Wright v. Commissioner of the Social Security Administration
Filing
41
ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION: The Court rejects the magistrate judge's Report and Recommendation (ECF No. 29). The Court thereby REVERSES AND REMANDS the Acting Commissioner's final decision. Signed by Honorable J Michelle Childs on 3/31/2014. (gnan )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Cynthia E. Bennett Wright,
)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin,
)
Acting Commissioner of the
)
Social Security Administration,
)
)
Defendant.
)
___________________________________ )
Civil Action No. 5:12-cv-2284-JMC
ORDER AND OPINION
This matter is before the court for review of the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 29), filed August 29, 2013, regarding Plaintiff Cynthia E.
Bennett Wright’s (“Plaintiff”) claim for Disability Insurance Benefits (“DIB”). On August 10, 2012,
Plaintiff filed the instant action seeking judicial review of the final decision of the Acting
Commissioner of the Social Security Administration (“the Acting Commissioner”) pursuant to 42
U.S.C. § 405(g). (ECF No. 1.) The magistrate judge recommends that the court affirm the Acting
Commissioner’s final decision. (ECF No. 29 at 1.)
For the reasons set forth below, the court REJECTS the magistrate judge’s Report. The
Acting Commissioner’s final decision is thereby REVERSED and this action is REMANDED.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes, upon its own careful review of the record, that the factual
summation in the magistrate judge’s Report is accurate, and the court adopts this summary as its
own. However, a brief recitation of the background in this case is warranted.
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Plaintiff filed an application for DIB on September 29, 2009, regarding a disability which
she alleged began on February 1, 2008. (Tr. 24.)1 The Acting Commissioner initially denied
Plaintiff’s application and denied it again upon reconsideration. Id. On October 26, 2010,
Plaintiff had a hearing before an administrative law judge (“ALJ”). (See Tr. 39–66.) On
November 5, 2010, the ALJ found that Plaintiff was not disabled. (Tr. 21–38.) The ALJ
determined that Plaintiff had the following severe impairments: carpal tunnel syndrome, wrist
pain, obesity, and bipolar disorder. (Tr. 26.) The ALJ concluded that Plaintiff had a residual
functional capacity (“RFC”) to perform light work except that she is limited to unskilled work
involving tasks requiring no more than frequent handling and fingering. (Tr. 28.) As further
discussed below, the central issue before the court is whether the ALJ properly evaluated
Plaintiff’s examining physician’s opinion regarding her mental impairments in reaching his Step
Three2 determination and concluding that Plaintiff could perform unskilled work.
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) of the Social
Security Act to obtain judicial review of the final decision of the Acting Commissioner, denying
her claim for DIB. (ECF No. 1.) The magistrate judge reviewed Plaintiff’s case and provided
the Report to the court. (ECF No. 29.) In the Report, the magistrate judge found that the ALJ
conducted a proper analysis at Step Three in determining that Plaintiff’s mental impairments did
not meet a listed impairment. Id. at 19–21. The magistrate judge further concluded that the ALJ
The court cites to pages in the transcript of the administrative record and not to the electronic
case filing page numbers.
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“At step three, the [ALJ] must determine whether the [plaintiff’s] impairment or combination
of impairments meets or medically equals the criteria of an impairment listed in 20 C.F.R. Pt.
404, Subpt. P, App’x 1….If the [plaintiff’s] impairment or combination of impairments meets or
medically equals the criteria of a listing and meets the duration requirements…, the [plaintiff] is
disabled. If it does not, the analysis proceeds to the next step.” (Tr. 25.)
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appropriately considered the opinion of Plaintiff’s examining physician Dr. C. Barton Saylor in
establishing Plaintiff’s RFC. Id. at 23.
Plaintiff filed objections to the Report (ECF No. 38) to which the Acting Commissioner
replied (ECF No. 39).
STANDARD OF REVIEW
The magistrate judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. 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 is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objections
are made, and the court may accept, reject, or modify, in whole or in part, the magistrate judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
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,
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
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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.
