Saxon v. Commissioner of Social Security Administration

Filing 41

ORDER RULING ON REPORT AND RECOMMENDATION reversing the decision of the Commissioner pursuant to Sentence Four of 43 U.S.C. § 405(g) and remanding in accord with the instructions set forth.- Signed by Honorable Richard M Gergel on 8/9/13. (jsmi, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Rudy Saxon,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 6:10-1 144-RMG

ORDER

Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of
the final decision of the Commissioner of Social Security denying his 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 June 5, 2013, recommending that the Court affirm the Commissioner's
decision. (Dkt. No. 28). The Plaintiff filed objections to the Report and Recommendation and
the Commissioner filed a reply. (Dkt. Nos. 30, 37). As more fully set forth below, the Court
reverses the decision of the Commissioner and remands for further action consistent with this
order.
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 novo

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detennination 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 ofthe
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 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, 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, 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).
The Commissioner, in passing upon an application for disability benefits, is required to
undertake a five-step sequential process. At Step One, the Commissioner must detennine
whether the applicant is engaged in substantial gainful work. 20 C.F.R. § 404.1520(a)(4)(i). If
the claimant is not engaged in substantial gainful employment, the Commissioner proceeds to
Step Two, which involves a detennination whether the claimant has any "severe medically
detenninable physical or mental impainnent." /d. § 404.1 520(a)(4)(ii). If the claimant has one
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or more severe impairments, the Commissioner proceeds to Step Three, which involves a
determination whether any impairment of the claimant satisfies anyone of a designated list of
impairments that would automatically render the claimant disabled. Id § 404.1 520(a)(4)(iii).
Where the claimant has multiple impairments but none satisfy independently the criteria for a
listed impairment, the Commissioner is obligated to consider the combined effect of the various
impairments and determine whether they are the medical equivalent of the criteria of a listed
impairment. 42 U.S.C. § 423(d)(2)(B); Walker v. Bowen, 889 F.2d 47,49-50 (1989); 20 C.F.R.

§ 416.926.
If the claimant does not have a listed impairment or the medical equivalent of a listed
impairment, the Commissioner must proceed to Step Four, which involves an assessment of the
claimant's Residual Functional Capacity ("RFC"). Id § 404. 1520(a)(4)(iv). This requires
assessment of the claimant's ability "to meet the physical, mental, sensory, and other
requirements of work." Id. § 404. 1545(a)(4). In determining the claimant's RFC, the
Commissioner "must first identify the individual's functional limitations or restrictions" and
provide a narrative "describing how the evidence supports each conclusion, citing specific
medical facts ... and nonmedical evidence." SSR 96-8P, 61 Fed. Reg. 34474, 34475, 34478
(July 2, 1996).
Once the claimant's RFC is determined, the Commissioner must assess whether the
claimant can do his past relevant work. 20 C.F.R. §§ 404. 1520(4)(iv), 154S(a)(5)(i). If the
claimant, notwithstanding the RFC determination, can still perform his past relevant work, he is
deemed not to be disabled. If the claimant cannot perform his past relevant work, the
Commissioner then proceeds to Step Five to determine if there is other available work in the
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national economy he can perfonn in light of the RFC detennination. ld. § 404.1 520(a)(4)(v).
Under the regulations of the Social Security Administration, the Commissioner is
obligated to consider all medical evidence and the opinions of medical sources, including treating
physicians. ld. § 404.1545. The regulation, known as the "Treating Physician Rule," imposes a
duty on the Commissioner to "evaluate every medical opinion we receive." ld. § 404. 1527(c).
The Commissioner "[g]enerally ... givers] more weight to opinions from ... treating sources"
based on the view that "these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant's] medical impainnent(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from objective medical
findings alone or from reports of individual examinations, such as consultative examinations or
brief hospitalizations." ld. § 404. 1527(c)(2). Further, the Commissioner "[g]enerally ... givers]
more weight to the opinion of a source who has examined [the claimant] than to the opinion of a
source who has not examined [the claimant]." ld. § 404.1 527(c)(I).
Under some circumstances, the opinions of the treating physicians are to be accorded
controlling weight. Even where the opinions of the treating physicians of the claimant are not
accorded controlling weight, the Commissioner is obligated to weigh those opinions in light of a
broad range of specifically identified factors, including the examining relationship, the nature and
extent of the treatment relationship, supportability of the opinions in the medical record,
consistency, and whether the treating physician is a specialist. Jd. §§ 404. 1527(c)(I)-(5). The
Commissioner is obligated to weigh the findings and opinions of treating physicians and to give
"good reasons" in the written decision for the weight given to a treating source's opinions. SSR
96-2P, 61 Fed. Reg. 34490, 34492 (July 2, 1996).

