Hagan v. Commissioner of the Social Security Administration

Filing 35

ORDER adopting 25 Report and Recommendation, and affirming the Commissioner's decision. Signed by Honorable David C Norton on March 31, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
TERESA JANE HAGAN,

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Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

No. 5:15-cv-02194-DCN
ORDER

This matter is before the court on United States Magistrate Judge Kaymani D.
West’s Report and Recommendation (“R&R”) that this court affirm Acting
Commissioner of Social Security Nancy A. Berryhill’s (the “Commissioner”)
decision denying plaintiff Theresa Jane Hagan’s (“Hagan”) application for disability
insurance benefits (“DIB”). Plaintiff filed objections to the R&R. For the reasons set
forth below, the court adopts the R&R and affirms the Commissioner’s decision.
I. BACKGROUND
A.

Procedural History

Hagan filed an application for DIB on July 3, 2010, alleging disability
beginning on December 1, 2007 (the “alleged onset date”). Tr. 118. The Social
Security Administration denied Hagan’s claim initially and on reconsideration. Tr.
64, 69. Hagan requested a hearing before an administrative law judge (“ALJ”), and
ALJ Edward T. Morriss held a hearing on December 8, 2011, during which Hagan
amended her alleged onset date to June 1, 2010. Tr. 26–57. The ALJ issued a
decision on March 19, 2012, finding Hagan was not disabled under the Social
Security Act. Tr. 10–21. Hagan requested Appeals Council review of the ALJ’s
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decision. The Appeals Council declined to review the decision, rendering the ALJ’s
decision the final action of the Commissioner. Tr. 1–6.
On April 23, 2013, Hagan filed this action seeking review of the ALJ’s
decision. On August 15, 2014, the court issued an order reversing the
Commissioner’s decision and remanding the case with directions to the ALJ to
consider Hagan’s mental impairments (the “Order”). Tr. 579–85. On remand, the
ALJ issued a decision on March 23, 2015, once again finding Hagan not disabled
under the Act. Tr. 510–23. Hagan bypassed the Appeals Council and sought judicial
review of the Commissioner’s decision on May 29, 2015. ECF No. 1. The
magistrate judge issued an R&R on January 24, 2017, recommending that this court
affirm the ALJ’s decision. ECF No. 25. Hagan filed objections to the R&R on
February 15, 2017, ECF No. 30, and the Commissioner responded to Hagan’s
objections on February 28, 2017. ECF No. 33. The matter is now ripe for the court’s
review.
B.

Medical History

Because Hagan’s medical history is not directly at issue here, the court
dispenses with a lengthy recitation thereof and instead notes a few relevant facts.
Hagan was born on April 11, 1959 and was 51 years old on the alleged onset date.
Tr. 32. She has a tenth grade education and past relevant work experience working at
a grocery store deli counter and as shift manager at a bingo parlor. Tr. 32–33.
C.

ALJ’s Decision

The ALJ employed the statutorily-required five-step sequential evaluation
process to determine whether Hagan had been under a disability since her amended

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alleged onset date of June 1, 2010 through her date last insured of September 30,
2011. Tr. 515. The ALJ first determined that Hagan had not engaged in substantial
gainful activity during the relevant period. Tr. 515. At the second step, the ALJ
found that Hagan suffered from the following severe impairments: degenerative disc
disease, degenerative joint disease status post left knee arthroscopy, and chronic
obstructive pulmonary disease. Tr. 515. At step three, the ALJ determined that
Hagan’s impairments did not meet or equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). Tr. 516. Before reaching the fourth
step, the ALJ determined that Hagan had the residual functional capacity (“RFC”) to
perform light work, as defined by 20 C.F.R. § 404.1567(b). Tr. 517. Specifically, the
ALJ found that Hagan could: lift and carry up to twenty pounds occasionally and ten
pounds frequently; stand, walk, and sit for six hours in an eight-hour workday;
occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; frequently
balance; and never climb ladders, ramps, or scaffolds. Id. The ALJ further
determined that Hagan must avoid concentrated exposure to fumes, odors, dusts,
gases, and poor ventilation, and that she must avoid exposure to hazards such as
machinery and heights. Tr. 518. At step four, the ALJ found that Hagan was able to
perform past relevant work as a bingo shift manager because this work did not require
the performance of any work-related activities that were precluded by her RFC of
light work. Tr. 522. Therefore, the ALJ concluded that Hagan had not been under a
disability within the meaning of the Act since the alleged onset date. Id.

