Parnell v. Commissioner of the Social Security Administration

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS IN PART AND REJECTS IN PART the Magistrate Judge's Report and Recommendation incorporating it by reference, and REVERSES the final decision of the Commission er denying Plaintiff's claim for Disability Insurance Benefits pursuant to sentence four of 42 U.S.C. § 405(g) and REMANDS the case to the Commissioner for further proceedings. Signed by Honorable J Michelle Childs on 9/30/2014. (gnan, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Christopher Samuel Parnell,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of Social Security Administration1,
)
)
Defendant.
)
___________________________________ )

Civil Action No. 4:13-cv-00435-JMC

ORDER AND OPINION

Plaintiff Christopher Samuel Parnell (“Plaintiff”) filed this action seeking judicial review
of the final decision of the Commissioner of the Social Security Administration (the
“Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This matter is before the
court for review of the Report and Recommendation of United States Magistrate Judge Thomas
E. Rogers, III, issued in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02(B)(2)(a) D.S.C. (ECF No. 21.)
The Magistrate Judge recommended affirming the Commissioner’s final decision
denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”). (Id. at 38.) Plaintiff timely
filed objections to the Magistrate Judge’s recommendation. (ECF No. 23.) For the reasons set
forth below, the court ACCEPTS IN PART AND REJECTS IN PART the Magistrate Judge’s
Report and Recommendation and REVERSES the final decision of the Commissioner denying
Plaintiff’s claim for DIB pursuant to sentence four (4) of 42 U.S.C. § 405(g) and REMANDS
the case to the Commissioner for further proceedings consistent with this decision.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin is substituted for Commissioner Michael J.
Astrue as Defendant in this lawsuit.
1

I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A thorough recitation of the relevant factual and procedural background of this matter is
discussed in the Report and Recommendation. (See ECF No. 21 at 6–19.) The court concludes,
upon its own careful review of the record, that the Magistrate Judge’s factual and procedural
summation is accurate and incorporates it by reference. The court will only reference herein
facts pertinent to the analysis of Plaintiff’s claims.
Plaintiff was born on October 23, 1971 and is presently forty-two (42) years old. (ECF
No. 14-5 at 2.) Plaintiff has at least a high school education and past relevant work experience as
a dispatcher, and as an employee in shipping and receiving. (ECF No. 14-2 at 30–31.) He filed
an application for DIB on November 5, 2009, alleging disability since November 16, 2006, due
to congenital scoliosis with compressed discs, degenerative disc disease status post lumbar spinal
fusion and depression. (ECF No. 14-5 at 2; see also ECF No. 14-2 at 22.) Plaintiff’s application
was denied initially and upon reconsideration on August 25, 2010. (ECF No. 14-4 at 10.)
Plaintiff then requested an administrative hearing on September 10, 2010. (Id. at 12.) On June
7, 2011, Plaintiff had a hearing before an Administrative Law Judge (“ALJ”), who found on
August 25, 2011, that Plaintiff was not under a disability as defined by the Social Security Act
(“SSA”) because he was capable of “making a successful adjustment to other work that exists in
significant numbers in the national economy.” (ECF No. 14-2 at 32, 91.) Thereafter, the
Appeals Council denied Plaintiff’s request for review on January 16, 2013, making the ALJ’s
decision the final decision of the Commissioner for purposes of judicial review. (Id. at 2.)
Subsequently, on February 18, 2013, Plaintiff commenced an action in the United
States District Court for the District of South Carolina pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) to obtain judicial review of the Commissioner’s final decision denying Plaintiff’s

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claim for DIB.

(ECF No. 1.)

On August 5, 2014, the Magistrate Judge issued his

recommendation that the Commissioner’s final decision denying Plaintiff’s claim for DIB be
affirmed.

(ECF No. 21.)

Plaintiff filed timely objections to the Magistrate Judge’s

recommendation on August 22, 2014. (ECF No. 23.) The Commissioner filed a response to
Plaintiff’s objections on September 8, 2014. (ECF No. 25.)
II.
A.

LEGAL STANDARD AND ANALYSIS

The Magistrate Judge’s Report and Recommendation
The magistrate judge makes only a recommendation to this court. The recommendation

has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections
are filed, and reviews those portions which are not objected to - including those portions to
which only “general and conclusory” objections have been made - for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
B.

The Court’s Standard of Review
The role of the federal judiciary in the administrative scheme established by the Social

Security Act is a limited one.

