Edwards v. Commissioner of Social Security Administration

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATION declining to adopt 25 Report and Recommendation, reversing the decision of the Commissioner and remanding the case for further administrative action. Signed by Honorable Richard M Gergel on 08/05/2013. (bshr, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Gloria Jean Edwards,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 3: 12-693-RMG

ORDER

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Plaintiff 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 Disability
Insurance Benefits ("DIB"). In accord with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC,
this matter was referred to a United States Magistrate Judge for pre-trial handling. The
Magistrate Judge issued a Report and Recommendation on June 27, 2013, recommending that
the Commissioner's decision be affirmed. (Dkt. No. 25). Plaintiff filed objections to the Report
and Recommendation and the Commissioner filed a reply. (Dkt. Nos. 27, 31). As more fully set
forth below, the decision of the Commissioner is reversed and remanded for further action
consistent with this order.
Legal 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 and Recommendation to which specific objection is

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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)(I).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. The Act provides that the "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). This
standard precludes de novo review of the factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. Vitek v. Finch, 438 F .2d 1157 (4th CiT. 1971).
Although the federal court's review role is a limited one, "it does not follow, however,
that the findings of the administrative agency are to be mechanically accepted. The 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). Further, the
Commissioner's findings of fact are not binding if they were based upon the application of an
improper legal standard. Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987).
The Commissioner, in passing upon an application for disability benefits, is required to
undertake a five-step sequential process. At Step One, the Commissioner must determine
whether the applicant is engaged in substantial gainful work. 20 C.F.R. § 404.1 520(a)(4)(i). If
the claimant is not engaged in substantial gainful employment, the Commissioner proceeds to
Step Two, which involves a determination whether the claimant has any "severe medically
determinable physical or mental impairment." Id. § 404. 1520(a)(4)(ii). If the claimant has one
or more severe impairments, the Commissioner proceeds to Step Three, which involves a
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detennination whether any impainnent of the claimant satisfies anyone of a designated list of
impainnents that would automatically render the claimant disabled. Id. § 404.1520(a)(4)(iii).
Further, even if a claimant's condition does not meet all of the requirements of a listing, a
claimant may be declared disabled at Step Three if she is able to show that another impainnent or
combination ofimpainnents are the medical equivalent of the listed impainnent. 42 U.S.C.

§ 423(c)(2)(b); Walker v. Bowen, 889 F.2d 47,50 (4th Cir. 1989); 20 C.F.R. § 404. 1526(b).
If the claimant does not have a listed impainnent, the Commissioner must proceed to Step
Four, which involves an assessment of the claimant's Residual Functional Capacity ("RFC"). 20
C.F.R. § 404.1520(a)(4)(iv). This requires assessment of the claimant's ability "to meet the
physical, mental, sensory, and other requirements of work." Id. § 404. 1545(a)(4). In
detennining the claimant's RFC, the Commissioner "must first identify the individual's
functional limitations or restrictions" and provide a narrative "describing how the evidence
supports each conclusion, citing specific medical facts ... and nonmedical evidence." SSR 96­
8P, 61 Fed. Reg. 34474, 34475, 34478 (July 2, 1996).
Once the claimant's RFC is detennined, the Commissioner must assess whether the
claimant can do his past relevant work. 20 C.F.R. §§ 404. 1520(4)(iv), 1545(a)(5)(i). If the
claimant, notwithstanding the RFC detennination, can still perfonn his past relevant work, he is
deemed not to be disabled. If the claimant cannot perfonn his past relevant work, the
Commissioner then proceeds to Step Five to detennine if there is other available work in the
national economy he can perfonn in light of the RFC detennination. Id. § 404. 1520(a)(4)(v).
Under the regulations of the Social Security Administration, the Commissioner is
obligated to consider all medical evidence and the opinions of medical sources, including treating
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physicians. Id. § 404.1545. The regulation, known as the "Treating Physician Rule," imposes a
duty on the Commissioner to "evaluate every medical opinion we receive." Id. § 404. 1527(c).
The Commissioner "[g]enerally ... give[s] more weight to opinions from ... treating sources"
based on the view that "these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from objective medical
findings alone or from reports of individual examinations, such as consultative examinations or
brief hospitalizations." Id. § 404.1 527(c)(2). Further, the Commissioner "[g]enerally ... give[s]
more weight to the opinion of a source who has examined [the claimant] than to the opinion of a
source who has not examined [the claimant]." Id § 404. 1527(c)(I).
Under some circumstances, the opinions of the treating physicians are to be accorded
controlling weight. Even where the opinions of the treating physicians of the claimant are not
accorded controlling weight, the Commissioner is obligated to weigh those opinions in light of a
broad range of specifically identified factors, including the examining relationship, the nature and
extent of the treatment relationship, supportability of the opinions in the medical record,
consistency, and whether the treating physician is a specialist. Id. §§ 404.1 527(c)(1)-(5). The
Commissioner is obligated to weigh the findings and opinions of treating physicians and to give
"good reasons" in the written decision for the weight given to a treating source's opinions. SSR
96-2P, 61 Fed. Reg. 34490,34492 (July 2, 1996).
Discussion

