Trappier v. Commissioner of Social Security Administration

Filing 32

ORDER RULING ON 25 REPORT AND RECOMMENDATION, the decision of the Commissioner is REVERSED pursuant to Sentence Four of 42 U.S.C. § 405(g) and REMANDED for further consideration. Signed by Honorable Richard M Gergel on 12/4/2012. (ydav, )

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Jessie Mae Trappier,
Plaintiff
vs.
Michael J. Astrue, Commissioner of the
Social Security Administration,
Defendant.

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Civil Action No. 3:11-2494-RMG

ORDER

Plaintiff filed this action seeking judicial review of the final decision of the
Commissioner of the Social Security Administration denying her disability insurance benefits
("DIB") and supplemental security income ("SSI"). In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02 DSC., this matter was referred to the Magistrate Judge for pre-trial
handling. The Magistrate Judge issued a Report and Recommendation on September 28,2012
recommending that the decision of the Commissioner be affirmed. (Dkt. No. 25). Plaintiff
timely filed objections to the Report and Recommendation of the Magistrate Judge (Dkt. No. 29),
and the Commissioner filed a reply (Dkt. No. 31). As further set forth below, the Court reverses
the decision of the Commissioner and remands the matter for further action consistent with this
opinion.

Standard of Review
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 this
Court. Mathews v. Weber, 423 U.S. 261, 271 (1976). The Court is charged with making a de
novo determination of those portions of the Report and Recommendation to which specific
objection is made. The Court may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).
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 that "[t]he findings of the
Secretary 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 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 those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971).
However, "[t]he statutorily granted right of review 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. Moreover, the findings of the Commissioner
are not binding if they were based upon the application of an improper legal standard. Coffman
v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
Factual Background

Plaintiff, whose past relevant work included work in a laundry and as a
housekeeper at a motel, presented to the Emergency Department of Georgetown Memorial
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Hospital in Georgetown, South Carolina, on November 29, 2007 with complaints of chest pain
and shortness of breath. Transcript of Record (hereafter "Tr.") at 205-06. She was ultimately
diagnosed with an acute inferior wall myocardial infarction following an urgent cardiac
catheterization and had a stent placed to resolve a 95% obstruction of her right coronary artery.
Tr. at 200-13. Shortly following her discharge for her heart attack, Plaintiff began complaining
of "difficulty walking" and was documented to be using a cane by her cardiologist, Dr. Mitchell
Devlin. Tr. at 234-36. In a follow up office visit on February 6,2008, Dr. Devlin documented
that Plaintiff had "continued right lower extremity discomfort" that had "persisted since cath."
Tr. at 261. Continued complaints of lower extremity pain and edema were periodically
documented by Plaintiffs treating physicians thereafter. Tr. at 286,304,314,333,320,438.
Plaintiff also began complaining about shoulder pain shortly after her heart attack and
was referred to an orthopaedist, Dr. Eric Heimberger. Dr. Heimberger diagnosed Plaintiff with
impingement syndrome of the right shoulder and bursitis on January 10, 2008 and administered a
cortisone injection. Tr. at 321-22. A follow up visit on February 21, 2008 indicated some relief
from the shoulder symptoms but later records indicated that the injections were of only short
term benefit. Tr. at 304, 323, 324. Plaintiff was seen on December 8, 2008 for complaints of
worsening right shoulder pain and right leg pain at the Smith Medical Clinic, a free medical
clinic operated by the Episcopal Church in Pawley's Island, South Carolina. l A physical
examination revealed that Plaintiff s shoulder would not "abduct at all" and she was diagnosed
with "frozen shoulder." Tr. at 304. A MRI of the right shoulder was performed at Georgetown

