Messer v. Commissioner of the Social Security Administration

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATION: It is hereby ORDERED that the Magistrate Judge's Report (ECF No. 17 ) is adopted and incorporated herein; Plaintiff's objections (ECF No. 19 ) are overruled; and the Commissioner's final decision denying benefits is affirmed. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 9/25/2018. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
John Messer,

) Civil Action No.: 4:17-1212-BHH
)
Plaintiff, )
)
v.
)
ORDER
)
Nancy A. Berryhill,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant. )
______________________________ )
This is an action brought pursuant to 42 U.S.C. § 405(g) seeking judicial review of

the Acting Commissioner of Social Security’s (“Commissioner”) final decision, which denied
Plaintiff John Messer’s (“Plaintiff”) claim for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”.) The record includes the report and recommendation
(“Report”) of United States Magistrate Judge Thomas E. Rogers, III, which was made in
accordance with 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.).
In his Report, the Magistrate Judge recommends that the Court affirm the
Commissioner’s final decision.

Plaintiff filed objections to the Report, and the

Commissioner filed a reply to those objections. See 28 U.S.C. § 636(b)(1) (providing that
a party may object, in writing, to a Magistrate Judge’s Report within 14 days after being
served a copy). For the reasons stated below, the Court adopts the Magistrate Judge’s
Report and affirms the Commissioner’s final decision denying benefits.
BACKGROUND
Plaintiff filed an application for DIB on August 26, 2013, and an application for SSI
on October 10, 2013, alleging inability to work since February 12, 2013. His applications

were denied initially and upon reconsideration, and Plaintiff requested a hearing before an
administrative law judge (“ALJ”). A hearing was held on October 13, 2015, at which
Plaintiff, who was represented by counsel, appeared and testified. The ALJ also heard
testimony from a vocational expert (“VE”). On December 24, 2015, the ALJ issued a
decision denying Plaintiff’s claims. Plaintiff filed a request for review, which the Appeals
Council denied on March13, 2017, making the ALJ’s decision the Commissioner’s final
decision for purposes of judicial review. Plaintiff filed this action seeking judicial review of
the Commissioner’s final decision on May 10, 2017.
Plaintiff was 44 years old on his alleged onset date. He has a limited education and
past relevant work as a salvage parts worker and a mechanic. Plaintiff alleges disability
originally due to degenerative discs in his back and two back surgeries.
STANDARDS OF REVIEW
I.

The Magistrate Judge’s Report
The Court conducts a de novo review to those portions of the Report to which a

specific objection is made, and this Court may accept, reject, or modify, in whole or in part,
the recommendations contained in the Report. 28 U.S.C. § 636(b)(1). Any written
objection must specifically identify the portion of the Report to which the objection is made
and the basis for the objection. Id.
II.

Judicial Review of a Final Decision
The federal judiciary plays a limited role in the administrative scheme as established

by the Social Security Act. Section 205(g) of the Act provides that “[t]he findings of the
Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall

2

be conclusive . . . .” 42 U.S.C. § 405(g). “Consequently, judicial review . . . of a final
decision regarding disability benefits is limited to determining whether the findings are
supported by substantial evidence and whether the correct law was applied.” Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). “Substantial evidence” is defined as:
evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is
“substantial evidence.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebreeze, 368
F.2d 640, 642 (4th Cir. 1966)). In assessing whether substantial evidence exists, the
reviewing court should not “undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of” the agency. Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (alteration in original).
DISCUSSION
I.

The Commissioner’s Final Decision
The Commissioner is charged with determining the existence of a disability. The

Social Security Act, 42 U.S.C. §§ 301-1399, defines “disability” as the “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 result in death or which has lasted or can expected to last for a continuous
period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). This determination
involves the following five-step inquiry:
[The first step is] whether the claimant engaged in substantial gainful
employment. 20 C.F.R. § 404.1520(b). If not, the analysis continues to
3

