Rivers v. Commissioner of the Social Security Administration

Filing 29

ORDER: It is ORDERED that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further administrative action. Signed by Magistrate Judge Thomas E Rogers, III on 7/5/2012. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

ANDREW RIVERS,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
COMMISSIONER OF SOCIAL SECURITY,
)
)
Defendant.
)
__________________________________________)

CIVIL ACTION 4:11-01386-TER

ORDER

This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended,
42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of
Social Security, denying Plaintiff's claim for Supplemental Security Income (SSI). The only issues
before the Court are whether the findings of fact are supported by substantial evidence and whether
proper legal standards have been applied. Upon consent of the parties, this case was referred to the
undersigned for the conduct of all further proceedings and the entry of judgment.

I. PROCEDURAL HISTORY
The Plaintiff, Andrew Rivers, filed applications for SSI on November 10, 2009, alleging
disability beginning September 10, 2009. His applications were denied at all administrative levels,
and upon reconsideration. A hearing was held before the Administrative Law Judge (“ALJ”) on
September 28, 2010. The Plaintiff was present and gave testimony. The ALJ issued an unfavorable

decision on October 22, 2010, finding Plaintiff was not disabled. In this decision, the ALJ found
the following:
1.

The claimant has not engaged in substantial gainful activity
since November 10, 2009, the application date (20 CFR
416.971 et seq.).

2.

The claimant has the following severe impairments: post
traumatic stress disorder (“PTSD”) and schizophrenia (20
CFR 416.920(c)).

3.

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 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations;
limited to simple, routine, and repetitive tasks and can have
no ongoing interaction with the public.

5.

The claimant is capable of performing past relevant work as
a dishwasher. This work does not require the performance of
work related activities precluded by the claimant’s residual
functional capacity (20 CFR 416.965).

6.

The claimant has not been under a disability as defined in the
Social Security Act, since November 10, 2009, the date the
application was filed. (20 CFR §§ 416.920(f)).

(Tr. 10-16).
Plaintiff filed a timely request for review of the hearing decision. The Appeals Council
denied the request, thereby making the ALJ’s decision the Commissioner’s final decision for
purposes of judicial review. (Tr. 1-4). The Plaintiff now brings this action asserting the ALJ
committed reversible error by:
1.

Performing an incomplete Listing analysis;
2

2.

Performing a flawed credibility analysis; and,

3.

Failing to explain the weight given to opinion evidence.

(Plaintiff’s memorandum).

II. DISABILITY ANALYSIS
The Commissioner argues that the ALJ’s decision was based on substantial evidence and that
the phrase “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, 390-401, (1971). Under
the Social Security Act, 42 U.S.C. § 405 (g), the scope of review of the Commissioner's final
decision is limited to: (1) whether the decision of the Commissioner is supported by substantial
evidence and (2) whether the legal conclusions of the Commissioner are correct under controlling
law. Myers v. Califano, 611 F.2d 980, 982-83 (4th Cir. 1988); Richardson v. Califano, 574 F.2d
802 (4th Cir. 1978). "Substantial evidence" is that evidence which a "reasonable mind might accept
as adequate to support a conclusion." Richardson, 402 U.S. at 390. Such evidence is generally
equated with the amount of evidence necessary to avoid a directed verdict. Shively v. Heckler, 739
F.2d 987, 989 (4th Cir. 1984). The Court's scope of review is specific and narrow. It does not
conduct a de novo review of the evidence, and the Commissioner's finding of non-disability is to be
upheld, even if the Court disagrees, so long as it is supported by substantial evidence. 42 U.S.C.
§ 405 (g) (1982); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
The general procedure of a Social Security disability inquiry is well established. Five
questions are to be asked sequentially during the course of a disability determination. 20 C.F.R.
§§ 404.1520, 1520a (1988). An ALJ must consider (1) whether the claimant is engaged in

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substantial gainful activity, (2) whether the claimant has a severe impairment, (3) whether the
claimant has an impairment which equals a condition contained within the Social Security
Administration's official listing of impairments (at 20 C.F.R. Pt. 404, Subpart P, App. 1), (4) whether
the claimant has an impairment which prevents past relevant work and (5) whether the claimant's
impairments prevent him from any substantial gainful employment.
Under 42 U.S.C. §§ 423 (d)(1)(A) and 423(d)(5) pursuant to the Regulations formulated by
the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “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.” See 20 C.F.R. § 404.1505(a); Blalock,
483 F.2d at775.
If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R.
§ 404.1503(a). Hall v. Harris, 658 F.2d 260 (4th Cir. 1981). An ALJ's factual determinations must
be upheld if supported by substantial evidence and proper legal standards were applied. Smith v.
Schweiker, 795 F.2d 343, 345 (4th Cir. 1986).
A claimant is not disabled within the meaning of the Act if she can return to her past relevant
work as it is customarily performed in the economy or as the claimant actually performed the work.
SSR 82-62. The claimant bears the burden of establishing her inability to work within the meaning
of the Social Security Act. 42 U.S.C. § 423 (d)(5). She must make a prima facie showing of
disability by showing she was unable to return to her past relevant work. Grant v. Schweiker, 699
F. 2d 189, 191 (4th Cir. 1983).

