Gaffney v. Commissioner of Social Security Administration

Filing 32

ORDER RULING ON REPORT AND RECOMMENDATION: The Court hereby ADOPTS the Magistrate Judge's Report and Recommendation, with the exception of Sections (C)( 4) and (C)(5), REVERSES the decision of the Commissioner and REMANDS this matter for further proceedings. Signed by Honorable Richard M Gergel on 1/18/2013. (gnan )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Linda Gaffney,
Plaintiff,
vs.
Michael J. Astrue, Commissioner
of Social Security,
Defendant.

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Civil Action No. 5:1 1-1 549-RMG

ORDER

Plaintiffhas brought this action pursuant to 42 U .S.C. § 405(g) seekingjudicial review ofthe
final decision of the Commissioner of Social Security denying her claim for Disability Insurance
Benefits ("DIB") and Supplemental Security Income ("SSI"). In accord with 28 U .S.C. § 636(b) and
Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate Judge for pre­
trial handling. The Magistrate Judge issued a Report and Recommendation on November 30, 2012,
recommending that the Commissioner's decision be reversed and remanded. (Dkt. No. 24). The
Commissioner filed a "limited objection" to a portion of the Report and Recommendation relating
to the mental and physical Residual Functional Capacity analysis done by the Administrative Law
Judge ("ALJ"). (Dkt. No. 26). The Commissioner filed no objection to the balance of the Report
and Recommendation, including sections recommending reversal and remand on the basis of: a
failure to properly consider the testimony of Plaintiff's examining mental health expert, Dr. Todd
Morton, under the standards of 20 C.F.R. § 404.1527; failure to consider Plaintiffs anxiety as a
severe impairment; and failure to properly consider Plaintiff's lack of mental health treatment until

2010 in light of the considerations of limited access and inadequate financial resources, as required
by Social Security Ruling 96-7P, 1996 WL 374186 (July 2, 1996). (Dkt. No. 24 at 15-23). Plaintiff
filed a response to the Commissioner's "limited objection," asserting that the entirety of the
Magistrate Judge's Report and Recommendation should be affirmed. (Dkt. No.27). As set forth
below, the Court adopts all portions ofthe Report and Recommendation except Sections (C)(4) and
(C)(5), reverses the decision of the Commissioner, and remands for further action consistent with
this opinion.
Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the Court.

Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(I).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. The Act provides that the "findings of the Secretary 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 541,543 (4th Cir. 1964). This standard precludes de novo review of the
factual circumstances that substitutes the Court's findings of fact for those of the Commissioner.

Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).
Although the federal court's review role is a limited one, "it does not follow ... that the

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findings ofthe administrative agency are to be mechanically accepted. The statutorily granted right
ofreview contemplates more than an uncritical rubber stamping ofthe administrative action." Flack

v. Cohen, 413 F.2d 278,279 (4th Cir. 1969). Further, the Commissioner's findings of fact are not
binding if they were based upon the application of an improper legal standard. See Coffman v.

Bowen, 829 F.2d 514, 519 (4th Cir. 1987).
Under the regulations ofthe Social Security Administration, the Commissioner is obligated
to consider all medical evidence and the opinions of medical sources, including treating and
examining physicians. 20 C.F.R. § 404.1545. This includes the duty to "evaluate every medical
opinion [the Commissioner] receive[s]." Jd. § 404.l527(c). The Commissioner is obligated to
weigh those opinions in light of a broad range of factors, including the examining relationship, the
treating relationship, supportability of the opinions in the medical record, consistency, and whether
the treating or examining physician is a specialist in the area for which he gave an opinion. 20
C.F.R. §§ 404.l527(c)(1)-(5). Thus, the Commissioner generally "give[s] more weight to the
opinion of a source who has examined [a claimant] than to the opinion of a source who has not
examined [a claimant]." Jd. § 404. 1527(c)(1 ). Further, the Commissioner is obligated to give "good
reasons" in the written decision for the weight given to a treating or examining source's opinions.
SSR 96-2P, 1996 WL 374188, at *5 (July 2, 1996).
It is well settled that a claimant in a Social Security disability proceeding should not be
penalized for failure to utilize medical care, treatment or medications because of a lack of financial
resources or inadequate access to medical care. As the Fourth Circuit stated in Gordon v. Schweiker,
725 F.2d 231, 23 7 (4th Cir. 1984), "[i]t flies in the face ofthe patent purposes ofthe Social Security
Act to deny benefits to someone because he is too poor to obtain medical treatment that may help

him." For this reason, Social Security Ruling 96-7P requires adjudicators to consider the reasons
for a claimant's failure to obtain or comply with medical treatment, including an inability to afford
treatment or access free or low-cost medical services. See SSR 96-7P, 1996 WL 374186, at *8 (July
2, 1996).
Discussion