Section 405(g) of the Act provides, “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 a preponderance.” Thomas v. Celebrezze, 331 F.2d 541,

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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. See Vitek v. Finch, 438 F.2d
1157 (4th Cir. 1971). The court must uphold the Commissioner’s decision as long as it is
supported by substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1972). “From this 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 agency.” 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 this conclusion is rational.” Vitek, 438 F.2d at 1157–58.
C.

The Magistrate Judge’s Report and Recommendation
In the thoroughly prepared Report and Recommendation, the Magistrate Judge, after

providing an exhaustive review of Plaintiff’s medical history, found that substantial evidence
supported the ALJ’s weighing of the medical evidence.

(See ECF No. 21 at 19–26.)

Specifically, the Magistrate Judge found that the ALJ properly gave limited weight to the
opinions of Dr. David C. Trott2 and Dr. Robert E. Flandry3, which opinions pre-dated Plaintiff's

2 David

C. Trott, M.D., evaluated Plaintiff on November 20, 2006, for “constant right low back
and leg pain with intensity of 9/10.” (ECF No. 14-7 at 5.) Dr. Trott diagnosed Plaintiff with a
“back strain, Lumbar” that was “highly suggestive of a ruptured disk.” (Id.) Dr. Trott further
concluded that Plaintiff “was not medically fit even for light duty at this time.” (Id. at 6.)

3 Robert E. Flandry, M.D., evaluated Plaintiff on December 14, 2006, for “back and right leg
pain” and diagnosed him with “lumbar and thoracic scoliosis secondary to hemi vertebra and L5
radiculitis right secondary to hemi vertebra at L3 and aggravated by work related injury.” (ECF
No. 14-7 at 33–34.) Dr. Flandry concluded that Plaintiff should be treated with an epidural block
and recommended that he switch to a “sedentary or very light duty job with a weight limitation
of 15 pounds lifting on an occasional basis, no repeated lifting of any weights and the ability to
change positions as needed.” (Id. at 34.)
On January 24, 2007, Dr. Flandry opined that
Plaintiff “should stay on a sedentary job” and “[t]he maximum lift for him should be no more
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back surgery on November 13, 2008, that allegedly improved his symptoms. (ECF No. 21 at
21.) The Magistrate Judge next found that the ALJ appropriately attributed little weight to the
opinion of Dr. Patrick B. Mullen4 because he examined Plaintiff on only one occasion and did
not have a treating relationship with Plaintiff. (Id. at 22.) The Magistrate Judge further found
that the ALJ properly attributed some weight, but not controlling weight, to Plaintiff's treating
physician Dr. David L. Shallcross5 because Shallcross’ assessment was not supported “by his
own treatment notes and was inconsistent with the record as a whole.” (Id. at 24-25.) Finally,
the Magistrate Judge did not find error in the ALJ’s failure to give any weight to the opinion of
Dr. Carol Kooistra 6 because she also examined Plaintiff on only one occasion and her
“assignment of a twenty-five percent impairment is consistent with Dr. Horton’s assignment of a
twenty-three percent impairment, with which Dr. Horton released Plaintiff ‘for unlimited

than 10 pounds on occasion, frequent lifts of 5 pounds but no more than 10 per day and the
ability to stand, sit and walk as needed.” (Id. at 31.)
4

Patrick B. Mullen, M.D., P.A., performed a consultative psychiatric evaluation of Plaintiff on
July 29, 2009. (ECF No. 14-7 at 119–122.) Dr. Mullen diagnosed Plaintiff with “chronic pain
disorder, moderate; depression, major, moderate; situational adjustment reaction; congenital
scoliosis; [and] disc herniation.” (Id. at 122.) Dr. Mullen concluded that Plaintiff was “not a
candidate for the active work force.” (Id.) Dr. Mullen treated Plaintiff for depression in July
2010. (ECF No. 14-8 at 102–104.)
5 David

L. Shallcross, M.D., evaluated Plaintiff for pain management on April 29, 2008. (ECF
No. 14-8 at 19–20.)

6 Dr. Carol A. Kooistra, M.D., performed a consultative independent medical evaluation of
Plaintiff on August 3, 2009, and diagnosed him with “chronic low back pain and right L4
radiculopathy status post two level fusion secondary to the combination of disc bulge and
congenital spinal dysmorphism.” (ECF No. 14-7 at 124.) Dr. Kooistra concluded that Plaintiff
had a twenty-five (25) percent impairment of the spine. (Id.)

