Cox v. Commissioner of the Social Security Administration

Filing 28

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 2/16/2017. (gnan )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
THEODORE M. COX,

)
)
Plaintiff,
)
)
-vs)
)
)
NANCY A. BERRYHILL,1
)
Acting Commissioner of Social Security, )
)
Defendant.
)
__________________________________ )

Civil Action No.: 4:15-cv-3265-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 disability insurance benefits (DIB).
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.
I. RELEVANT BACKGROUND
A.

Procedural History
Plaintiff filed an application for DIB on July 27, 2010, alleging inability to work since July

7, 2010. (Tr. 136-42, 210). His claims were denied initially and upon reconsideration. Thereafter,
Plaintiff filed a request for a hearing. A hearing was held on September 14, 2012, at which time
the Plaintiff and a vocational expert (VE) testified. (Tr. 37-60). The Administrative Law Judge

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to
continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

(ALJ) issued an unfavorable decision on December 6, 2012, finding that Plaintiff was not disabled
within the meaning of the Act. (Tr.17-34). Although the Appeals Council denied review on June
21, 2013, this Court reversed the Commissioner’s final decision and remanded for further
administrative action in an Order dated September 17, 2014. (Tr. 1-4, 716-42). On remand, the
ALJ again issued an unfavorable decision, dated June 15, 2015. (Tr. 633-47). Plaintiff requested
review of the ALJ’s hearing decision, but the Appeals Council stated it “found no reason under
[its] rules to assume jurisdiction” in a letter dated November 9, 2015. (Tr. 625-28). This appeal
followed on August 17, 2015.
B.

Plaintiff’s Background
Plaintiff was born on January 9, 1966, and was 49 years old at the time of the alleged

onset. (Tr. 103). Plaintiff completed his education through high school and has past relevant work
experience as an electrician. (Tr. 41-42).
C.

The ALJ’s Decision
In the decision of June 15, 2015, the ALJ made the following findings of fact and

conclusions of law:
1.

The claimant last met the insured status requirements of the Social Security
Act on December 31, 2014.

2.

The claimant did not engage in substantial gainful activity during the period
from his alleged onset date of July 7, 2010 through his date last insured of
December 31, 2014 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: status post cervical surgeries and left shoulder surgery,
degenerative disc disease, migraine headaches, sensorineural hearing loss,
vertigo, seizures, plantar fascial fibisromas, ulnar nerve entrapment, and
depression (20 CFR 404.1520(c)).

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4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a)
except the claimant cannot climb, crawl, or balance. The claimant can
perform no more than frequent fingering with the non-dominant arm and
hand. The claimant cannot perform overhead reaching with the nondominant arm. The claimant can sit and stand at will, exercised once each
work hour for no more than 5 minutes without leaving the workstation. The
claimant cannot have exposure to industrial hazards. The claimant can
perform work in a low stress setting with no more than occasional decision
making or changes in the work setting, and no interaction with the general
public.

6.

Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on January 9, 1966, and was 48 years old, which is
defined as a younger individual age 18-44, on the date last insured (20 CFR
404.1563).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Through the date last insured, considering the claimant’s age, education,
work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that the claimant
could have performed (20 CFR 404.1569, 404.1569(a)).

11.

The claimant was not under a disability, as defined in the Social Security
Act, from July 7, 2010, the alleged onset date, through December 31, 2014,
the date last insured (20 CFR 404.1520(g) and 416.920(g)).

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(Tr. 635-46).

II. DISCUSSION
The Plaintiff argues that the ALJ erred in his decision, and that reversal and remand are
appropriate in this case. Specifically, Plaintiff raises the following issues in his brief, quoted
verbatim:
I.

The ALJ erroneously characterized “the opinion of Dr. Weissglass” as “one
typically reserved to the Commissioner” rather than as a medical opinion,
failed to properly evaluate the opinions from this source, and failed even to
specify the weight assigned to them as required.

II.

The ALJ’s evaluation of Mr. Cox’s subjective complaints and credibility is
deeply flawed and cannot be sustained.

III.

Despite contending in the most recent decision that Mr. Cox’s migraine
headaches are a severe impairment, the ALJ failed to meaningfully evaluate
or account for the impact of these debilitating headaches on his RFC.

IV.

The ALJ did not carry the Commissioner’s burden at step five of the
sequential evaluation process.

(Plaintiff’s brief).
The Commissioner argues that the ALJ’s decision is supported by substantial evidence.
A.

LEGAL FRAMEWORK
1.

