, 2009, for a general checkup and made no mention of pain.
Tr. 289.
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Commissioner concludes that this threshold requirement has been met, the Commissioner must
evaluate “the intensity and persistence of [Plaintiff’s] pain, and the extent to which it affects her
ability to work.”4 Id. at 595. “[T]his evaluation must take into account not only [Plaintiff’s]
statements about her pain, but also ‘all the available evidence,’ including [Plaintiff’s] medical
history, medical signs, and laboratory findings; any objective medical evidence of pain . . . ; and any
other evidence relevant to the severity of the impairment, such as evidence of [Plaintiff’s] daily
activities, specific descriptions of the pain, and any medical treatment taken to alleviate it.” Id.
(citations omitted). The Commissioner may not disregard or discredit Plaintiff’s statements about
pain “solely because they are not substantiated by objective medical evidence.” SSR 96-7p; see also
Craig, 76 F.3d at 595. The Fourth Circuit has held that once a claimant meets the “threshold
obligation of showing by objective medical evidence a condition reasonably likely to cause the pain
claimed, [Plaintiff is] entitled to rely exclusively on subjective evidence to prove the second part of
the test, i.e., that [the] pain is so continuous and/or severe that it prevents [Plaintiff] from working a
full . . . day.” Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006).
However,
[t]his is not say . . . that objective medical evidence and other
objective evidence are not crucial to evaluating the intensity and
persistence of a claimant’s pain and the extent to which it impairs her
ability to work. They most certainly are. 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
Specifically, the following factors relevant to one’s pain and symptoms will be considered by the
Commissioner: (1) the individual’s daily activities; (2) the location, duration, frequency, and
intensity of the individual’s pain or other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate the pain or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms; (6) any measures other than
treatment that the individual uses or has used to relieve pain or other symptoms (such as lying flat
on one’s back, standing for 15 to 20 minutes each hour, etc.); and (7) any other factors concerning
the individual’s functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §
404.1529(c)(3).
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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 . . . .
Craig, 76 F.3d at 595. Finally, the Commissioner’s “determination or 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.” SSR 967p.
Here, the Commissioner found Plaintiff’s alleged symptoms could reasonably be caused by the
medically determinable impairments but discounted her allegations regarding the severity of her
symptoms.

The Court concurs with the recommendation that the Commissioner properly

considered other evidence to weigh Plaintiff’s allegations.

As the Magistrate Judge notes,

Plaintiff’s allegations are not entirely consistent with her level of physical and social activities and
the “relatively infrequent and conservative treatment of her symptoms following her mastectomy.”
R&R 10-11. As Plaintiff notes, the evidence highlighted by her in her objections shows various
instances where she complained of pain. Moreover, she took medication for her pain.

This

evidence, however, was not ignored by the Commissioner; indeed, the Commissioner never
dismissed her allegations she was in pain. He merely found her pain, based on the medical evidence
and her activities, was not disabling. Pl.’s Objs. 9-10. Therefore, the Commissioner’s decision was
supported by substantial evidence, and the recommendation was not in error.
3. Failure to Consider Possible RSDS Diagnosis
Finally, Plaintiff argues the Commissioner erred in failing to consider a possible RSDS
diagnosis. Pointing to the administrative decision, Plaintiff contends the Commissioner “failed to

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take into consideration the various symptoms of RSDS and the possibility that the pain symptoms
complained of by Plaintiff could have been caused by RSDS.” Pl.’s Objs. 11.
The Court finds no error in the Magistrate Judge’s recommendation to affirm the
Commissioner on this issue. Here, Plaintiff seeks a medical finding by the Commissioner, who is
not a medical professional, when there is inconclusive evidence to support a diagnosis of RSDS.
The Commissioner discussed the “possible” diagnosis as follows:
While Dr. Jordan noted [Plaintiff’s] pain could be [RSDS] in nature,
none of [Plaintiff’s] treating physicians noted that [Plaintiff] may
have RSD[S], nor have they documented any significant findings to
support this diagnosis. Because Dr. Jordan examined [Plaintiff] on
only this one occasion and because a diagnosis of RSD[S] is not
supported by the treatment notes of record, Dr. Jordan’s opinion that
[Plaintiff] may have RSD[S] has been given little weight.
Tr. 24. As the Magistrate Judge reasoned, Plaintiff had the burden to prove her impairments. An
opinion by an examining physician that Plaintiff’s pain “could be a [RSDS] type pain of the area” is
not evidence that must be given any controlling weight. Tr. 264. Indeed, Plaintiff cannot point to
any other part of the record showing an actual diagnosis of RSDS and relies only on RSDS-like
symptoms. The Commissioner, therefore, properly assigned weight to the opinion, dismissed it, and
focused more on the combined effect of her symptoms in determining her residual functional
capacity. The Magistrate Judge’s recommendation was correct.
Conclusion
The Court has thoroughly reviewed the entire record as a whole, including the briefs, the
Magistrate Judge’s R&R, Plaintiff’s objections to the R&R, and applicable law. For the reasons set
forth above and by the Magistrate Judge, the Court hereby overrules Plaintiff’s objections and
adopts and incorporates by reference the R&R of the Magistrate Judge. The Commissioner’s
decision is AFFIRMED.

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IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
July 25, 2012
Florence, South Carolina

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