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activities’ and stated that Plaintiff could work full time.”7 (Id. at 25.)
The Magistrate Judge also found that the ALJ did not mischaracterize and/or misstate the
record as alleged by Plaintiff. (Id. at 28.) In support of this finding, the Magistrate Judge
observed that Plaintiff’s complaints can be attributed to the “ALJ reciting the information
contained in the medical evidence, not interpreting it.” (Id. at 27.)
The Magistrate Judge concluded that the ALJ properly evaluated Plaintiff's credibility
because the ALJ “accepted that Plaintiff had medically determinable impairments that could be
reasonably expected to cause the alleged symptoms, but cited both objective and subjective
evidence detracting from Plaintiff's statements regarding the extent of his limitations.” (Id. at
30.) In this regard, the Magistrate Judge observed that “the ALJ’s discussion of Plaintiff's
credibility is specific and goes beyond mere boilerplate language” and is supported by
substantial evidence. (Id. at 32-33.)
The Magistrate Judge did not agree with Plaintiff that the ALJ committed reversible error
by failing to consider the vocational reports of Dr. William W. Stewart8 and Mr. Randy Adams9,

7 William

Horton, M.D., operated on Plaintiff on November 13, 2008, by performing a
“hemivertebrectomy L3 with posterior spinal fusion L2 to L4 with local graft BMP and PEEK
cage.” (ECF No. 14-7 at 37.)

8 Dr.

William W. Stewart, CRC, CVE, LPC, conducted a vocational and rehabilitation evaluation
of Plaintiff on September 24, 2009. (ECF No. 14-8 at 95–101.) Dr. Stewart concluded that the
following jobs were within Plaintiff’s vocational profile and medically assigned work
restrictions: dispatcher, processing clerk, security monitor, warehouse attendant, processing
machine tender, order clerk, counter clerk, quality control clerk/inspector, and packing machine
tender. (Id. at 100.) Dr. Stewart did however observe that Plaintiff’s “ability to perform and
sustain the jobs is dependent on his being medically and psychologically cleared to work. (Id. at
101.)
9 Randy

L. Adams, M. Ed., CVE, conducted a vocational evaluation of Plaintiff on August 5,
2009. (See ECF No. 14-6 at 62–71.) Adams opined that Plaintiff was “not capable of obtaining
or maintaining any substantial gainful activity” and “he should be considered permanently and
totally disabled from any work.” (Id. at 71.)
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which reports were exhibits in Plaintiff's workers’ compensation case. (Id. at 34.) In response to
Plaintiff’s criticism of the ALJ, the Magistrate Judge stated that “although the ALJ did not
specifically reference these reports, it is evident from the decision that he considered Plaintiff's
workers’ compensation case and the testimony given at the related hearing” and, furthermore,
“any omission of these two reports in the ALJ’s decision constitutes harmless error.” (Id. at 35.)
Finally, the Magistrate Judge found that the ALJ appropriately gave little weight to a
November 9, 2009 order of the South Carolina Workers’ Compensation Commission
(“SCWCC”), which order found Plaintiff to be permanently and totally disabled. (Id. at 36-37.)
The Magistrate Judge determined that the weight given was appropriate because the SCWCC’s
order (1) “was predicated on a medical determination, not functional limitations”; (2) resulted
from a variance in the testimony Plaintiff provided before the SCWCC from that provided to the
ALJ; and (3) was reviewed and considered by the ALJ in the context of the evidentiary
inconsistencies. (Id.)
Based on the foregoing, the Magistrate Judge recommended that this court affirm the
Commissioner’s decision. (Id. at 38.)
D.

Plaintiff’s Objections and the Commissioner’s Response
Plaintiff contends that his objections support reversing the Commissioner’s decision

because he is entitled to disability benefits under the provisions of the SSA or, in the alternative,
a remand of the case for a further hearing. (ECF No. 23 at 10.) Objections to the Report and
Recommendation must be specific. See U.S. v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984)
(failure to file specific objections constitutes a waiver of a party’s right to further judicial review,
including appellate review, if the recommendation is accepted by the district judge); see also
Camby, 718 F.2d at 199 (in the absence of specific objections to the Report of the magistrate