This appeal represents the second time this Court has addressed Plaintiff s application for
disability benefits. The Court previously reversed and remanded the Commissioner's denial of

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disability benefits because the decision ofthe Administrative Law Judge ("ALJ") significantly
understated the medical evidence in the record concerning the Plaintiff s impairments. Edwards
v. Astrue~ C.A No. 3:09-3187-RMG-JRM~ 2010 WL 5575482 (D.S.C. Dec. 22, 201O)~ report
and recommendation adopted by 2011 WL 121799 (D.S.C. Jan. 12~ 2011). First~ the Court noted

that the ALJ had failed to appropriately evaluate Plaintiffs significant spinal cord disorders
under Listing 1.04A on the erroneous finding that the claimant's MRI did not demonstrate nerve
root impingement. Id. at *6-7. 1 The Court specifically referenced an MRI report that explicitly
found nerve root impingement. Transcript of Record (hereafter "Tr.") at 381. The Court directed
the Commissioner on remand to evaluate Plaintiffs claim under the Listing 1.04A in light of the
record evidence. 2 Second~ the Court reversed the AU's finding that Plaintiffs lupus was not a
severe impairment, referencing numerous medical records documenting the claimant's multiple
flare-ups and complications from this condition. 2010 WL 5575482, at *8. Third, the Court
directed on remand the ALJ to consider the combined effects of the claimant's spinal cord
disorders and lupus and to "adequately explain his evaluation of the combined effect of these
impairments." Id.
After conducting another evidentiary hearing on December 20, 2011, the ALJ issued a
new decision, again concluding that Plaintiff failed to satisfY the requirements for Social Security
disability. In reaching that conclusion, the ALJ acknowledged that while Plaintiff did have

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references to Listings can be found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.

2 The ALJ also erroneously stated in his prior decision that there was no radiographic
evidence of spinal stenosis. Tr. at 15. The record, in fact, documented radiographic evidence of
spinal stenosis in lumbar spine MRI's of November 1,2002, and December 13, 2005. Tr. at
381,439. This was another example of the ALJ materially understating the degree of Plaintiffs
impairments.

