Vanadore v. Commissioner of the Social Security Administration

Filing 22

ORDER RULING ON REPORT AND RECOMMENDATION: The Court REVERSES the decision of the Commissioner pursuant to Sentence Four of 42 U.S.C. § 405(g) and REMANDS the matter to the Commissioner for further action consistent with this order. In light of the pendency of this application of DIB for nearly five years, the agency is directed to conduct an administrative hearing on remand and to issue a decision by the ALJ within 90 days and a final agency decision within 120 days. Signed by Honorable Richard M Gergel on 7/31/2017. (gnan, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Columbus Vanadore,

)
)

Plaintiff,

)
)

vs.
Nancy A Berryhill, Acting Commissioner
of Social Security,

Civil Action No. 5:16-1991-RMG

)
)
)
)

ORDER

)

Defendant.

)

Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking
judicial review of the final decision of the Commissioner of Social Security denying his claim for
Disability Insurance Benefits ("DIB"). In accordance 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 ("R & R") on June 30,
2017, recommending that the Commissioner' s decision be affirmed. (Dkt. No. 16). Plaintiff
timely filed objections to the R & R, and the Commissioner filed a response. (Dkt. No. 18, 20).
For reasons set forth below, the Court reverses the decision of the Commissioner and remands
the matter to the agency for further action consistent with this decision.
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 (1976). The Court is charged with making a de nova
determination of those portions of the Report and Recommendation to which specific objection is

-1-

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)(l).
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 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 preponderance." Thomas v. Celebrezze, 331F.2d541 , 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, 1157 (4th Cir.
1971).
Although the federal court' s review role is a limited one, "it does not follow, however,
that the findings of the administrative agency are to be mechanically accepted. The statutorily
granted right of review contemplates more than an uncritical rubber stamping of the
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. Coffman v. Bowen, 829 F .2d 514, 519 (4th Cir. 1987).
Under the regulations of the Social Security Administration, the Commissioner is
obligated to consider all medical evidence and the opinions of medical sources. 20 C.F.R. §
404.1527(b). The regulation requires the Commissioner to "evaluate every medical opinion we
receive." Id. § 404.1527( c). The Commissioner pledges to give special consideration to the
opinions of treating and examining physicians, noting explicitly that "we wi ll give more weight

-2-

to the opinion of a source who has examined you than the opinion of a source who has not
examined you. " Id. 404.1527(c)(1)(2).
The Commissioner is obligated to weigh all medical opinions in light of a broad range of
factors, including the examining relationship, the treatment relationship, length of treatment,
nature and extent of the treatment relationship, supportability of the opinions in the medical
record, consistency, and whether the treating physician was a specialist. Id. §§ 404.1527(c)(l)(5). Further, since the Commissioner recognizes that the non-examining expert has "no treating
or examining relationship" with the claimant, she pledges to weigh the opinions of nonexamining physicians under the same standards as any other medical opinion and to consider the
supporting explanations for their opinions and "the degree to which these opinions consider all of
the pertinent evidence in your claim, including opinions of treating and examining sources."
§§ 404.1527(c)(3), (e)(2)(ii). The Commissioner is also prohibited from "playing doctor," by
substituting the medical opinions of the Commissioner or the Administrative Law Judge (ALJ)
for those of physicians. Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017).
The Commissioner is also obligated to weigh and consider a claimant' s subjective
complaints of pain beyond consideration of objective medical evidence. Under the agency' s
regulatory scheme, the ALJ must first determine if there is objective medical evidence showing a
condition that reasonably could produce the claimant's symptoms. If such objective medical
evidence is present, the ALJ must then evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the claimant' s activities. This second
step requires an assessment of the claimant' s credibility. 20 C.F.R. § 404.1529. In making this
credibility determination, the ALJ may not require objective medical evidence to document the

-3-

intensity of the claimant' s pain since this would improperly increase his burden under the
regulatory scheme. Lewis, 858 F.3d at 866.
In weighing a claimant' s capacity for physical exertion, the Commissioner classifies work
into four categories: sedentary, light, medium, and heavy work. Light work requires "a good deal
of walking or standing," with the full scope of light work requiring a total of approximately 6
hours in an 8 hour day. Sedentary work involves standing and walking only occasionally.
20 C.F.R. § 404.1567; SSR 83-10, 1983 WL 31251 (1983).
Factual Background