1

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Memorial Hospital on December 15, 2008 which revealed abnormalities in the rotator cuff of the
right shoulder "compatible with tendinosis." Tr. at 308-09. Following the abnormal MRI,
Plaintiffretumed to Dr. Heimberger on January 5, 2009. Dr. Heimberger, following a review of
the MRI and a physical examination of the patient, confirmed his earlier diagnosis of tendinitis
and provided Plaintiff another cortisone injection. Tr. at 324-25. Three days later, Plaintiff was
again seen at the Smith Medical Clinic and stated she had seen no noticeable improvement from
the injection. Tr. at 314. Plaintiff was referred to physical therapy but was unable to meet any of
the goals of the therapy, including a decrease in pain and an improvement in her range of motion.
Tr. at 330-34. Plaintiffs physical therapy records document complaints of severe pain in her
right shoulder and lower extremities and "visible weakness" in her right upper extremity. Tr. at
332-334. Plaintiff was also seen in the Emergency Department at Georgetown Medical Center
on February 3, 2009 complaining of pain in her left shoulder. The emergency room physician
documented pain on palpation ofthe joint and "a lot of pain with abduction." Tr. at 371-72.
Plaintiff returned to the Smith Medical Clinic of February 20,2009 and was documented
to have limited range of motion in both shoulders. She was encouraged to return to Dr.
Heimberger but she explained that she had no insurance or funds necessary to pay for his
services. Tr. at 318. Plaintiff was seen again at the Smith Medical Clinic on July 29. 2009 and
was documented to have limited shoulder movement due to her tendinitis and bursitis and had
edema of her lower extremities. Tr. at 320. She was also seen on September 25,2009 and was
documented with bilateral shoulder pain and significant lower extremity pain, which was noted
to have arisen since her heart attack. Tr. at 435.
Plaintiff was thereafter evaluated and treated by a board certified anesthesiologist, Dr.

Rex Quigley, at the Smith Medical Clinic. He documented on October 14,2009 Plaintiff's
history of "severe, continuous pain" and noted that a recent MRl had demonstrated the presence
oftendinosis. Tr. at 436. Dr. Quigley administered another cortisone injection, which seemed
initially to provide relief but by November 11, 2009 it was noted she had not had any
improvement. Tr. at 436,439,444. Plaintiff was also documented at the Smith Medical Clinic
on October 19, 2009 to have bilateral upper extremity pain and weakness so great "[s]he can't
hold a glass in her hand." Tr. at 438. Dr. Quigley noted on October 28, 2009 that a recent MRl
had revealed evidence of what he believed were cervical spine abnormalities. Tr. at 439.
Following this history of evaluation and treatment of Plaintiff at the Smith Medical
Clinic, which included at least 11 office visits over a 12-month period, Dr. Quigley prepared
responses to a disability questionnaire on January 21,2010. 2 He found that the Plaintiff had
"severe" pain and problems in her bilateral shoulders in limitation of motion, weakness, bursitis,
impingement syndrome, arthritis, and frozen shoulder. Tr. at 451. He opined that Plaintiff could
lift no weight over five pounds and could do this only occasionally. Tr. 455. He also
documented that Plaintiff needed to keep her legs elevated "most of time" and he answered the
question of the hours she could work per day with "none." Tr. at 449. He also noted her
"weakness and fatigue due to cardiac condition." Id.
The Administrative Law Judge conducted a hearing on February 3, 2010. Plaintiff
testified that "[b]oth of my shoulders are frozen" and "I can't use either one." Tr. at 6. She also
testified that she could "lift very little" because she had "weak hands." Tr. at 36. Plaintiff

Dr. Quigley appears to have seen Plaintiff on at least three of these visits, where he
administered pain therapy through cortisone injections. Tr. at 436,439,444.
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further stated that her 24-year-old daughter did the household chores and has to "wash me,
change my clothes and stuff. Sometimes my arms be so numb and heavy from the pain I can't
even lift it." Tr. at 39.
The Commissioner presented the opinions of two chart reviewers, who did not evaluate or
examine Plaintiff and had no history of treating her. One of these chart evaluators, Dr. Shixiong
Liao (who referred to himself as "Jim Liao") is, according to the South Carolina Board of
Medical Examiners website, trained as a pathologist. 3 In a report prepared on March 19, 2008,
Dr. Liao noted Plaintiffs cardiac history and right shoulder pain but concluded that her
complaints were only "partially credible." Tr. at 289-92. He also concluded that she could lift
10 pounds frequently and 20 pounds occasionally but provided no evidence upon which he based
such an opinion. Tr. at 288. Dr. Liao's report indicated that Plaintiff had sufficient residual
functional capacity to work. Notably, Dr. Liao's report predates all of the Smith Medical Clinic
treatment.
The other chart review provided by the Commissioner was by Dr. Jean Smolka, who,
according to the South Carolina Board of Medical Examiners, is trained as a pediatrician. 4 In her
report, dated June 26, 2008, she reached remarkably similar conclusions to Dr. Liao, arriving at
exactly the same lifting limitations and concluding that Plaintiff had sufficient residual functional
capacity to work. Tr. at 296-303. Like Dr. Liao's chart review, Dr. Smolka completed her
review before the treatment afforded Plaintiff at the Smith Medical Clinic.