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II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions
of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270–71 (1976).
Judicial review of the Commissioner’s final decision regarding disability
benefits “is limited to determining whether the findings of the [Commissioner] are
supported by substantial evidence and whether the correct law was applied.” Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a
mere scintilla of evidence but may be somewhat less than a preponderance.” Id.
(internal citations omitted). “[I]t is not within the province of a reviewing court to
determine the weight of the evidence, nor is it the court’s function to substitute its
judgment for that of the [Commissioner] if his decision is supported by substantial
evidence.” Id. Where conflicting evidence “allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that decision falls on the [ALJ],”
not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)
(internal citation omitted).
III. DISCUSSION
Hagan’s sole objection to the R&R is that the ALJ was deficient in conducting
the RFC analysis because he did not adequately comply with the directive in this

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court’s August 15, 2014 order to consider Hagan’s mental impairments.1 ECF No. 30
at 1. The court disagrees.
The mandate rule states that a lower court on remand must implement both the
letter and the spirit of the appellate court’s mandate and may not disregard the explicit
directives of the appellate court. Brown v. Astrue, 2009 WL 330086, *3 (N.D.Tex.
Feb. 11, 2009). “In Social Security proceedings, the district court’s position to the
Appeals Council (and indirectly, the ALJ) is analogous to that of the court of appeals’
position with respect to a trial court.” Id. at n. 3 (quoting Ischay v. Barnhart, 383 F.
Supp. 2d 1199, 1215 (C.D. Cal. 2005). Friday v. Comm’r of Soc. Sec. Admin., 2009
WL 1181068, at *6 (N.D. Tex. Apr. 29, 2009).
In its August 15, 2014 order, this court determined that the ALJ’s RFC
analysis regarding Hagan’s mental impairments was deficient. Tr. 579–85. The court
instructed the ALJ to perform a more detailed assessment of Hagan’s mental
impairments to determine what, if any, limitations they placed on her ability to work.
Tr. 585. Hagan argues the ALJ failed to “comply with this court’s specific instruction
to consider how [Hagan’s] mental impairments (whether severe or not) affected her
RFC,” and that the RFC contains no limitations relating to Hagan’s mental

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In her objections, Hagan makes a passing reference to her “other allegations
of error” that the ALJ allegedly ignored. ECF No. 30 at 4. This is the extent of
Hagan’s argument—she does not identify any specific allegations of error that the
ALJ ignored on remand. The Fourth Circuit has held that a party must object to the
finding or recommendation on that issue with “sufficient specificity so as reasonably
to alert the district court of the true ground for the objection.” United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007). Assuming that Hagan’s reference to her
“other allegations of error” is intended as an objection—which, the court notes, is not
entirely clear—the court finds that Hagan has failed to raise an objection “sufficiently
specific” to focus the court’s attention on the issues that are in dispute, and thus that
she has waived the objection.
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impairments. ECF 30 at 2. The Commissioner contends that the ALJ was required
only to “provide an adequate explanation of the limitations,” and that he has done so.
ECF 33 at 3.
A review of the ALJ’s decision reveals that Hagan’s arguments are without
merit. The ALJ’s explanation of how and to what extent Hagan’s mental limitations
affect her RFC is appropriate. Specifically, the ALJ noted that Hagan’s anxiety is
treated adequately with medication and her depression causes only “mild mental
difficulties associated with being in public” because she is able to carry out activities
of daily living. Tr. 517. The ALJ explained how he accounted for Hagan’s nonsevere anxiety and depression in the RFC assessment, and considered the
“combination of [Hagan’s] anxiety in conjunction with her chronic obstructive
pulmonary disease,” concluding that these conditions were adequately controlled and
not disabling. Tr. 521. The ALJ also discussed Hagan’s primary care physician Dr.
Patricia Campbell’s (“Dr. Campbell”) October 3, 2011 impairment questionnaire,
which concluded that Hagan’s “physical and psychological ailments” would prevent
her from handling most stressful situations, and that Hagan would need to take
“unscheduled breaks every 15-30 minutes for 1-2 hours at a time” leading to her
missing “more than three days of work a month.” Tr. 521. The ALJ chose to give the
questionnaire little weight because (1) Dr. Campbell had not examined Hagan since
December 8, 2010, (2) Dr. Campbell’s previous treatment notes did not indicate such
limitations, and (3) Erica Gunnells, a nurse practitioner in Dr. Campbell’s practice,
conducted a physical examination of Hagan on October 3, 2011 and reported Hagan’s
anxiety as stable. Tr. 521. Furthermore, the ALJ noted that neither Dr. Sabino