The Commissioner's Determination–of–Disability Process

The Act provides that disability benefits shall be available to those persons insured for
benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42
U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any

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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 at least
12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations
promulgated under the Act have reduced the statutory definition of disability to a series of five
sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76
L.Ed.2d 66 (1983) (discussing considerations and noting “need for efficiency” in considering
disability claims). An examiner must consider the following: (1) whether the claimant is engaged
in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;2 (4) whether such impairment
prevents claimant from performing PRW;3 and (5) whether the impairment prevents him from
doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five

2

The Commissioner's regulations include an extensive list of impairments (“the Listings”
or “Listed impairments”) the Agency considers disabling without the need to assess whether
there are any jobs a claimant could do. The Agency considers the Listed impairments, found at
20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20
C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of
the Listed impairments for at least one year, he will be found disabled without further
assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant
must establish that his impairments match several specific criteria or be “at least equal in severity
and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530,
110 S.Ct. 885, 107 L.Ed.2d 967 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct.
2287, 96 L.Ed.2d 119 (1987) (noting the burden is on claimant to establish his impairment is
disabling at Step 3).
3

In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant's past relevant work to make a finding at the
fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20
C.F.R. § 404.1520(h).
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steps” of the Commissioner's disability analysis. If a decision regarding disability may be made
at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if
Commissioner can find claimant disabled or not disabled at a step, Commissioner makes
determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is
customarily performed in the economy or as the claimant actually performed the work. See 20
C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82–62 (1982). The claimant
bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. §
423(d) (5).
Once an individual has made a prima facie showing of disability by establishing the
inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence
that claimant can perform alternative work and that such work exists in the regional economy. To
satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the
existence of jobs available in the national economy that claimant can perform despite the existence
of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th
Cir.2002). If the Commissioner satisfies that burden, the claimant must then establish that he is
unable to perform other work. Hall v. Harris, 658 F.2d 260, 264–65 (4th Cir.1981); see generally
Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (regarding
burdens of proof).
2.

The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope
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of that federal court review is narrowly-tailored to determine whether the findings of the
Commissioner are supported by substantial evidence and whether the Commissioner applied the
proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S.
389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir.1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the
evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir.1971); see Pyles v. Bowen, 849 F.2d
846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.1986)). Rather,
the court must uphold the Commissioner's decision if it is supported by substantial evidence.
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir.2005). Thus, the court must carefully scrutinize the entire record to assure there is a
sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek,
438 F.2d at 1157–58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.1964). If there
is substantial evidence to support the decision of the Commissioner, that decision must be affirmed
“even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775
(4th Cir.1972).
B.

ANALYSIS
Medical Opinions
Plaintiff argues that the ALJ failed to properly evaluate the opinion of Dr. Weissglass. He

argues that the ALJ erroneously characterized the opinion as one typically reserved to the
Commissioner and that he failed to specify the weight given to the opinion.
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In his second hearing decision, during his recitation of the medical records, the ALJ
discussed the examination done by Dr. Weissglass:
In October 2012, Barry Weissglass, M.D., examined the claimant (Exhibit 25F).
Upon examination, the claimant generally had normal findings, including normal
findings in his left ear, normal motor findings, no spasm in his back, normal
vascular findings, no neck spasm, and normal extremity findings, despite a slight
antalgic gait, poor light reflex in the right ear, and tenderness in his lumbar spine.