In a decision issued on March 23, 2010, the Administrative Law Judge ("ALJ") found

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https:llverify.llronline.comlLicLookup/MedlMed2.aspx?LicNum=20693&cdi=350.

that Plaintiff had "severe impainnents" with "osteoarthritis of the left knee, impingement
syndrome of the right shoulder and coronary artery disease, status post stenting and myocardial
infarction." Tr. at 12. The ALl also found that these impainnents limited Plaintiff to sedentary
work and that she was not able to perfonn her last relevant work. Tr. at 14-18. In reaching this
conclusion, the ALl separately analyzed the patient's cardiac and orthopaedic problems and
found that each supported a limited range of sedentary work. ld.
The ALl then addressed the opinions offered by the treating physician, Dr. Quigley,
which the ALl stated she gave "no weight" because "they are unsupported by Dr. Quigley'S
Smith Clinic treatment notes ... as well as [Plaintiffs] treatment notes with Dr. Heimberger, , "
and her 2009 cervical and bilateral shoulder x-rays and MRI scans which were unremarkable."
Tr. at 17. Instead, the ALl relied on the chart reviews provided by Drs. Liao and Smoak, which
the ALl found were "somewhat supported by the objective medical evidence." Tr. at 17.
Following the issuance of the ALl decision denying Plaintiffs application for disability
benefits, she timely sought review by the Appeals Council and, when no relief was provided,
timely filed a request for review with this Court.

Discussion
A. Failure to give the opinions of a treating physician, Dr. Quigley, proper
consideration under controlling Social Security Regulations
Generally speaking, the Social Security Administration accords greater weight to the
opinions of treating physicians because treating sources are "most able to provide a detailed,
longitudinal picture" of the claimant's medical impainnents and "may bring a unique perspective
to the medical evidence." 20 C.F.R. § 404.1527(c)(2). Where a treating physician's opinions are

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"well supported by medically acceptable clinical and laboratory diagnostic techniques and [are]
not inconsistent with the other substantial evidence in the record," the Commissioner is obligated
to give those opinions controlling weight. Id. To the extent the opinions of the treating
physician are not given controlling weight, the treating physician's opinions will still be
evaluated by a variety of factors, including whether the physician has examined the patient, the
nature, length, and extent of the treating relationship, the supportability of the opinions with
other evidence in the record, and whether the treating physician is a specialist. 20 C.F.R. §§
404.1527(c)(2)(i),(ii).
The ALl's evaluation of Dr. Quigley's opinions falls far short of these well settled legal
standards. First, the AL] is obligated, even where the treating physician'S opinion is not given
controlling weight, to consider and weigh the nature and extent of the treating physician's
relationship and his special expertise, if any. Dr. Quigley and his colleagues at the Smith Medical
Clinic had considerable exposure to Plaintiff through frequent clinical evaluations, diagnostic
studies, and observations from various treatment approaches. As an anesthesiologist, Dr. Quigley
had a special expertise in pain management that provided him potentially valuable insight into the
nature and extent of Plaintiff's condition. The AL] failed to consider and weigh the various
factors set forth in 20 C.F.R. § 404.1527, particularly those which appear most obviously relevant
to the circumstances regarding Dr. Quigley'S treatment relationship with Plaintiff and his special
expertise. To dismiss Dr. Quigley'S opinions outright and summarily (giving "no weight" to his
opinions) is inconsistent with the mandate of the regulations to provide special consideration to

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the opinions of a claimant's treating physician.)
Second, the ALl's finding that Dr. Quigley's opinions are unsupported in his treatment
records or in Plaintiffs other medical records is itself unsupported by substantial evidence.
Without attempting to be exhaustive, the Court identifies in the record the following evidence
supportive of Dr. Quigley's opinions:
1. Dr. Quigley'S Smith Medical Clinic note of October 14,2009 documenting Plaintiffs