DISCUSSION
Plaintiff has filed extensive objections regarding the ALJ’s consideration of examining
physician Dr. Saylor’s opinion, the ALJ’s Step Three analysis in deciding whether Plaintiff’s
mental impairment of bipolar disorder medically equaled the criteria of Listing 12.04, and the
ALJ’s conclusion that Plaintiff could perform unskilled work. (See ECF No. 38). Given the
comprehensiveness of Plaintiff’s challenge to both this portion of the ALJ’s decision and the
Report’s subsequent affirmance of it, the court will conduct a de novo review of that segment of
the ALJ’s decision.
Listing 12.04 is the listing for affective disorders like bipolar syndrome. See 20 C.F.R.
Pt. 404, Subpt. P, App’x 1, § 12.04. For Plaintiff’s case it is established that she has bipolar
syndrome with a history of episodic periods manifested by the full symptomatic picture of both
manic and depressive syndromes. (See ECF No. 39 at 2) (evidencing the Acting Commissioner’s
concession that Plaintiff has met Paragraph A of Listing 12.04). Therefore, in order for Plaintiff
to establish that her mental impairment met the required level of severity under the listing, she
also needed to demonstrate that she satisfied two of the categories under Paragraph B.3 See 20
C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.04. The categories under Paragraph B are as follows:
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Plaintiff would also meet the required level of severity if she satisfied the requirements of
Paragraph C alone, regardless of how she faired with the other paragraphs. See 20 C.F.R. Pt.
404, Subpt. P, App’x 1, § 12.04. However, Paragraph C is not at issue in this action.
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(1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social
functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; and (4)
repeated episodes of decompensation, each of extended duration. Id. If Plaintiff met the criteria
of Listing 12.04, she would be considered disabled. (Tr. 25.)
In his discussion of Plaintiff’s bipolar disorder, the ALJ mentions that in February of
2008, records from Palmetto Behavior Health stated, among other observations, that Plaintiff had
a history of poor judgment, difficulty sleeping, cycles of mood, and noncompliance with
medications and appointments. (Tr. 29.) The ALJ also discussed records from Dorchester
County Mental Health dated February 2008 through October 2010, which among other
impressions, noted that Plaintiff had a “GAF score of 55, which, again denotes nondisabling
symptoms.” Id. The ALJ did not explicitly detail how he factored the records of Palmetto
Behavior Health and Dorchester County Mental Health into his Paragraph B analysis or into his
RFC conclusion that Plaintiff could perform unskilled work.
The ALJ also examined the opinion of Dr. Dan Vandivier, a physician who did not
examine Plaintiff but instead conducted a review of the medical records in Plaintiff’s case file.
(Tr. 30, 625–656.) Dr. Vandivier’s report was dated July 14, 2008, and was therefore issued a
little over five months after Plaintiff’s alleged period of disability began. (See Tr. 625–656.) In
his opinion, Dr. Vandivier marked a series of boxes on a form to indicate his opinion that
Plaintiff satisfied the criteria for bipolar disorder (Tr. 628) and his conclusion that Plaintiff had
only mild restriction of her daily activities, mild difficulties in maintaining social functioning,
mild difficulties in maintaining concentration, persistence, or pace, and one or two episodes of
decompensation for extended periods of time (Tr. 635). From his review of Plaintiff’s medical
records, Dr. Vandivier concluded that Plaintiff could:
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A. Understand and remember detailed instructions and procedures requiring
brief initial learning periods,
B. Sustain concentration, effort and pace for detailed or familiar complex
tasks requiring some independent judgment & involving minimal
variations, & doing so at requisite schedules of work & breaks,
C. Interact frequently as needed with supervisors and peers and others &
sufficiently for task completion,
D. Adapt adequately to situational conditions and changes with reasonable
support & structure.
(Tr. 655.)
The ALJ accorded Dr. Vandivier’s opinion “considerable weight” finding it “consistent
with claimant’s presentation upon routine examination and well-supported by the weight of the
evidence of record.” (Tr. 30.) As the ALJ offered no further explanation for how this opinion
was consistent with Plaintiff’s prior mental health examination or the other evidence in the
record, the court finds it impossible to conduct a meaningful review of the ALJ’s decision to
accord the opinion considerable weight. The court’s difficulty is especially troubling in light of
the conflicting opinion of an examining physician, as discussed below, and given the ALJ’s own
acknowledgement that the opinions of State Disability Determination Services physicians, such
as Dr. Vandivier, “do not as a general matter deserve as much weight as those of examining or
treating physicians.” Id.