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record evidence of nerve root compression secondary to her degenerative disc disease with some
evidence of limitation of motion of the spine, motor loss, and positive straight leg raises, "these
findings have not been consistent during the period in question." Tr. at 643. Thus, the ALJ
concluded that Plaintiff did not meet the requirements for Listing 1.04A.
The ALJ further modified his finding regarding Plaintiffs lupus, concluding that it was,
in fact, a severe impairment. Tr. at 642. This was not an insignificant finding because lupus can
produce directly and indirectly potentially disabling symptoms in many body systems, including
in the musculoskelatal, respiratory, and mental health areas. The condition, which is
characterized as a chronic inflammatory disease, can be accompanied by severe fatigue and
malaise and can present in a highly variable pattern, producing severe symptoms intermittently
with intervening periods of relative remission. Listing 14.00(D)(1)(a). For a patient with chronic
degenerative changes in her spine, such as Plaintiff, lupus can significantly exacerbate the
orthopaedic symptoms.
The ALl's new finding that Plaintiffs severe impairments included lupus obligated him
to consider whether Plaintiff satisfied the Listing for lupus, found at 14.02. This Listing provides
that the claimant can establish her disability through meeting the requirements of either 14.02A
or 14.02B. Under 14.02A, the claimant must demonstrate the involvement of two or more
organs or body systems and the presence of at least two "constitutional symptoms," which
include severe fatigue, fever, malaise, or involuntary weight loss. Under 14.02B, the claimant
can satisfY the Listing by showing repeated manifestations of lupus with at least two
constitutional symptoms and the presence of marked limitations on activities of daily living,
social functioning, or limitations secondary to deficiencies in concentration, persistence, or pace.
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For reasons unexplained by the ALJ, he addressed only the specific provisions of Listing 14.02A,
finding that Plaintiffs lupus-related respiratory difficulties were not sufficiently severe to meet
the Listing requirement. Tr. at 643. The ALJ did not address the specific provisions of Listing
14.02B. This is hardly an immaterial oversight since the record establishes that Plaintiff
experienced recurrent episodes of lupus "flare-ups," Tr. at 167-68,285,307,324,349,351,354,
355-56,362,364-65,369,446,470-71,485,487-89, and there was considerable evidence that
her various chronic conditions impacted her ability to maintain the persistence and pace
necessary to perform employment, Tr. at 208, 226, 307, 364-65, 411, 446, 477,482.
The ALJ also made a conclusory finding that the combined effects of Plaintiffs
impairments did not equal in severity any of the Listings. The ALJ, while acknowledging that
"the combination of the claimant's impairments does impose some limitations" (which were
unspecified by the AU), stated what Plaintiff s combination of impairments did not produce.
The ALJ found that Plaintiff s combination of impairments did not include an inability to
ambulate in both lower extremities, perform fine or gross motor movements in her upper
extremities, or produce any consistent limitation in spinal motion, reflexes, or straight leg raises.
Tr. at 644. Beyond failing to actually articulate the combined effects of Plaintiffs lupus and
spinal cord disorders, as explicitly directed by this Court on remand, the ALJ did not address in
any detail the issue of whether the combined effect of these impairments might constitute the
medical equivalent of Listings 1.04A or 14.02A or B.
A review of Plaintiffs extensive medical history, covering the period until Plaintiffs date
last insured of December 31, 2006, reveals the significance of the ALl's failure to address in
detail the combined effect of Plaintiffs multi-level degenerative disc disease and lupus. The
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record indicates that as early as November 2000 Plaintiff was documented with various
symptoms ultimately associated with her lupus, including fatigue, pleuritic chest pain, knee and
hand swelling, and an elevated sedimentation rate. Tr. at 158·59. She was seen in August 2001
by Dr. Kesh Hebbar, a board certified family physician and clinical associate professor at the
Medical University of South Carolina (MUS C), who would become her primary treating
physician. Dr. Hebbar documented Plaintiffs significant fatigue, atypical chest pain, fluctuating
mood, and low back pain radiating to her hips and thighs. His differential diagnosis included a
possible lupus "flare·up." Tr. at 307. In December 2001, Plaintiff returned to Dr. Hebbar with
atypical pains in her neck, producing a foreign body sensation. Dr. Hebbar suspected this was
anxiety related. Tr. at 312, 314. Plaintiff continued to complain to Dr. Hebbar about her back
and hip pain and he referred her to the Orthopaedic Department at the Medical University for
further evaluation. This led to a diagnostic work up that included an MRl of the lumbar spine on
November 1,2002, which revealed that Plaintiff had multi-level stenosis of the lumbar spine
with impingement at the L3 nerve root. Tr. at 381.
Dr. Hebbar evaluated Plaintiff again on December 10, 2002, following a visit the
previous day to the MUSC Emergency Room for pleuritic chest pain, a common complication of
lupus. Tr. at 323. Dr. Hebbar's physical examination documented the presence of chronic back
pain with positive straight leg raises on the left side. Dr. Hebbar's note reveals that he discussed
with Plaintiff the natural history of lupus and intermittent nature of the symptoms. Plaintiff was
seen on December 19,2002, in the Orthopaedic Clinic and it was noted that her spinal stenosis