The claimant filed his claim for DIB on November 14, 2012, just before his fiftieth
birthday, and was 52 years of age on his date last insured, December 31 , 2014. Plaintiff alleged a
whole litany of upper and lower extremity impairments as well as mental health impairments.
Following an administrative hearing on January 20, 2015, the ALJ issued a decision on March
12, 2015 denying Plaintiffs claim for DIB. In reaching that conclusion, the ALJ found that the
claimant suffered from a number of severe physical impairments, including degenerative changes
in his lumbar spine, a history of lower back muscle strain, cervical spondylosis, status post left
radius fracture, and carpal tunnel syndrome. The ALJ further found Plaintiff suffered from
severe mental health impairments, anxiety disorder and depression. Tr. 58. Despite these
numerous severe physical and mental impairments, the ALJ found that Plaintiff retained the
residual functional capacity to perform less than the full scope of light work. These limitations
from the full scope of light work included only occasional ramps, stairs, stooping, kneeling and
crawling and an avoidance of climbing and extreme heat or cold. Tr. 61.

-4-

The record contained considerable evidence relating to the Plaintiffs capacity to stand
and walk for any sustained period of time. Plaintiff testified that due to his severe back and neck
impairments and pain, he could stand no longer than 20-30 minutes and could walk no longer
than 25-30 yards. He stated that his back hurts constantly and he is presently unable to engage in
previous activities of fishing and gardening because of his pain. Tr. 89-93.
Dr. Harish Mangipudi, who performed a medical examination of Plaintiff on February 16,
2013 at the request of the Social Security Administration, found evidence of structural deformity
in the manner Plaintiff walked and the presence of both cervical and low back paraspinal
tenderness. He also documented the presence of abnormal gait and station and that the claimant
was unable to stand on his tiptoes and heels or tandem walk without problems. Plaintiff was also
unable to bend and squat without difficulty. Tr. 392. An evaluation of Plaintiffs range of
motion revealed the presence of markedly abnormal limitations in flexion and extension in
Plaintiffs cervical and lumbar spine. Tr. 395. Dr. Mangipudi also reviewed objective medical
evidence from Plaintiffs Social Security disability application file, which included an MRI of the
lumbar spine showing degenerative changes at L2-3, L4-5 , and L5-S 1 and a plain film of the
cervical spine showing spondylosis with neural foraminal impingement. Tr. 350, 374. Based on
his examination and the objective evidence in the record, Dr. Mangipudi opined that the claimant
"is unable to stand for the full workday. " He further concluded that Plaintiff had the capacity to
sit for the full workday. Tr. 394.
Plaintiffs complaint' s of severe back and neck pain were consistently documented in his
medical record. A physical therapist noted in 2012 that Plaintiff experienced significant pain
when returning to a standing position and with active extension. Providers at the Free Medical
-5-

Clinic documented in 2013 and 2014 that Plaintiffs pain was worse with extension and he had
positive straight leg raises and lower extremity weakness. Tr. 467, 484, 504, 552.
The only contrary evidence in the record regarding Plaintiffs capacity to sustain standing
and walking through the workday was provided by two in-house non-examining and non-treating
physicians. Both concluded that Plaintiff could stand and walk up to 6 hours in an 8 hour day but
provided no evidentiary support for those opinions regarding the length of time Plaintiff could
stand and walk. Tr. 127-129, 146-149.
The ALJ found that Plaintiff "can stand/walk for a maximum total of six hours in an eight
hour workday . .. " Tr. 61. In reaching that conclusion, the ALJ, the ALJ gave "little weight" to
the opinion of Dr. Mangipudi that Plaintiff could not stand for the full workday, contending that
it was "inconsistent with [his] own exam finding of normal lower extremities and with the
remainder of the evidence." Tr. 69. He further noted that Dr. Mangipudi 's opinion regarding
Plaintiffs capacity to stand was provided "before the claimant had left carpal tunnel surgery."
Id. The ALJ also noted the opinion of the non-examining in-house physicians regarding

Plaintiffs capacity to stand for 6 hours in an 8 hour day. Tr. 70. The ALJ did, however, give
"significant weight" to Dr. Mangipudi ' s opinion that Plaintiff could sit for the full workday. Tr.
69.
The ALJ also found Plaintiffs statement regarding his difficulties with standing and
walking not to be credible, stating that they were not "consistent with objective medical
findings. " Tr. 62. The ALJ further observed that he found it "significant" that Plaintiff claimed
disabling impairments but was still "able to care for his [disabled] wife" without "any particular
assistance." Tr. 66.