The court finds that Dr. Vandivier’s opinion standing alone is of little significance given
that it necessarily excludes from consideration the majority of Plaintiff’s alleged disability
period4, did not incorporate any substantive explanation, and was made without the benefit of
personally examining Plaintiff. 20 C.F.R. § 404.1527(c)(3) (“[B]ecause nonexamining sources
have no examining or treating relationship to you, the weight we will give their opinions will
depend on the degree to which they provide supporting explanations for their opinions. We will
Plaintiff alleges a disability period from February 1, 2008 through December 31, 2009. (Tr.
32.) Dr. Vandivier’s report is dated July 14, 2008. (Tr. 625–656).
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evaluate the degree to which these opinions consider all of the pertinent evidence in your
claim[.]”); SSR 96-6P, 1996 WL 374180, at *2 (July 2, 1996) (“[T]he opinions of State agency
medical and psychological consultants…can be given weight only insofar as they are supported
by evidence in the case record[.]”); C.f. Penny v. Sullivan, 2 F.3d 953, 957 (9th Cir. 1993)
(“Without the benefit of hearing [the plaintiff’s] complaints of pain, we find [the physician’s]
opinion regarding [the plaintiff’s] ability to perform ‘sedentary work’…to be of very limited
value.”).
Lastly, the ALJ considered the opinion of Plaintiff’s examining physician Dr. Saylor who
examined Plaintiff in October 2010, at the request of Plaintiff’s attorney. (Tr. 30, 892.) Dr.
Saylor wrote a report based on collateral data and his own examination. (Tr. 892.) Dr. Saylor
mentioned in his report that Plaintiff seemed “to have a history of minimizing her own
symptomatology.” (Tr. 895.) Additionally, Dr. Saylor completed an assessment of Plaintiff’s
mental impairments in which he checked a series of boxes to indicate his opinion that Plaintiff
had marked difficulties in maintaining social functioning and marked difficulties in maintaining
concentration, persistence, and pace.5 (Tr. 900.) Dr. Saylor also opined that Plaintiff had been
unable to sustain the demands of full-time work since February 2008. (Tr. 902.) Dr. Saylor
stated that Plaintiff’s prospect for returning to full-time work was poor but further commented
that a “[r]eturn to part-time work in a low stress, structured and supportive environment is more
realistic[.]” Id.
Dr. Saylor also wrote the following that was significant in the ALJ’s consideration of his
opinion:
Dr. Saylor also indicated that Plaintiff had mild restrictions in activities of daily living and one
or two episodes of decompensation for extended periods (Tr. 900), which was consistent with the
impressions of Dr. Vandivier.
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From a psychiatric standpoint, [Plaintiff’s] functioning appears to have
stabilized on Risperdal; however, her adjustment appears fairly tenuous. She
still appears to be fairly reliant on primitive denial to avoid dealing with real
stressors in her life….When she has gone off medication in the past, her
functioning has deteriorated. Although her medications have enabled her to
stabilized [sic], preventing episodes of disruption where she became delusion
[sic] and agitated, she remains fairly rigid and awkward and uncomfortable in
social situations. She may be capable of progressing to doing part-time work
in a low stress, structured environment.
(Tr. 896.)
The ALJ gave Dr. Saylor’s opinion some weight but only to the extent consistent with an
RFC of unskilled work. (Tr. 30.) The ALJ discounted Dr. Saylor’s impression that Plaintiff had
marked restrictions in social functioning and in concentration, persistence, or pace stating that
such determinations were issues explicitly reserved to the Acting Commissioner. Id. The court
finds the ALJ’s rejection of Dr. Saylor’s conclusions puzzling in light of the considerable weight
the ALJ accorded Dr. Vandivier’s opinion for these very same conclusions despite the absence of
any accompanying explanation from Dr. Vandivier. Without additional explanation, the court is
not satisfied that the ALJ had a sound basis for rejecting Dr. Saylor’s opinion in this regard.