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D’Agostino nor Dr. Seth P. Kupferman, Hagan’s treating physicians, found Hagan to
be as limited as Dr. Campbell. Tr. 521. As a result, the ALJ gave little weight to Dr.
Campbell’s opinion.
The ALJ discussed Hagan’s testimony from her January 22, 2015 hearing that
she has anxiety and depression, as well as how her physical symptoms such as the
swelling in her knee and back affect her mental symptoms. Tr. 519. However, the
ALJ ultimately finds that Hagan’s statements are not fully credible. Tr. 519. For
support, the ALJ cites evidence from the record including Dr. Campbell’s September
22, 2010 mental health medical source statement which stated that Hagan did not
have any current mental health diagnosis and that Hagan did not exhibit any workrelated limitations in function due to a mental condition, as she showed “intact
thought process, appropriate thought content, normal mood and affect, and good
memory, attention, and concentration.”2 Tr. 519.

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In his discussion of Hagan’s mental health, the ALJ notes that Hagan has not
sought any mental health care treatment outside of drug therapy from Dr. Campbell.
Tr. 519. Frequent medical visits “generally lend support to an individual’s allegations
of intense and persistent symptoms.” S.S.R. 96–7p, 1996 WL 374186, at *7 (July 2,
1996). In contrast, however:
[an] individual’s statements may be less credible if . . . records show
that the individual is not following the treatment as prescribed and
there are no good reasons for this failure. However, the adjudicator
must not draw any inferences about an individual’s symptoms and
their functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual
may provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical
treatment.
Id. Here, the ALJ’s discussion lacks any indication whether he considered the
possible reasons that Hagan had not sought any mental health care treatment, namely
that mental health care treatment is frequently costly. Hagan testified during the
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The ALJ analyzed Hagan’s claims, and adequately explained his consideration
of the evidence and how it factored into his formulation of her RFC. For example,
the ALJ noted that Hagan provided no evidence of disabling limitations due to
depression or anxiety. Tr. 515–16. The ALJ also cited treatment notes in the record
that Hagan’s anxiety and chronic obstructive pulmonary disease were adequately
treated with medication. Tr. 517. The ALJ also addressed the combined effect of
Hagan’s degenerative disc disease and depression on her ability to work, stating that
Hagan was able to carry out activities of daily living, including driving a car “with
only mild mental difficulties associated with being in public.” Tr. 517. The ALJ also
addressed the combined effects of Hagan’s chronic obstructive pulmonary disease
and anxiety, finding that the treatment notes documented that her condition was
adequately treated with medication. Tr. 517.
While Hagan may disagree with the ALJ’s assessment, it is not the province
of this court to re-weigh conflicting evidence, to make credibility determinations, or
to substitute its judgment for that of the Commissioner. Craig, 76 F.3d at 589. The
ALJ fully explained his findings in formulating Hagan’s RFC and provided specific
reasons for his assessment. Tr. 517–522. In doing so, the ALJ complied with this
court’s order to consider the impact of Hagan’s non-severe mental impairments on

January 22, 2015 hearing that her health insurance does not cover mental health
treatment. Tr. 519. In conjunction with Hagan’s testimony that she pays Dr.
Campbell a $20 copay and “does her best” to pay the rest, and that she gets her
prescriptions from the “$4 list at Walmart,” it is reasonable to conclude that Hagan
did not seek specialized mental health care treatment because it was cost-prohibitive.
Tr. 519. In and of itself, the fact that Hagan did not seek mental treatment outside of
the drug therapy that Dr. Campbell provided does not establish that she did not suffer
from severe mental health impairments.
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her RFC. The court is satisfied that the ALJ’s decision was supported by substantial
evidence.
IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R, and
AFFIRMS the Commissioner’s decision.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 31, 2017
Charleston, South Carolina

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