-6-

The Commissioner ultimately adopted the decision of the ALJ as the final decision of the
agency. Thereafter, Plaintiff timely appealed the adverse decision to this Court, which is now
presented for a final determination.
Discussion
It is important at the outset to note the narrow differences between the parties on the issue

of whether Plaintiff is disabled. The Commissioner, recognizing that Plaintiff has multiple
severe physical and mental impairments, found that nonetheless the claimant has the capacity for
less than the full scope of light work. Plaintiff asserts that he is capable of only sedentary work,
which he asserts would render him disabled due to his age and other factors. The critical
difference between the parties lies in Plaintiffs capacity to sustain standing and walking
approximately 6 hours in an 8 hour day.
In reaching the conclusion that Plaintiff could walk and stand 6 hours a workday, the
ALJ, by necessity, had to reject the opinion of the only examining physician in this record, Dr.
Mangipudi, and to find the Plaintiffs testimony regarding his limited capacity to stand and walk
not credible. Under these circumstances, the Court is required to consider whether the ALJ
properly evaluated Dr. Mangipudi's opinions under the requirements of§ 404. l 527(c) and
properly considered Plaintiffs subjective complaints of pain under § 404.1529. As discussed
more fully below, the Court finds that the Commissioner failed to satisfy the legal requirements
for the evaluation of an examining physician's opinions and the credibility of the claimant,
providing separate and independent bases for the reversal of the Commissioner's decision.

-7-

A.

The Commissioner's decision to provide "little weight" to the opinion of Dr.
Mangipudi regarding Plaintiff's capacity to stand for the full workday
violated the provisions of§ 404.1527 and is not supported by substantial
evidence.

Dr. Mangipudi, a physician selected to examine Plaintiff by the Social Security
Administration, conducted a detailed review of the claimant's medical history and records and
performed a comprehensive medical examination. He found multiple abnormalities in the
patient's gait and station, documented structural deformities in his walking, recorded significant
limitations on range of motion in the cervical and lumbar spine, noted the claimant' s inability to
bend or squat without difficulty, and concluded that Plaintiff had paraspinal tenderness in his
cervical and lumbar spine. Tr. 392-394. He also reviewed radiographic reports from the
agency' s records, which included findings of degenerative changes in the lumbar spine and
degeneration and nerve impingement in his cervical spine. Tr. 350, 374. Dr. Mangipudi then
concluded, based on "today' s examination and the objective evidence," that the claimant " is
unable to stand for the full workday. " Tr. 394.
The ALJ's evaluation of the opinion of Dr. Mangipudi concerning Plaintiff's capacity to
stand for a full workday is replete with legal errors, each which is sufficient to require reversal
and remand. First, the ALJ accorded no weight to the fact that Dr. Mangipudi was an examining
physician, and adopted uncritically the opinions of the non-examining physicians regarding
Plaintiff's capacity to stand. The ALJ ' s decision did not address how his obligation to give
special weight to an examining physician impacted his weighing of the opinions of the
examining and non-examining physicians. § 404.1527(c)(l). Second, the ALJ's statement that
Dr. Mangipudi ' s examination findings were not consistent with his opinion regarding Plaintiff's

-8-

capacity to stand is not supported by substantial evidence. In fact, Dr. Mangipudi's examination
findings, summarized above, were consistent with his opinion that Plaintiffs severe lumbar and
cervical spine abnormalities significantly impact the claimant' s capacity to stand for a sustained
period of time. Third, the ALJ rejected Dr. Mangipudi ' s opinion regarding Plaintiffs capacity to
stand on the dubious basis that it was rendered before the claimant had left carpal tunnel surgery.
Tr. 69. The ALJ offers no explanation how the Plaintiffs carpal tunnel surgery would impact the
claimant' s capacity to stand, and any potential relevance of the carpal tunnel surgery to the
capacity to stand issue escapes this Court. Fourth, the ALJ's statement that the absence of
documented lower extremity abnormalities renders Dr. Mangipudi's opinions unworthy of
consideration appears to be the classic "playing doctor" situation. Dr. Mangipudi clearly based
his opinion that Plaintiff could not stand for the full workday on Plaintiffs spinal abnormalities
without regard to any lower extremity abnormalities. The issue of whether spinal abnormalities
alone could account for Plaintiffs standing difficulties is a matter of medical judgment, and it
was improper for the ALJ to find that in the absence of documented lower extremity
abnormalities Dr. Mangipudi ' s opinion is without merit. Lewis, 858 F.3d at 869. Fifth, the
ALJ' s decision to give significant weight to Dr. Mangipudi' s opinion that Plaintiff has the
capacity to sit for a full workday while according little weight to his opinion that the claimant
cannot sustain standing for the full workday is the type of "cherry picking" of the evidence the
Fourth Circuit soundly rejected in Lewis. Id.
On remand, the Commissioner is directed to evaluate the opinions of Dr. Mangipudi
under the standards set forth in § 404.1527(c) and to weigh the full evidence in the record
without cherry picking or "playing doctor" where there may be disagreement with a physician' s
-9-