determine whether, based upon the medical evidence, the claimant has a
severe impairment. 20 C.F.R. § 404.1520(c) If the claimed impairment is
sufficiently severe, the third step considers whether the claimant has an
impairment that equals or exceeds in severity one or more of the impairments
listed in Appendix I of the regulations. 20 C.F.R. § 404.1520(d); 20 C.F.R.
Part 404, subpart P, App. I. If so, the claimant is disabled. If not, the next
inquiry considers if the impairment prevents the claimant from returning to
past work. 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a) If the answer
is in the affirmative, the final consideration looks to whether the impairment
precludes that claimant from performing other work.
Mastro, 270 F.3d at 177 (citing 20 C.F.R. § 416.920).
If the claimant fails to establish any of the first four steps, review does not proceed
to the next step. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). The burden of
production and proof remains with the claimant through the fourth step. However, if the
claimant successfully reaches step five, then the burden shifts to the Commissioner to
provide evidence of a significant number of jobs in the national economy that the claimant
could perform, taking into account the claimant’s medical condition, functional limitations,
education, age, and work experience. Walls, 296 F.3d at 290.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since February 12, 2013, the alleged disability onset date.

Next, the ALJ

determined that Plaintiff has the following severe impairments: degenerative disc disease
of the lumbar spine status post laminectomy. However, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the
Listings”). With regard to residual functional capacity (“RFC”), the ALJ found that Plaintiff
could perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) with the
following additional limitations: he can never climb ladders, ropes, or scaffolds; he can
4

occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; he must avoid
concentrated exposure to excessive vibration and hazards including the use of moving
machinery and exposure to unprotected heights. The ALJ found that Plaintiff was unable
to perform his past relevant work, but that, considering his age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national
economy that he could perform. Therefore, the ALJ found that Plaintiff was not disabled
from the alleged onset date through the date of the decision.
II.

The Court’s Review
In this action, Plaintiff asserts that the ALJ made multiple errors in evaluating the

medical opinion evidence from Plaintiff’s treating physicians: Dr. Monroe, Dr. Satterthwaite,
and Dr. Bishop. According to Plaintiff, the ALJ gave only conclusory statements explaining
the decision to give little weight to these treating opinions, and the ALJ failed to properly
consider the fact that the opinions are consistent with one another. In addition, Plaintiff
contends that it was error for the ALJ to rely on non-examining opinions over the three
consistent treating physicians’ opinions.
The Magistrate Judge considered Plaintiff’s arguments and found them to be without
merit, ultimately concluding that substantial evidence supports the ALJ’s findings and that
the ALJ conducted a proper analysis of the medical opinion evidence in accordance with
the applicable law, regulations, and policies. In so finding, the Magistrate Judge quoted
extensively from the ALJ’s decision and determined that the ALJ did not make conclusions
about the weight given to the treating physicians’ opinions without providing a discussion
of the other record evidence, contrary to Plaintiff’s argument otherwise.
Plaintiff filed objections to the Magistrate Judge’s Report, essentially repeating his
5

arguments but also asserting that the Magistrate Judge overlooked Plaintiff’s claim that the
ALJ failed to acknowledge the positive findings in the opinion evidence and failed to
adequately explain how Plaintiff’s course of treatment diminished the credibility of the
treating physicians’ opinions. Plaintiff also asserts that the Magistrate Judge failed to
address the fact that all three treating physicians’ opinions were consistent with one
another as well as the fact that the only opposing opinions in this case came from nonexamining state agency examiners who provided their opinions without the benefit of Dr.
Monroe’s, Dr. Satterthwaite’s, or Dr. Bishop’s consistent opinions.
As the Magistrate Judge explained, in evaluating a claimant’s application for
benefits, the Commissioner must evaluate all medical opinions and determine the weight
to be accorded to each opinion based on the relationship between the physician and the
claimant. See 20 C.F.R. §§ 404.1527 and 416.927 (2010). Under the regulations in effect
at the time relevant to this action, the so-called “treating physician rule” directed the
Commissioner to give a treating physician’s opinion controlling weight if it is well-supported
by medically acceptable clinical evidence and not inconsistent with other substantial
evidence of record. 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2); Mastro, 270 F.3d at
178. However, “if a treating 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. Charter, 76 F.3d 585, 590 (4th Cir. 1996). If the Commissioner decides
to give less than controlling weight to the opinion of a treating physician, the Commissioner
still must weigh the opinions of the treating physician in light of a broad range of specifically
identified factors, including the examining relationship, the nature and extent of the
treatment relationship, the supportability of the opinions in the medical record, their
6