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judge, this court is not required to give any explanation for adopting the recommendation).
Plaintiff first objects to the finding in the Report and Recommendation that substantial
evidence supported the ALJ’s determination that Plaintiff lacked credibility and was thus not
disabled. (ECF No. 23 at 1.) Plaintiff asserts that the Magistrate Judge and the ALJ applied the
wrong standard for determining what constitutes a disability because “periodically walking on a
treadmill, going to church, singing in a gospel group and going to Atlanta for medical treatment
is not substantial evidence that . . . [Plaintiff] is able to work.” (ECF No. 23 at 2 (citing Smith v.
Califano, 637 F.2d 968, 972 (3d Cir. 1981) (“[S]poradic or transitory activity does not disprove
disability.”)).) Therefore, Plaintiff argues that because “[t]he conditions of work are not identical
to those of home life,” his “testimony and the medical evidence about his activities of daily
living does not undercut his claim of disability.” (Id. (citing O’Connor v. Sullivan, 938 F.2d 70,
73 (7th Cir. 1991)).)
Plaintiff’s second objection is to a conclusion in the Report and Recommendation that the
ALJ properly considered the vocational reports of Dr. Stewart and Mr. Adams under Social
10

Security Ruling (“SSR”) 06-3p, 2006 WL 2329939 (Aug. 9, 2006) . (Id. at 3.) Plaintiff asserts

that the ALJ’s decision did not mention at all the reports of Dr. Stewart or Mr. Adams and “[t]he
failure to consider these exhibits is fatal to the . . . [Commissioner]’s reasoning for the denial of .

10 SSR

06-03p clarifies how the Social Security Administration (SSA) considers evidence from
individuals who are not an “acceptable medical source,” such as nurse-practitioners, physicians’
assistants, chiropractors, and therapists among others. SSR 06-03p notes that “non-medical
sources” that have had contact with the claimant in a professional capacity are “valuable sources
of evidence for assessing impairment severity and functioning.” 2006 WL 2329939, at *3. SSR
06-03p notes that non-medical opinions need to be evaluated by the relevant factors in an
Administrative Decision. The case record should reflect the consideration of opinions from
“‘non-medical sources’ who have seen the individual in their professional capacity,” and the ALJ
“generally should explain the weight given to opinions from these ‘other sources,’ or otherwise
ensure that the discussion of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator’s reasoning, when such opinions may have an
effect on the outcome of the case.” Id. at *6.
8

. . [Plaintiff]’s claim. (Id.)
In his third objection, Plaintiff alleges error by the Magistrate Judge in finding that the
ALJ properly considered the SCWCC’s order, which concluded that Plaintiff was permanently
and totally disabled. (Id. at 4.) Plaintiff specifically disagrees with the Magistrate Judge that the
ALJ could afford little weight to the SCWCC’s decision when Fourth Circuit precedent requires
that this determination be given substantial weight. (Id. (citing Bird v. Comm’r of Soc. Sec.
Admin., 699 F.3d 337, 341 (4th Cir. 2012)11).) Plaintiff further disagrees with the Magistrate
Judge that the ALJ properly found that the SCWCC’s decision was based on a “medical
determination, not functional limitations” when the “the rule in South Carolina has long been
‘[t]he generally accepted test of total disability is inability to perform services other than those
that are so limited in quality, dependability, or quantity that a reasonably stable market for them
does not exist.’” (Id. at 5 (citing Watson v. Xtra Mile Driver Training, Inc., 732 S.E.2d 190, 194
(S.C. Ct. App. 2012) (internal citation & quotation marks omitted)).)
In his fourth objection, Plaintiff contends that the Magistrate Judge erred by finding that
the ALJ gave proper weight to the opinions of Plaintiff’s treating and examining physicians.
Plaintiff asserts that this was in error because the finding relies on the incorrect assumption that
the light duty Plaintiff worked was light duty as defined by the SSA. (Id.) In this regard,
Plaintiff asserts that he was “doing the shipping and receiving records” and not “performing a
job that had the light exertional level of sitting limited to two hours out of an eight-hour day;
standing limited to six hours out of an eight-hour day; lifting twenty pounds occasionally; or, ten
pounds frequently.” (Id. at 5–6.) As a result of their failure to understand this light duty