The Magistrate Judge has ably summarized the factual issues in this matter and this Court
will not attempt to duplicate this effort. The Court notes that Plaintiff submitted a psychological
assessment by Dr. Todd Morton, an examining physician, that provided considerable support for
Plaintiff s claim that her acknowledged severe mental impairment significantly interfered with her
vocational functioning. Transcript of Record ("Tr.") at 236-37. Many of Dr. Morton's opinions
appeared to be uncontested in the case record. Rather than evaluate this expert opinion under the
standards set forth under § 404.1527, the ALJ elected to give Dr. Morton's opinions "little weight"
because he deemed the assessment not to be "impartial objective evidence of the claimant's mental
functional ability, as Dr. Morton examined the claimant at the request of her attorney." Tr. at 17.
He also observed that Dr. Morton saw the claimant on only one occasion. Id
This critique of the retained medical expert testimony of Plaintiff by the ALJ strikes the
Court as very odd. After all, it is not uncommon in Social Security disability proceedings for the
Commissioner to offer as evidence chart reviews by medical doctors who are compensated by the
Social Security Administration or cooperating state agencies. Frequently, these chart reviewers have
never examined or treated the claimant. There is no problem inherent in parties retaining paid expert
testimony in these proceedings. Indeed, this is necessary for the Court to be exposed to the full
scope of potential medical opinions in a particular matter. This record evidence must simply be

evaluated under applicable legal standards, most notably here the provisions of § 404.1527 that
provide some deference to the opinions ofexamining and treating physicians. The Court fully agrees
with the Magistrate Judge that reversal and remand are necessary for the fact finder to properly
evaluate the opinions of Dr. Morton.
The Court also finds it necessary to comment on the ALJ's analysis of the claimant's
credibility, particularly as it pertains to Plaintiffs alleged non-compliance with certain recommended
treatment and limited pursuit of mental health treatment. Tr. at 17. The record demonstrates that
Plaintiff received the bulk of her medical care from a free clinic, which certainly raises the issue of
affordability and access to medical care and medications. Further, Dr. Morton's description of
Plaintiff's typical day, which involves being homebound, crying and having little appetite, might
well suggest a degree ofmental impainnent that may interfere with nonnal reasoning and function.
On remand, if the ALJ elects to challenge the credibility of Plaintiff, the specific causes of her
limited receipt of medical treatment and compliance with recommended treatment should be fully
explored in light of applicable legal standards, including Social Security Ruling 96-7P.
The Court has elected not to adopt Sections (C)(4) and (5) since the Court views the
Commissioner's objections as mostly a semantic dispute with the Magistrate Judge's Report and
Recommendation regarding the role of medical evidence in the Residual Functional Capacity
analysis. Since the ALJ will need to reconsider his Residual Functional Capacity analysis after a
proper evaluation and weighing of the expert testimony and Plaintiff s credibility, the Court finds
no need to adopt Sections (C)(4) and (5) ofthe Magistrate Judge's Report and Recommendation. l

1 The Court does, however, agree with the Magistrate Judge's statement that the ALJ
should address the obesity issue as part ofthe Residual Functional Capacity analysis. (Dkt. No.
24 at 30).

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Conclusion
Based upon the foregoing, the Court hereby ADOPTS the Magistrate Judge's Report and
Recommendation, with the exception ofSections (C)(4) and (C)(5), REVERSES the decision ofthe
Commissioner and REMANDS this matter for further proceedings consistent with this opinion
pursuant to Sentence Four of 42 U.S.C. § 405(g).

AND IT IS SO ORDERED.

r
United States District Judge

J~2013

January
Charleston, South Carolina

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