(Tr. 641). Later in the decision, the ALJ addressed Dr. Weissglass’s opinion as follows:
The opinion of Dr. Weissglass is one typically reserved to the Commissioner, and
is not consistent with the claimant’s wide range of activities of daily living, his
overall treatment records showing controlled symptomology with treatment and
medication, his generally normal examination findings upon examination as
evidenced in his treatment records, and the lack of any severe abnormal findings
in his neck or back subsequent to his re-fusion surgery and instead improvement
in pain symptoms thereafter (Exhibit 25). Moreover, Dr. Weissglass is not a
treating physician, and instead examined the claimant on only one occasion.
(Tr. 643). The ALJ did not set forth Dr. Weissglass’s actual opinions or assign a weight to those
opinions.
The Social Security Administration’s regulations provide that “[r]egardless of its source,
we will evaluate every medical opinion we receive.” 20 C.F.R. § 404.1527(c). Medical opinions
are “statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of” the claimant’s impairment(s), including the claimant’s
“symptoms, diagnosis or prognosis, what [he or she] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). However, the ultimate
decision on whether a claimant meets the statutory definition for disability is an administrative
decision that is always reserved to the Commissioner. See Morgan v. Barnhart, 142 Fed. Appx.
716, 721–722 (4th Cir.2005) (distinguishing between medical opinions and legal conclusions by
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physicians that claimant is unable to work or disabled, finding the latter are matters reserved to the
Commissioner and are not entitled to heightened evidentiary value); 20 C.F.R. §§ 404.1527(e) and
416.927(e).
On October 25, 2012, board-certified occupational medicine specialist Barry Weissglass,
M.D., conducted an independent medical evaluation and supplied a thorough, narrative report (Tr.
608-13) and Treating Physician’s Statement form. (Tr. 614-22). While he did include a final
assessment that “the combination of impairments from his multiple orthopedic and medical
problems are such that, to a medical certainty, he could not pursue gainful employment,” (Tr. 613),
Dr. Weissglass also included opinions regarding Plaintiff’s functional limitations. Dr. Weissglass
opined that Plaintiff “should avoid activities that require repetitive use of the back [or neck]
muscles, holding the back [or neck] steady in one position for long periods of time” or prolonged
sitting or standing. (Tr. 613). He opined that Plaintiff “should alternate positions frequently.” Id.
He described Plaintiff as limited in his ability to use his shoulder, elbow, and hands. Id. Dr.
Weissglass further opined that Plaintiff could sit less than two hours in an eight hour workday,
would need to change positions every 15-20 minutes, and would require unscheduled breaks every
30-45 minutes. (Tr. 617). He found Plaintiff was limited to occasional use (defined as up to 1/3
of an 8-hour workday) of the left hand for handling (gross manipulation); was limited to occasional
fingering (fine manipulation) bilaterally; had a 50% or more limitation in the ability to concentrate,
remain alert, think clearly, or otherwise attend to work tasks due to pain, fatigue, sleepiness,
dizziness, nausea, lightheadedness, and the side effects of prescription medications; and would be
expected to be absent from work four or more days per month due to episodes of increased
symptoms and/or the need to attend frequent medical appointments. (Tr. 616-22). Therefore, given
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the numerous functional limitations discussed by Dr. Weissglass, the ALJ erred in stating that “the
opinion of Dr. Weissglass is one typically reserved to the Commissioner.” (Tr. 643).
In addition, presumably because he dismissed Dr. Weissglass’s opinion as one reserved for
the Commissioner, the ALJ failed to assign a weight to the opinion. An ALJ is required to assign
weight to every medical opinion in a claimant’s record. 20 C.F.R. §§ 404.1527(c) (“Regardless
of its source, we will evaluate every medical opinion we receive.”). A court “cannot determine
if findings are unsupported by substantial evidence unless the Secretary explicitly indicates the
weight given to all of the relevant evidence.” Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir.
1984). A failure to do so requires remand. Id. at 235-36 (“Unless the Secretary has analyzed all
evidence and has sufficiently explained the weight he has given to obviously probative exhibits,
to say that his decision is supported by substantial evidence approaches an abdication of the court's
‘duty to scrutinize the record as a whole to determine whether the conclusions reached are
rational.’”); see also Barker-Evans v. Commissioner, No. 8:11-cv-01251-DCN, 2013 WL 3208315
(D.S.C. June 24, 2013) (noting that the ALJ’s failure to assign a specific weight to a medical
opinion “transcends one of inadequate explanation”).4
This matter is remanded for proper analysis of Dr. Weissglass’s opinion consistent with the
above.
Credibility
The ALJ should also reevaluate Plaintiff’s credibility. Under Craig v. Chater, 76 F.3d 585,