consistency, and whether the treating physician is a specialist. 20 C.F.R. § 404.1527(c)(1)(5).
Here, as the Magistrate Judge noted, the ALJ explained the decision to give little
weight to the opinions of Drs. Monroe, Satterthwaite, and Bishop as follows:
As to Dr. Monroe, the ALJ stated:
Dr. Monroe completed a Medical Source Statement for the claimant dated
September 5, 2013. Dr. Monroe opined that the claimant’s pain would
constantly interfere with his attention and concentration; and that he
constantly experiences severe pain (Ex. 17F, pg. 4). The undersigned gives
little weight to the opinion of Dr. Monroe, as it is not supported with relevant
evidence and not consistent with the record as a whole.
(Tr. at 24.)
Next, as to Dr. Satterthwaite, the ALJ stated:
On December 28, 2013, Dr. Satterthwaite completed a Physician
Questionnaire for the claimant. He opined that the claimant was unable to
engage in more than sedentary work; that he would have to “rest away” from
work for more than an hour; that he would miss work more than 3 days of
work per month; and that he would have problems with attention and
concentration (Ex. 11F, pgs. 1-2). However, on September 21, 2015, Dr.
Satterthwaite provided a Medical Source Statement for the claimant. He
reported that he treated the claimant from March 26, 2013[, to] December 31,
2013. Dr. Satterthwaite reported that the claimant had a history of spinal
fusion surgery and that on clinical examination; he had weakness in the
dorsiflexion of left foot and decreased sensation in the L5-S1 distribution. He
opined that the claimant would not be able to return to work at his previous
occupation, which was a physical job. He opined that during the time-period
he treated the claimant, he would have been limited to no more than
sedentary work, and would have had interruptions to his concentration,
frequently enough to interrupt tasks. The undersigned finds significant th[at]
Dr. Satterthwaite stated, “I only saw him on a few occasions following his
surgery so I do not know to what extent his condition improved.” (Ex. 34F, pg.
1). The undersigned finds material the contradictions between Dr.
Satterthwaite’s statements. Nevertheless, the undersigned gives little weight
to his opinions as they are inconsistent with each other and the evidence of
record.
(Tr. at 24-25 (emphasis in original).)
7

Third, as to Dr. Bishop, the ALJ stated:
On June 3, 2014, Dr. Bishop completed a Physician Questionnaire for the
claimant. He opined that the claimant was unable to engage in more than
sedentary work; that he would have to rest away from work for more than an
hour; that he would miss work more than 3 days of work per month; that he
would have problems with attention and concentration (Ex. 21F, pgs. 1-2).
The undersigned gives little weight to the opinion of Dr. Bishop, as it is not
supported by the relevant evidence and not consistent with the record as a
whole.
(Tr. at 25.)
Plaintiff complains that these explanations are too general and are insufficient to
satisfy the ALJ’s duty to explain the reasons for giving little weight to the treating
physicians’ opinions. After review, the Court is not convinced by Plaintiff’s arguments. As
the Magistrate Judge explained in his Report by quoting several pages of the ALJ’s
decision, the above passages referring to the opinions of Drs. Monroe, Satterthwaite, and
Bishop do not stand alone; rather, before weighing these physicians’ medical source
statements and questionnaires, the ALJ extensively summarized and considered the other
evidence of record, including other evidence from the treating physicians, and the ALJ’s
decision as a whole clearly outlines other substantial evidence that the ALJ found
inconsistent with the medical source statements and questionnaires from Drs. Monroe,
Satterthwaite, and Bishop. For example, the ALJ explained that after Plaintiff’s third
surgery, treatment records “show that the claimant was doing well 11 days postoperatively,” and “during his 6 week follow-up post-operative visit, his treatment provider
noted that he had no complications and that his symptoms ha[d] improved.” (Tr. at 22-23.)
The ALJ referred to Dr. Monroe’s report dated November 25, 2013, “that the claimant had
shown improvement in his activity level and was doing well.” (Tr. at 23.) The ALJ noted
8