symptoms had improved with the passing of her lupus flare-up. Tr. at 288. This interplay
between Plaintiffs orthopaedic symptoms and her lupus would be repeatedly documented in the
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ensuing years of her medical treatment, producing severe pain during and following the
claimant's lupus "flare-ups."
Dr. Hebbar saw Plaintiff on February 25, 2003, and she complained of persistent back
pain. He documented that her straight leg raises were limited to 40 degrees on the right side. Tr.
at 324. James Island Internal Medicine saw Plaintiff on June 20, 2003, and she was documented
with lupus, rheumatoid arthritis, L-3 nerve root compression, lack of energy, and tendonitis in her
wrist, preventing her from gripping things. Tr. at 167. The MUSC Family Medical Clinic saw
her several times in August 2003 when she complained of hypertension, dizziness, and heart
palpitations. She was noted to be walking with a cane. Tr. at 333,336-37. Concern was
expressed that her lupus could be complicating her elevated blood pressure problems. Tr. at 333.
Plaintiff was documented in June 2004 to have chest pain and a potential lupus "flare-up"
was suspected. Tr. at 349. She was referred in August 2004 to physical therapy for back and hip
pain radiating to her right knee. Tr. at 207. She was noted to be able to perform only limited
housework because of her pain and ambulated with a cane. She was documented to be able to
perform only five to fifteen minutes of exercise at a time and her condition was complicated by
her lupus and rheumatoid arthritis. ld. At the completion of her physical therapy program, on
August 30,2004, the record indicates that the patient was limited in endurance by her pain. Tr.
at 226.
In early 2005, Plaintiff was documented to be complaining about shoulder pain and an
'inability to lift her arm more than 90 degrees. Tr. at 354, 355-56. Dr. Hebbar documented a
positive impingement sign in his evaluation of February 15,2005, and an MRl performed on
February 28,2005, confirmed degenerative changes in the cervical spine at C4-5 and C5-6 with a
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disc osteophyte abutting the spinal cord. Tr. at 373. A physical therapy note of March 7, 2005,
documented Plaintiffs difficulty in turning her neck and observed that "[t]his appears to be nerve
root compression symptoms due to OA [osteoarthritis] changes in the cervical spine." Tr. at 234.
Thus, by early 2005, Plaintiff had documented significant spinal pathologies in two distinct
portions of her spine. First, she had radiographic confirmation of degenerative changes at
multiple levels of her cervical spine that were now producing symptoms in her upper extremities.
Second, Plaintiff had long-documented degenerative disc disease in her lumbar spine that was
producing pain in her lower back and radiating pain to her hips and legs. These degenerative
changes included a radiographically documented abutment of an osteophyte to the spinal cord in
the cervical spine and nerve root compression in the lumbar spine.
In September 2005, Plaintiff experienced another lupus "flare-up" with worsening back
pam. On October 13,2005, Dr. Hebbar documented that she was unable to walk in the mornings
due to stiffness and had limited range of motion in her right hip due to pain. She had positive
straight leg raises on the right and both of her shoulders were stiff. Tr. at 364-65. Plaintiff was
treated with steroids and got a good response, although she developed insomnia from the
medication. Tr. at 366, 490, 493. However, Plaintiff appeared to have another lupus "flare-up"
in December 2005, complaining of back and right leg pain and weakness. Tr. at 487-89. She
also complained of a new onset of chest pain, which was thought to be lupus related. Tr. at 485.
An MRl of December 13,2005, further documented degenerative changes in multiple levels of
the lumbar spine with broad based disc bulges. Tr. at 439.
Dr. Hebbar and an examining consultant, Dr. Daniel Bates, evaluated Plaintiff in late
December 2005. Dr. Bates noted that he had none of the patient's medical records available at
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the time of the evaluation. He documented that the claimant ambulated slowly with a cane, had
difficulty with stairs and overhead lifting, and could cook, dress, and bathe slowly without
assistance. Tr. at 411-12. Plaintiff complained to Dr. Bates of fatigue, sleep disturbance, and
abnormal level of activity. She further informed Dr. Bates of her persistent back, neck, and joint
pain. Tr. at 412. Dr. Bates documented that Plaintiff could walk only for 12 minutes, stand for
20 minutes, and sit for one hour. Tr. at 411. Dr. Bates documented, however, a fairly benign
physical examination, with limited abnormal findings in his assessment of Plaintiff s back. Tr. at
413.
Dr. Hebber, who performed his evaluation on December 28,2005, one day following Dr.
Bate's examination, described a far more troublesome presentation. Plaintiff had persistent
radiating back pain, worse with walking; bilateral lower extremity weakness; and straight leg
raises limited to 60 degrees. Her musculoskeletal pain was continuing as was her recurrent chest
pain. Tr. at 482.
Dr. Hebbar referred Plaintiff back to the Orthopaedic Department at MUSC for a surgical
evaluation of her lumbar spine in early 2006. Dr. John Glasser evaluated her and noted the
patient's persistent complaints of pain that had reportedly worsened in recent months. Tr. at 477.
Dr. Glasser documented that Plaintiffs condition worsened with activity but determined she had
limited surgical options because the surgery would require a three level decompression and
fusion and such surgery had uncertain results. Tr. at 472,476,479-80. Plaintiff was referred to
the Pain Clinic, which provided her temporary relief with injections and blocks but the pain