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Once an individual has established an inability to return to her past relevant work, the
burden is on the Commissioner to come forward with evidence that the plaintiff can perform
alternative work and that such work exists in the regional economy. The Commissioner may carry
the burden of demonstrating the existence of jobs available in the national economy that the plaintiff
can perform despite the existence of impairments which prevent the return to past relevant work by
obtaining testimony from a vocational expert. Id. at 191.

III. FACTUAL BACKGROUND
The Plaintiff was born on March 24, 1969, and was 41 years old on the date of the hearing
before the ALJ. (Tr. 29, 108). Plaintiff has a limited education and past work experience as a
dishwasher.

IV. ARGUMENTS
Plaintiff argues the ALJ failed to explain the weight given to opinion evidence when she
disregarded all of the treatment notes from Charleston Mental Health (“CMH”) in deciding that
Plaintiff did not meet a listing. Plaintiff asserts that the ALJ took issue with the findings of Dr.
Christie in the CMH notes that he suffered from “marked” limitations in the three relevant areas of
mental functioning. Plaintiff argues that the ALJ gave no reason for finding that the opinions of both
“Dr. Christie and Dr. Greco” should be ignored while giving weight to the opinion of a one-time
consulting examiner, Dr. Custer, who provided only limited findings and conclusions. Plaintiff
contends that the notes from CMH indicate that his paranoia and hallucinations have persisted
despite compliance with medication and he consistently presented with a range of limiting

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symptoms. Plaintiff argues the ALJ failed to apply the factors as required when determining the
weight to give a medical opinion. Defendant argues the ALJ properly evaluated the medical opinion
evidence and explained why she gave only limited weight to Dr. Christie’s opinion. Defendant
asserts the ALJ considered Dr. Christie’s opinion that he met the criteria for Listing 12.03 but found
it not persuasive because it was inconsistent with the progress notes and other evidence of record.
The opinion of a physician will be given controlling weight if it is supported by medically
accepted clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the record. 20 C.F.R. § 404.1527(d) (1997); Craig v. Chater, 76 F.3d 585,
589 (4th Cir.1996) (holding that although not binding on the Commissioner, a treating physician's
opinion is entitled to great weight and may be disregarded only if persuasive contradictory evidence
exists to rebut it.); Mitchell v. Schweiker, 699 F.2d 185 (4th Cir.1983) (holding a treating physician's
opinion should be accorded great weight because “it reflects an expert judgment based on a
continuing observation of the patient's condition over a prolonged period of time.”).
If the ALJ determines that a treating physician's opinion should not be afforded controlling
weight, the ALJ must then analyze and weigh all the evidence of record, taking into account the
factors listed in 20 C.F.R. §§ 404.1527 and 416.927(d)(2)-(6). Specifically, pursuant to 20 C.F.R.
§ 404.1527, if the ALJ determines that a treating physician’s opinion is not entitled to controlling
weight, he must then consider the weight to be given to the physician's opinion by applying the
following five factors: (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; and (5) whether the physician

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is a specialist in the area in which he is rendering an opinion. 30 C.F.R. 404.1527(d)(2) (i-ii) and
(d)(3)-(5).
Furthermore, Ruling 96-2p requires that an ALJ give specific reasons for the weight given
to a treating physician's medical opinion. SSR 96-2p, 1996 WL 374188. As stated in Social Security
Ruling 96-2p:
A finding that a treating source medical opinion is not well supported
by medically acceptable clinical and laboratory diagnostic techniques
in the case record means only that the opinion is not entitled to
“controlling weight,” not that the opinion should be rejected. Treating
source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. 404.1527 and
416.927. In many cases, a treating source's opinion will be entitled to
the greatest weight and should be adopted, even if it does not meet the
test for controlling weight.
The opinion of a treating physician must be weighed against the record as a whole when determining
eligibility for benefits. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (2006). Ultimately, it is the
responsibility of the Commissioner, not the court to review the case, make findings of fact, and
resolve conflicts of evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990). As noted above,
however, the Court must not abdicate its duty to scrutinize the record as a whole to determine
whether the Commissioner's conclusions are rational. Oppenheim v. Finch, 495 F.2d 396, 397 (4th
Cir.1974).
The ALJ concluded the following with regard to the evidence and opinion of treating
physician Dr. Scott D. Christie:1