that Plaintiff “reported that he had decreased pain and improvement in quality of life” on
December 3, 2013. (Id.) The ALJ noted that Plaintiff received physical therapy, but in a
treatment note dated November 3, 2013, his treatment provider noted that he had not
attended since October 14, 2013. (Id.) The ALJ also specifically remarked about a medical
note dated April 23, 2014, where Dr. James Hays reported that Plaintiff was “discharged
from Carolina Center for Advanced Management of Pain for violating his pain management
agreement.” (Id. (emphasis in original.)
Next, the ALJ explained the results of radiographs from October of 2014 and
remarked about a treatment note dated November 5, 2014, where Dr. Monroe opined that
claimant’s MRI “revealed typical post-operative changes.” (Id. (emphasis in original).) The
ALJ explained that Dr. Monroe referred Plaintiff for medical pain management, and that
treatment records dated February 17, 2015, indicated that Plaintiff’s pain was considered
well-controlled on his current medical regimen. The ALJ noted that on April 2, 2015, at a
follow-up visit with Dr. Bishop, it was reported that Plaintiff was doing well with his current
regimen. The ALJ also noted that on June 1, 2015, Dr. Moore reported that Plaintiff’s
operative pain was mild 21 months post-operation, and on August 12, 2015, Dr. Smith
reported that Plaintiff was doing well and was back baseline, and that his medications were
helping.
Based on the totality of the evidence outlined by the ALJ, the Court has no difficulty
in determining that the ALJ gave sufficient reasoning for his decision to give the treating
physicians’ opinions little weight. Although Plaintiff is correct that the treating physicians’
opinions were consistent in indicating that Plaintiff’s pain would interfere with his attention
and concentration, the ALJ offered an adequate explanation for the determination that other
9

relevant evidence of record effectively undermined those opinions. In addition, the Court
disagrees with Plaintiff that the ALJ overlooked positive findings and failed to explain how
Plaintiff’s course of treatment diminished the credibility of the treating physicians’ opinions.
Rather, it is clear that the ALJ recognized that Plaintiff suffered from a severe impairment
that would cause some degree of pain. Nevertheless, after evaluating all of the evidence,
the ALJ remarked that the “record does not show signs of progressive deterioration that
reasonably might be expected when an individual experiences intense and continuous pain
or leads an inactive lifestyle as the claimant alleges,” and that “claimant’s medications
appear to be effective and do not produce any adverse side effects.” (Tr. at 24.) The ALJ
also noted that no examining physician indicated that Plaintiff was unable to work. (Id.)
Ultimately, the ALJ weighed the evidence of record and determined that although the
evidence supported a finding that Plaintiff would have some difficulty and some pain, it did
not supporting a finding that Plaintiff was totally disabled from performing all types of
substantial gainful activity.
Here, it would appear that Plaintiff is essentially asking this Court to re-weigh the
evidence that led the ALJ to give little weight to the opinions of Plaintiff’s treating physicians
and determine that Plaintiff’s impairments do not create disabling functional limitations, but
this Court is not permitted to do so. As the Fourth Circuit has long instructed, “[i]n
reviewing for substantial evidence, [the Court does] not undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute our judgment for that of the
Secretary.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir.
1972) (noting that § 205(g) “requires that the court uphold the Secretary’s decision even
10

should the court disagree with such decision as long as it is supported by ‘substantial
evidence’”); Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987) (“Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the Secretary (or the Secretary’s designate, the
ALJ”). After review, the Court agrees with the Magistrate Judge that the ALJ adequately
weighed the opinions of Plaintiff’s treating physicians in accordance with the regulations
and gave sufficient explanation for the decision to give little weight to those opinions by
pointing out the inconsistency of those opinions with other substantial evidence in the
record. As such, the Court finds that substantial evidence supports the ALJ’s findings and
that the ALJ’s decision was based upon a correct application of the relevant law.
CONCLUSION
The Court finds that the Magistrate Judge properly summarized the facts and
applied the correct principles of law when she determined that Plaintiff failed to show that
the Commissioner’s decision was not supported by substantial evidence or that it was
reached through application of an incorrect legal standard. Accordingly, it is hereby
ORDERED that the Magistrate Judge’s Report (ECF No. 17) is adopted and incorporated
herein; Plaintiff’s objections (ECF No. 19) are overruled; and the Commissioner’s final
decision denying benefits is affirmed.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce H. Hendricks
United States District Judge
September 25, 2018
Charleston, South Carolina
11