opinions. 1
B.

The Commissioner, by using objective medical evidence to weigh Plaintiff's
subjective complaints of pain under the second prong of§ 404.1529,
improperly increased the claimant's burden of proof.

It is well known that the Fourth Circuit has battled the Commissioner over the years
concerning the proper method to evaluate a claimant's subjective complaints of pain. Mickles v.
Shala/a, 29 F.3d 918, 919 (4th Cir. 1994) (Hall, J,. concurring). Recently, this issue was

revisited in Lewis v. Berryhill, with the Fourth Circuit holding that under the two step process
provided in § 404.1529 to evaluate a claimant's subjective complaints of pain, the claimant must
first demonstrate the objective evidence showing that his condition could reasonably produce the
symptoms alleged. Once that threshold has been satisfied, the Plaintiffs credibility must be
weighed considering the intensity of the pain, and it is improper to use objective evidence to
prove the absence of such intensity of the claimant's pain. Otherwise, the Fourth Circuit ruled,
this would "improperly increase[]" the claimant's burden of proof. 858 F.3d at 866.
Although the ALJ's decision is muddled on this point, it appears that he found there was
objective evidence to support Plaintiffs symptoms of pain but then concluded that Plaintiff was
not "fully credible" regarding the extent of symptoms present. Tr. 65-67. 2 However, in reaching

1

Dr. Mangipudi did not expressly state in his opinion the number of hours of standing
Plaintiff could sustain in a normal workday. Instead, he simply opined that he lacked the
capacity to stand for "a full workday." Tr. 394. Since the number of hours Plaintiff could stand
in a normal workday could well determine if Plaintiff could meet the standards for light or even
sedentary work, the ALJ on remand should communicate with Dr. Mangipudi and determine if
the physician might provide a more detailed opinion on Plaintiffs daily capacity to stand.
2

To the extent that the ALJ found that there was not objective evidence in the record to
support the first prong of§ 404.1529, such a finding would not be supported by substantial
evidence. See Tr. 350, 374, 392-95, 467, 484, 504.
-10-

his credibility conclusion, the ALJ pointed to the absence of certain objective medical evidence,
specifically the absence of disc herniation on the lumbar spine MRI and minimal evidence of
radiculopathy in the lower extremities. As the Fourth Circuit clearly held in Lewis, once the first
prong of§ 404.1527 is satisfied, it is improper to use the presence or absence of objective
medical evidence to weigh the claimant's credibility.
On remand, the Commissioner is directed to weigh Plaintiffs subjective complaints of
intense and unremitting pain under the standards of§ 404.1529, as interpreted by the Fourth
Circuit most recently in Lewis.
Conclusion
Based on the foregoing, the Court REVERSES the decision of the Commissioner
pursuant to Sentence Four of 42 U.S.C. § 405(g) and REMANDS the matter to the
Commissioner for further action consistent with this order. 3 In light of the pendency of this
application of DIB for nearly five years, the agency is directed to conduct an administrative
hearing on remand and to issue a decision by the ALJ within 90 days and a final agency decision
within 120 days.
AND IT IS SO ORDERED.

3

The ALJ additionally supported his credibility findings regarding the intensity of
Plaintiffs complaints of pain on the basis that he found it "significant" that the claimant was able
to care for his disabled wife without assistance. Tr. 66. The record provides no indication
whether Plaintiff has a choice in this matter. Surely a decision regarding a claimant's disability
application should not tum on whether he provides essential care for a bedridden and wheelchair
bound spouse. Elemental decency and common sense suggest this is not a proper basis to deny a
claimant's disability application.
-11-

Richard Mark Gergel
United States District Judge

Charleston, South Carolina
JuiyJ_i, 2017

-12-