ultimately returned. Tr. at 474. She also began developing additional symptoms in her left and
right arm and elbow, which improved somewhat with injections. Tr. at 470-71,513. By late
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2006, Plaintiff complained that her back and elbow pain were worse, particularly with activity,
with similar complaints voiced to Dr. Hebbar in early 2007. Tr. at 446, 452.
This record clearly documents the presence of severe impairments arising both from the
Plaintiffs multi-level degenerative disc disease in her cervical and lumbar spine and her lupus.
As is frequently the case, Plaintiff s lupus symptoms were intermittent and exacerbated her
underlying orthopaedic pathologies. In this complicated medical setting, it is essential that the
Commissioner first evaluate all potentially relevant Listings, which in this case includes Listings
1.04A, 14.02A, and 14.028. Since the ALl failed to specifically address the 14.02B Listing,
remand is obviously necessary.
Further, even if a specific Listing is not satisfied, the ALl is still required to analyze the
combined effects of multiple impairments to determine if they constitute the medical equivalent
of one of the Listings. 42 U.S.C. § 423(d)(2)(B); Walker v. Bowen, 889 F.2d 47,50 (4th Cir.
1989). Additionally, "as a corollary to this rule, the ALl must adequately explain his or her
evaluation of the combined effects of the impairments." Walker, 889 F.2d at 50. A conclusory
statement is not sufficient to meet this obligation to explain the combined effects of the
impairments and neither is a statement about what the combined conditions do not produce. If
the ALl continues to find that the combined effect of Plaintiff s severe spinal disorders and her
lupus are not the medical equivalent of either a 1.04A, 14.02A, or 14.02B Listing, the actual
combined effect of these impairments should be thoroughly analyzed on remand and an
explanation provided in the decision utilizing the facts in the record as applied to the specific
requirements of the Listings.
On remand, the ALl should also be mindful of the provisions of the Treating Physician
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Rule, which provides greater deference to the opinions of those who have had a treating
relationship with the claimant. The Court could not help but notice that those with a treating
relationship with Plaintiff appeared to document a far more serious set of limitations associated
with Plaintiffs impairments than the chart reviewers and the consulting examiner. To the extent
that there is some conflict in the opinions of the treating and non-treating physicians, the ALJ
should expressly address the standards set forth in § 404. 1527(c) in determining which opinions
are entitled to the greater weight.
Furthermore, should the ALJ determine that Plaintiff cannot satisfy the requirements of
any Listing, the Commissioner is obligated to consider the combined effects of Plaintiffs various
impairments at every stage of the Five Step Sequential Process. This should include the obvious
potential interplay between Plaintiffs significant multi-level spinal disorders and her lupus, as
well as the documented effect that even minimal physical activity has on exacerbating Plaintiffs
spinal and lupus impairments. See Tr. at 207, 226, 446, 472, 477, 482.
Finally, Plaintiff challenges the decision of the ALJ that the onset date was July 15, 2003,
which was the first date following a prior administrative decision denying an earlier application
for Social Security disability benefits. Plaintiff now seeks to assert an onset date of July 24,
2001, the date she claims was Plaintiff s last day of employment. The Court is informed that
Plaintiff asserted an onset date of August 1, 2000, in her initial disability application and Plaintiff
did not timely file an appeal to an adverse administrative decision denying her benefits. The
Commissioner argues that under the principles of res judicata the claim of Plaintiff is barred by
the final adverse administrative decision, which ran through July 14,2003. The Magistrate Judge
recommended the adoption of the Commissioner's legal position on this matter. (Dkt. No. 25 at
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20-22).

Administrative res judicata is well recognized in Social Security law and is controlled by
20 C.F.R. § 404.957(c)(I), which pennits the application of the doctrine to all prior
administrative detenninations based upon "the same facts and on the same issue or issues." A
review of the record fails to disclose what "facts" were before the Agency at the time of the 2003
adverse administrative decision, and on this limited record the Court cannot detennine if new and
material infonnation was submitted in this application for disability benefits regarding the
disputed time period (July 24,2001- July 14,2003) that was not considered in the earlier
administrative detennination. Therefore, if the Commissioner seeks to invoke the doctrine of res

judicata to limit Plaintiffs recovery in any subsequent decision to the period on and after July
15, 2003, she should submit for the record all information upon which the 2003 adverse
administrative decision was based. 3 The Court will then have an adequate record upon which to
address the res judicata issue.
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 to the Commissioner for further action

3 Plaintiff also argues that since she asserted a different onset date in her later disability
application (July 24,2001) than in her initial disability application (August 1,2000), this should
be treated as a different "issue" for purposes of res judicata. The Court finds this argument
completely unpersuasive.

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consistent with this Order.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

Charleston, South Carolina
August $",2013

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