4

The court notes that, even though the ALJ assigned weight to the other opinions in the
record, as with Dr. Weissglass’s opinion, he did not actually identify what those opinions were.
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591–96 (4th Cir.1996), subjective complaints of pain are evaluated in two steps. First, there must
be documentation by objective medical evidence of the presence of an underlying impairment that
would reasonably be expected to cause the subjective complaints of the severity and persistence
alleged. Not until such underlying impairment is deemed established does the fact-finder proceed
to the second step: consideration of the entire record, including objective and subjective evidence,
to assess the credibility of the severity of the subjective complaints. See also 20 C.F.R. §
404.1529(b); Social Security Ruling (SSR) 96–7p, 61 Fed.Reg. 34483–01, 34484–85.
The ALJ may choose to reject a claimant's testimony regarding his pain or physical
condition, but he must explain the basis for such rejection to ensure that the decision is sufficiently
supported by substantial evidence. Hatcher v. Sec'y, Dep't of Health & Human Servs., 898 F.2d
21, 23 (4th Cir.1989) (quoting Smith v. Schweiker, 719 F.2d 723, 725 n. 2 (4th Cir.1984)). “The
determination or decision must contain specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and
the reasons for that weight.” SSR 96–7p. Furthermore, as stated above, when conflicting evidence
is presented, it is up to the ALJ to resolve those inconsistencies. Hays v. Sullivan, 907 F.2d, 1453,
1456 (4th Cir.1990). It is not the responsibility of this court to determine the weight of the
evidence. Id.
In discussing Plaintiff’s activities of daily living, the ALJ states that Plaintiff’s
allegations as to being disabled physically and mentally are belied by his activities
of daily living, namely his ability to go for walks and perform light housework,
such as the dishes and dusting (Exhibits 3E; 9E; 11E). He has no problem with
personal care, such as dressing, bathing, caring for his hair, shaving, feeding his
self [sic], or using the toilet. He is able to read, go to sports events, fish and play
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softball with his children despite some limitation in enjoyment in these activities
due to physical pain rather than mental symptoms (Exhibit 3E). He goes to church,
he talks to friends and family on the phone once or twice a day, and he is able to
go grocery shopping one [sic] a week in public (Exhibit 11E).
(Tr. 644).
In finding Plaintiff not credible, the ALJ relied, in part, on a 2010 Function Report (Tr.
218-25) and failed to acknowledge Plaintiff’s more recent testimony. Plaintiff testified that lifting
a gallon of milk caused pain his chest and neck, and he must avoid looking down for these same
reasons. (Tr. 48-49). He has difficulty buttoning shirts. (Tr. 49). Walking distances is difficult due
to his foot tumors and dizziness. (Tr. 51). Sitting in ordinary chairs is also difficult, so Plaintiff
uses a couch at his home and props up his feet. (Tr. 51-52). He is neither legally nor medically
permitted to drive. (Tr. 52). His activities of daily living included watching television and making
sandwiches, whereas his teenage daughter, neighbor, and friends generally did the house and yard
work. (Tr. 52-53). He used to enjoy reading, but it had become difficult for him to read the
newspaper due to weak vision and headaches. (Tr. 53). Even the ALJ’s reliance on the earlier,
2010 report is selective and does not fully describe Plaintiff’s activities as reported by him.
Plaintiff noted that his daughters were taking care of the dogs and cooking dinner, and that he
could no longer “cut the grass, clean house,” or engage in other activities he once did. (Tr.
218-219). He could only do light dusting and put dishes away for brief periods. (Tr. 220).
“[W]hile the ALJ does not have to discuss every piece of evidence, the ALJ cannot cherry-pick
the evidence that supports his decision to the exclusion of evidence favorable to the claimant.”
Dowell v. Colvin, No. 1:12-cv-1006, 2015 WL 1524767, *4 (M.D.N.C. Apr. 2, 2015). The ALJ
is obligated to consider all evidence, not just that which is helpful to his decision. Gordon v.

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Schweiker, 725 F.2d 231, 235-36 (4th Cir.1984) and Murphy v. Bowen, 810 F.2d 433, 437 (4th
Cir.1987)). Thus, on remand, the ALJ should reevaluate Plaintiff’s credibility with a full
consideration of Plaintiff’s activities of daily living.5
Migraine Headaches
Although the ALJ found that Plaintiff suffered from the severe impairment of migraine
headaches (Tr. 635), other than a finding that the migraine headaches did not meet a listing (Tr.
636) and a conclusory statement that Plaintiff received only conservative treatment for his
migraine headaches (Tr. 640), the ALJ does not discuss these headaches or their impact on
Plaintiff’s ability to engage in sustained work activities. An ALJ’s RFC evaluation must “‘include
a narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities,
observations)’” and the ALJ is required to “discuss the claimant’s ability to ‘perform sustained
work activities in an ordinary work setting’ on a regular work schedule.” Flynn v. Colvin, Case
No. 5:13-cv-00597-DCN, 2014 WL 4199054, at *8-*9 (D.S.C. Aug. 20, 2014) (quoting SSR
96-8p, 1996 WL 374184 (S.S.A. 1996)).

Further, “‘the combined impact of [multiple]

impairments shall be considered throughout the disability determination process,’ and 20 C.F.R.
§ 416.923 (1989) promises that ‘we will consider the combined effect of all your impairments.’”
Sullivan v. Zebley, 493 US 521, 535 n.16 (1990); see 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
On remand, the ALJ should include a discussion of Plaintiff’s migraine headaches to the extent

5

Although not discussed herein, it is noted that Plaintiff also alleges that the ALJ erred in
his credibility analysis with respect to improvement, hearing, dizziness, and nausea, and
conservative nature of treatment. The ALJ should take these arguments into consideration as
well.
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allowed by the record.

Vocational Evidence
Finally, to the extent the ALJ’s consideration of the opinion of Dr. Weissglass, Plaintiff’s
crediblity, and Plaintiff’s migraine headaches, results in a new RFC, the vocational analysis will
necessarily be different. Therefore, it is unnecessary to address this allegation of error.
III. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner’s
decision in the instant case. The court cannot, however, conduct a proper review based on the
record presented. 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 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 forth above.

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
February 16, 2017
Florence, South Carolina

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