1

It appears Robert Greco completed the form and Scott Christie signed the form. (Tr.
288). Also noted on the form was that “both psychosis and PTSD interplay and make it very
difficult to interact appropriately” along side the conclusion that Plaintiff had marked difficulties
in maintaining social functioning, concentration, persistence or pace or repeated episodes of
decompensation, each of extended duration. (Tr. 288). Since Dr. Christie signed the form, it will
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The claimant’s treating physician at Charleston Area Mental Health,
Dr. John Christie, provided a medical statement dated September 2010
wherein he indicated that the claimant’s impairments meet the criteria
set forth in Listing 12.03. The undersigned notes that the physician’s
opinion in this regard is inconsistent with his own progress notes.
Specifically, the treatment notes show that the claimant’s GAF scores
generally have ranged between 55-59. Likewise, the physician’s
opinions that the claimant suffers from marked restrictions in activities
of daily living, maintaining social functioning, and maintaining
concentration, persistence or pace have been accorded limited weight
as they are inconsistent with the objective medical evidence of record
and the claimant’s presentation upon routine examination.
(Tr. 15).
The ALJ went on to discuss the opinions of the non-treating, non-examining physicians from
the State Disability Determination Services, Lisa Varner, Ph.D and Michael Neboschick, Ph.D., and
gave their opinions “considerable weight” finding their opinions were “well supported by the weight
of the objective medical evidence or record.” (Tr. 15). As to the opinion of the one time consultative
mental examination by Dr. Custer2 on February 16, 2010, the ALJ concluded as follows:
In terms of the claimant’s alleged impairments, he has been diagnosed
with, and received mental health therapy for schizophrenia and PTSD.

be referred to as the opinion of Dr. Christie for purposes of this Order.
2

After the one time consultative examination, Dr. Custer’s prognosis was psychotic
disorder, antisocial personality traits, and cannot rule out borderline intellectual functioning. (Tr.
211-213). As for the prognosis, Dr. Custer stated the following:
This claimant was seen for the purposes of a mental status
examination as ordered by the Disability Determination Service.
He give[s] a history of having some psychotic symptoms. It
appears as though these have responded to medication. As long as
he is compliant with medication it is likely that his symptoms will
stabilize. He may benefit from vocational rehabilitation or to
further his education. I would say that he is not able to manage his
own finances.
(Tr. 213).
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He presented to Dr. Custer for consultative mental status examination
in February 2010. The claimant reported auditory hallucinations and
a history of suicide attempts. He denied having any urges to hurt
himself at the time of the examination, saying that his medication had
helped in that regard. Dr. Custer noted that the claimant answered
questions in a somewhat guarded manner and appeared to be
intentionally witholding information, his motor activity was somewhat
slowed down and his affect was restricted. On cognitive exam, the
claimant was fully alert and oriented. Although he had some difficulty
with portions of the exam, Dr. Custer indicated that he gave a rather
halfhearted effort on parts of the exam.
...
As for the opinion evidence, Dr. Custer concluded that, based on his
examination of the claimant, he had responded well to medication and
his symptoms would likely stabilize so long as he remained compliant
with his medication. The undersigned has accorded considerable
weight to Dr. Custer’s opinions in this regard as they are consistent
with his own clinical findings and well supported by the weight of the
evidence or record.
(Tr. 14-15).
A finding that a treating source medical opinion is not well-supported by medically acceptable
clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in
the case record means only that the opinion is not entitled to “controlling weight,” not that the opinion
should be rejected. Treating source medical opinions still are entitled to deference and must be weighed
using all of the factors provided in 20 CFR 404.1527 and 416.927. In many cases, a treating source's
medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet
the test for controlling weight. In this case, the ALJ noted that he was giving “limited weight” to the
opinion of Dr. Christie but did not discuss which particular findings or opinions he was according

“limited weight” and why.