11 In

Bird v. Commissioner of Social Security Administration, the Fourth Circuit addressed
whether evidence created after a claimant’s date last insured could be considered to prove
disability arising before the date last insured. The Court held that medical evidence produced
after the date last insured is generally admissible and relevant if such evidence “permits an
inference of linkage with the claimant’s pre[date last insured] condition.” Bird, 699 F.3d at 341.
9

discrepancy, Plaintiff asserts that it was improper for the ALJ and the Magistrate Judge to give
little weight to or disregard entirely the medical evidence provided by Drs. Trott, Flandry,
Mullen, Shallcross, and Kooistra. (Id. at 6–8.)
In his fifth and final objection, Plaintiff asserts that the Magistrate Judge’s erroneous
findings allow the ALJ to “mischaracterize and misstate the evidence” to disprove Plaintiff’s
disability by focusing on his “failure to use a cane, his use of a treadmill, and his travel to
Atlanta for medical treatment i.e. specialized back surgery.” (Id. at 9.) Plaintiff argues that these
sporadic occurrences do not disprove his disability and he fails to understand why the Magistrate
Judge supported the ALJ’s position. (Id.)
In response to Plaintiff’s objections, the Commissioner asserts that Plaintiff’s objections
consist of arguments previously made in his initial brief and requests that the court “reject
Plaintiff’s objections, adopt the Magistrate Judge’s well-reasoned and thorough Report and
Recommendation, and affirm the Commissioner’s final decision that Plaintiff was not disabled
within the strict confines of the Social Security Act.” (ECF No. 25 at 2.)
E.

The Court’s Review
The court has reviewed Plaintiff’s objections to the Magistrate Judge’s Report and

Recommendation.

After de novo review of Plaintiff’s objections, the court finds that the

Magistrate Judge performed a thorough analysis of the record, including his evaluation of the
medical evidence as it relates to Plaintiff’s objections.

In this regard, the court overrules

Plaintiff’s objections to the Magistrate Judge’s findings that the ALJ (1) properly evaluated
Plaintiff’s credibility and (2) gave appropriate weight to the SCWCC’s order. Specifically, the
court finds that there is evidence in the record to support the ALJ’s assessment of Plaintiff’s
credibility regarding the extent of his limitations. Shively v. Heckler, 739 F.2d 987, 989 (4th

10

Cir. 1984) (“Because he had the opportunity to observe the demeanor and to determine the
credibility of the claimant, the ALJ’s observations concerning these questions are to be given
great weight.”) (citation omitted). The court further finds that both the evidence in the record
and regulatory law support the ALJ’s assessment of weight given to the order of the SCWCC.
See 20 C.F.R. § 404.1504 (“A decision by any nongovernmental agency or any other
governmental agency about whether you are disabled or blind is based on its rules and is not our
decision about whether you are disabled or blind. We must make a disability or blindness
determination based on social security law. Therefore, a determination made by another agency
that you are disabled or blind is not binding on us.”).
However, in evaluating the merits of Plaintiff’s remaining objections which all focus on
some aspect of the ALJ’s weighing of the medical evidence presented by various physicians and
vocational experts, the court finds that the ALJ failed to fully explain the basis for determining
that Plaintiff would not need absences from a workstation due to his impairments or be off task
for twenty (20) percent of an eight hour workday.

This explanation is relevant to the

determination of whether substantial evidence supports the Commissioner’s decision because the
vocational expert testified at the administrative hearing that these limitations would preclude
Plaintiff from working a job existing in the national economy:
Q.

A.
Q.
A.

Hypothetical number two which is the same as hypothetical number one.
The only modification is that this individual would have absences from the
work station. The frequency and the duration of the absences would be in
sole discretion of this hypothetical individual. It would occur on a daily
basis and this person would need to absent themselves from the work
station because of pain and it could be minutes one day, it could be up to
an entire day the next day this would occur on a daily basis. Would that
affect your answer?
It would, your honor.
How.
It would preclude work, the work that I identified or any other work.
...
11

Q.

A.

Dr. Hecker, taking the judges first hypothetical, if you had a hypothetical
individual who would be what I would term to be off task for 20 percent
of an eight hour work day. Would that person be able to perform those
jobs or any other jobs in the national economy?
No, sir.

(ECF No. 14-2 at 134.) Therefore, because of the aforementioned testimony, the court concludes
that the matter should be remanded so that the ALJ can properly specify the medical evidence in
the record that supports a finding as to why Plaintiff does not possess the limitations that the
vocational expert states would make him unable to perform any jobs in the national economy.
III.

CONCLUSION

Upon careful consideration of the entire record, the court ACCEPTS IN PART AND
REJECTS IN PART the Magistrate Judge’s Report and Recommendation incorporating it by
reference, and REVERSES the final decision of the Commissioner denying Plaintiff’s claim for
Disability Insurance Benefits pursuant to sentence four of 42 U.S.C. § 405(g) and REMANDS
the case to the Commissioner for further proceedings consistent with this decision.
IT IS SO ORDERED.

United States District Judge

September 30, 2014
Columbia, South Carolina

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