"severe, continuous" shoulder pain. Tr. at 436.
2. Dr. Quigley'S Smith Medical Clinic note of October 28,2009 interpreting the MRl of
the cervical spine as showing "cervical disc disease or cervical spondylosis." Tr. at 439.
3. Dr. Quigley'S Smith Medical Clinic note of November 11,2009 documenting no
improvement from the injections to Plaintiffs right shoulder. Tr. at 444.
4. Smith Medical Clinic note of December 9,2008 finding "shoulder frozen." Tr. at 304.
5. Smith Medical Clinic note of February 26,2009 documenting limited range of motion
in both shoulders. Tr. at 318.
6. Smith Medical Clinic note of July 29, 2009 documenting limited shoulder movement
due to tendinitis and bursitis and edema of patient's lower extremities. Tr. at 320.
7. Smith Medical Clinic note of September 25,2009 documenting patient's lower
extremity and bilateral shoulder pain. Tr. at 435.
8. Smith Medical Clinic note of October 19, 2009 documenting bilateral upper extremity

5 It does appear odd to the Court that the opinions of a treating physician with special

expertise would be summarily rejected while the opinions of two chart reviewers were given

"some weight," particularly where the ALJ found the chart reviewers opinions were only

"somewhat supported" by the record. Tr. at 17.

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pain and weakness so great patient "[c]an't hold a glass in her hand." Tr. at 438.
9. MRl of December 15,2008 showing "inflammation of the musculotendinous insertion
and the appearance oftendinosis." Tr. at 308.
10. Dr. Heimberger's findings on January 10,2008 and January 5, 2009 of a positive
impingement sign in the right shoulder. Tr. at 321, 324-25.
11. Multiple entries in Plaintiffs physical therapy records indicating significant shoulder
and lower extremity pain and weakness. Tr. at 330-34. These include such statements as
"shoulder really hurt this weekend," shoulder "hurt so bad the other day I went to ER," "today
pain in [right] groin and knee worse than [right] sh[oulder] pain," and "visible weakness noted
[with exercise] in [right] l[ower] e[xtremity]."
The ALJ's failure to properly weigh and evaluate Dr. Quigley's opinions as a treating
physician, as mandated by 20 C.F.R. § 404. I 527(c), requires the decision of the Commissioner to
be reversed and remanded. On remand, the Commissioner, in evaluating the opinions of Dr.
Quigley, should review the entire medical record and provide the appropriate respect and
deference to a claimant's treating physician required by controlling regulations.
B. Failure to consider Plaintiff's impairments in combination

A fundamental principle of Social Security disability law is that the Commissioner must
consider "the combined effect of all of the [claimant's] impairments without regard to whether
any such impairment, if considered separately, would be of such severity." 42 U.S.C. §
423(d)(2)(B); Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989). In her order, the ALJ
alternatively addressed the Plaintiff's significant coronary history, right shoulder complaints, and
lower extremity difficulties. Tr. at 15-17. For each, the ALJ found that the impairment supported
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a finding of a limited range of sedentary work. ld.
However, the ALJ failed to consider the combined effect of these severe impairments, as
mandated by 42 U.S.C. § 423(d)(2)(B). This is potentially significant in regard to Plaintiffs
claim for disability. It requires little imagination to appreciate the potential combined effects that
severe impairments of the upper and lower extremities and cardiac disease (here presenting with
the symptom of fatigue) might have on a claimant's ability to perform work. A review of Dr.
Quigley's completed questionnaire appears to address the combined effects of Plaintiffs multiple
impairments. Tr. at 447-55. The Court finds that the ALJ's failure to consider and weigh the
combined effects of Plaintiff's multiple impairments provides a separate and independent basis
for reversal and remand.
Conclusion

Based on the foregoing. the decision of the Commissioner is REVERSED pursuant to
Sentence Four of 42 U.S.c. § 405(g) and REMANDED for further consideration consistent with
this Order.
AND IT IS SO ORDERED.

December L/, 2012
Charleston, South Carolina

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