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Dr. Christie signed a Medical Opinion Form on September 21, 2010, which indicated Plaintiff
met the criteria for Listing 12.03 for Schizophrenia due to Plaintiff’s persistent hallucinations,
emotional withdrawal and/or isolation with marked restriction of activities of daily living; difficulties
maintaining social functioning; and difficulties in maintaining concentration, persistence or pace. It
was indicated that Plaintiff’s symptoms met the listing-level severity and that he suffered from PostTraumatic Stress Disorder. (Tr. 288). Furthermore, the notes from CMH indicated that despite
compliance with his medication, his symptoms remained unchanged (Tr. 282) and he continued to
present with hallucinations and paranoia. The ALJ did not give any reason why he found the notes
inconsistent with the opinion of the treating physician other than to cite to the GAF score.
Additionally, there are no other inconsistent reports for there are no other treating physician’s reports
in the record.
As previously discussed, the medical opinion of a treating physician is entitled to controlling
weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the record. See 20 C.F.R. § 416.927(d)(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 ALJ 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)). The ALJ must, however, explain what weight
is given to a treating physician's opinion and give specific reasons for his decision to discount the
opinion. Social Security Ruling (SSR) 96–2p; see also 20 C.F.R. § 404.1527(d)(2) (outlining factors

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an ALJ must consider when determining what weight to give a treating physician's opinion)3. “Even
if legitimate reasons exist for rejecting or discounting certain evidence, the Secretary cannot do so
for no reason or for the wrong reason.” Richardson v. Dir., Office of Workers' Comp. Programs,
United States DOL, 94 F.3d 164, 168–69 (4th Cir.1996) (quoting King v. Califano, 615 F.2d 1018,
1020 (4th Cir.1980)).
This court rejects the Commissioner’s argument that the ALJ properly evaluated and weighed
Dr. Christie’s opinions. While the Commissioner cites to evidence and arguments in support of the
ALJ rejecting Dr. Christie’s opinion, the ALJ, not the Commissioner, must explain why a treating
physician’s opinion is discounted or rejected. By the Commissioner setting forth the reasons, it is a
post-hoc rationalization, which the Court cannot consider. See Golembiewski v. Barnhart, 322 F.3d
912, 915-16 (7th Cir.2003) (“[G]eneral principles of administrative law preclude the Commissioner's
lawyers from advancing grounds in support of the agency's decision that were not given by the
ALJ.”); Steel v. Barnhart, 290 F.3d 936 (7th Cir.2002) (“But regardless whether there is enough
evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ
to rationally articulate the grounds for her decision and confine our review to the reasons supplied
by the ALJ.”). The ALJ stated only that he accorded limited weight to Dr. Christie’s conclusion
stating that the notes were not consistent with the conclusions. The ALJ appeared to mainly rely on
the GAF scores being in the 50's which indicates moderate limitations not marked limitations without
considering all the other notes and conclusions from CMH.

3

As set forth above, the factors include the length of the treatment relationship; the
frequency of examinations; the nature and extent of the treatment relationship; support of the
opinion afforded by medical evidence; consistency of the opinion with the record as a whole;
and specialization of the treating physician. 20 C.F.R. § 404.1527(d).
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Based on the above, the Court cannot determine if there was substantial evidence to support
the ALJ’s decision based on an improper analysis of the treating physician’s opinions. Therefore, this
case is remanded for the ALJ to reconsider the opinion of Dr. Christie in accordance with 20 C.F.R.
§§ 404.1527(d)(2) (i-ii) and (d)(3)-(5) and Ruling 96-2. The requirement that an ALJ must give
specific reasons for discounting a treating physician's testimony is well-established. The Agency has
ruled that “the notice of the determination or decision . . . must be sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion
and the reasons for that weight.” Social Security Ruling 96-2p. The undersigned cannot address the
remaining issues until the ALJ conducts a proper analysis of the treating physician’s opinions with
regard to Plaintiff’s limitations and his ability to return to his past relevant work. Once the ALJ
conducts a proper analysis with respect to the treating physicians’ opinions, he should reassess
Plaintiff’s credibility and RFC for a proper review. The court refrains from reviewing any further
contentions at this time.4

V. CONCLUSION
Based on the above reasons and pursuant to the power of the Court to enter a judgment
affirming, modifying, or reversing the Commissioner’s decision with remand in social security
actions under sentence four of Sections 205(g) and 1631 (c) (3) of the Social Security Act, 42 U.S.C.
Sections 405 (g) and 1338 (c) (3), it is,

4

See Townsend v. Astrue, 2011 WL 4055402 (D.S.C. Sept. 12, 2011) citing Hancock v.
Barnhart, 206 F. Supp.2d 757, 763-764 (W.D.Va. 2002) (on remand, the ALJ’s prior decision as
no preclusive effect, as it is vacated and the new hearing is conducted de novo);.
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ORDERED that the Commissioner’s decision be reversed pursuant to sentence four of 42
U.S.C. § 405(g) and that the case be remanded to the Commissioner for further administrative action
as set out above.

AND IT IS SO ORDERED.

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
July 5, 2012
Florence, South Carolina

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