The ALJ also diminished the weight of Dr. Saylor’s report because “Dr. Saylor was
presumably compensated for his opinions.”
(Tr. 30.) The court joins a number of courts that
find this type of reasoning, without more, insufficient to minimize the weight of a medical
source’s opinion. See, e.g., Jordan v. Colvin, 2013 WL 5317334, at *7 (D.S.C. Sept. 20, 2013)
(“The court agrees with the Ninth and Tenth Circuits, and with another judge in this district, that
the purpose for which medical reports are obtained does not provide legitimate basis for rejecting
them and that an examining doctor’s findings should be entitled to no less weight when the
examination [is] procured by the [plaintiff] than when it is obtained by the Commissioner.”)
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(internal citation and quotation marks omitted); see also Lester v. Chater, 81 F.3d 821, 832 (9th
Cir. 1995).
Additionally, the ALJ discredited Dr. Saylor’s opinion because it was based primarily on
Plaintiff’s subjective report of symptoms. (Tr. 30.) The ALJ stated that Dr. Saylor “seemed to
uncritically accept as true most, if not all, of what [Plaintiff] reported.” Id. Yet, in the ALJ’s
own Paragraph B analysis he relies almost exclusively on Plaintiff’s self-reporting to find that
she did not have marked difficulties in the relevant areas. (See Tr. 27.) For instance, in finding
Plaintiff had only moderate difficulties with social functioning, the ALJ relied on Plaintiff’s
testimony that she prefers being inside, avoids going out, and visits only with her family. Id. In
determining that Plaintiff had only mild difficulties with maintaining concentration, persistence,
or pace, the ALJ relied on Plaintiff’s statements that, among other claims, she can pay bills, use a
checkbook, read, watch television, manage stress well, and handle changes in routine. Id. Given
the ALJ’s apparently contradictory views on the reliability of Plaintiff’s self-reporting, the court
cannot conclude that the ALJ’s determination to diminish Dr. Saylor’s conclusions on this
ground was reasonable.
Lastly, the ALJ stated that Dr. Saylor’s Paragraph B opinions were inconsistent with his
finding that Plaintiff’s functioning had stabilized with treatment, referencing the paragraph
included above. (Tr. 30.) However, as the court reads that paragraph, Dr. Saylor’s conclusion
was that Plaintiff would remain stable so long as she continued with treatment. Dr. Saylor
indicated that Plaintiff’s stability was tenuous given the likelihood that she would not stay on her
medications. As one court has noted, the “failure to comply with treatment may represent a
symptom of [bipolar disorder].” Wake v. Comm’r of Soc. Sec., 461 F. App’x 608, 609 (9th Cir.
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2011). Therefore, Dr. Saylor’s statements were logically consistent and the cou finds this basis
T
s
w
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urt
for dimin
nishing Dr. Saylor’s opin
S
nion is witho merit.
out
In summation the court finds the AL discoun
n
n,
f
LJ’s
nting of Plain
ntiff’s exam
mining physic
cian’s
opinion inadequately supported. As a cons
i
y
sequence, th court find that the A
he
ds
ALJ’s Step T
Three
determin
nation that Pl
laintiff did not satisfy th requireme
n
he
ents of Para
agraph B has not been sh
s
hown
to be sup
pported by su
ubstantial ev
vidence. Sim
milarly, the c
court is unab to conclu that the A
ble
ude
ALJ’s
RFC of unskilled wo is based on substantia evidence. Therefore, the court rem
u
ork
o
al
mands this a
action
for furthe considerat
er
tion consiste with this order.
ent
CON
NCLUSION
N
For the foregoing reaso
ons, the cou REJECT the mag
urt
gistrate jud
dge’s Report and
t
TS
Recomm
mendation (ECF No. 29). The court thereby RE
.
EVERSES A
AND REMA
ANDS the A
Acting
Commiss
sioner’s fina decision.
al
IT IS SO OR
T
RDERED.
Unit States District Court Judge
ted
t
1,
March 31 2014
Columbia, South Car
rolina
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