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Discussion
The claimant's application for disability benefits has followed an unusually protracted
process dating from the initial application in August 2004. In a previous appeal on this same
claim, the Honorable Sol Blatt, Jr., Senior United States District Judge, reversed the
Commissioner's denial of disability benefits because the decision of the Administrative Law
Judge ("ALJ") had failed to consider and explain the combined effects of Plaintiffs multiple
severe impairments, which included degenerative disc disease, a left total hip replacement, and
schizophrenia. Saxon v. Astrue, 662 F. Supp. 2d 471, 479-80 (D.S.C. 2009). Referencing the
Fourth Circuit's seminal decision in Walker v. Bowen, Judge Blatt emphasized the need for the
ALJ to "adequately explain his or her evaluation of the combined effects of the impairments"
rather than "fragmentize them." Id. at 479.
On remand, Plaintiff was awarded disability benefits from the date of his 50th birthday,
May 8, 2009, on the basis that his impairments limited him to sedentary work and that upon
reaching 50 years of age he was deemed under controlling Social Security law to be disabled.
Transcript of Record ("Tr.") 855. In regard to the claimant's application for disability benefits
from the alleged date of onset, August 7, 2004, until May 7, 2009, the ALJ concluded that
Plaintiff was not disabled and was capable of performing sedentary work. Tr.851-54. The ALJ
again addressed the three severe impairments relating to Plaintiffs spinal disc disease, hip
replacement, and schizophrenia. Each was addressed separately and determined not to satisfy the
criteria for the listings applicable to them. Tr. 850-51. However, with the exception of a passing
reference to considering the "claimant's severe impairments, or a combination thereof," there
was no specific analysis or discussion of the cumulative effect of the claimant's three severe
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impairments. Id.
This failure to consider and explain the cumulative effects of these severe impairments,
beyond ignoring the unambiguous instructions of Judge Blatt and the clear statutory and
regulatory mandate to do so, appears particularly significant here because the Plaintiffs severe
disc disease, chronic pain secondary to his left hip replacement, and persistent schizophrenia,
including audio and visual hallucinations and paranoia, certainly present the type of combined
effects of multiple impairments that could constitute the medical equivalent of a listing or might
otherwise satisfy the legal requirements for disability under the Social Security Act. Tr.655,
575,576, 750, 797,800,806-07,999, 1001, 1026, 1028, 1035-36, 1040. The failure of the ALJ
to consider these severe impairments in combination and to explain his decision, without
question, mandates reversal of the Commissioner's decision.
The ALl's evaluation of certain medical evidence contained in the record was also legally
improper and should be corrected on remand. First, in evaluating Plaintiffs potential 1.04
Listing, relating to disorders in the spine, the ALJ found that "[e ]vidence of nerve root
compression is not described in the record." Tr. at 850. In fact, an August 23, 2006 MRI
explicitly describes nerve root compression at L2-3 and at L5-Sl. Tr.806-07. Thus, the ALJ's
finding regarding no record evidence of nerve root compression is not supported by substantial
evidence.
Second, the ALJ concluded that the claimant's Global Assessment of Functioning
("GAF") scores of 45 would be given "little weight" because in the ALl's opinion such a score
would be incompatible with the claimant's lack of depression, ability to live independently,
follow medical instructions, and keep medical appointments. Tr.853. The GAF is a clinical

assessment provided by the treating medical provider and involves an evaluation of the patient's
"psychological, social, and occupational functioning." American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 30 (4th ed. 1994). As such, the
determination of a patient's OAF score involves the exercise of special medical expertise and
clinical judgment. A score of 45 can reflect a "serious impairment" in "social, occupational, or
school functioning" and can be associated with a patient being "unable to keep ajob." Id. at 32.
In this case, two different board certified examining and treating psychiatrists over a
three-year period, dating from August 2006 through August 2008, concluded that Plaintiffs OAF
score was 45. Tr. 799,99-1001, 1040-41. The diagnoses of these treating physicians are
supported with findings regarding the Plaintiff s schizophrenia and paranoia and appear to be the
type of medical opinions entitled to a high degree of deference under the Treating Physician
Rule. No other OAF score was provided in the record during this period.
Faced with this overwhelming evidence in the record of the patient's OAF score of 45,
the ALl elected to discard these opinions of treating physicians based on his judgment that
Plaintiffs level of functioning was higher than a OAF score of 45. However, the ALl may not
substitute his lay opinion on a matter of medical opinion for the opinions of the claimant's
treating physicians. Any medical opinions should be evaluated pursuant to the standards set forth
in § 404.1527(c), the Treating Physician Rule, and based on the record evidence. On remand, the
ALl should evaluate the claimant's OAF score in light of controlling legal standards set forth
herein.
The Court notes that the errors of the ALl regarding the claimant's nerve compression
and OAF score have the effect of minimizing the degree of impairment in regard to the
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claimant's spinal cord and mental health disorders and could be read to be in furtherance of an
effort to justify a continued finding against disability. The failure of the ALJ to follow Judge
Blatt's clear instructions to consider and explain the claimant's severe impairments in
combination could also be seen in the same light. In addressing this matter on remand, the
Commissioner should make every effort to evaluate the evidence in this claim in accord with her
obligation to fairly consider all of the claimant's evidence and to apply controlling legal
standards without regard to the likely outcome or consequences.
Plaintiff has requested that in light of the protracted nature of these proceedings that the
Court reverse the decision of the Commissioner and award benefits. (Dkt. No. 30 at 17-18). The
Court has, quite frankly, carefully considered this request because of the ALJ's clear failure to
explicitly consider and address the combined effects of Plaintiffs severe impairments, as
directed by Judge Blatt, in the earlier reversal and remand, and the significant record evidence
supporting Plaintiffs claim that the combined effect of his severe mental illness and orthopaedic
impairments render him disabled under the Social Security Act during the time period at issue.
While the Court certainly has the authority under certain circumstances to reverse and award
benefits, the preferred course is to reverse and allow the Commissioner to address the matter on
remand. However, since this claim has been pending nearly 9 years, the Court directs the
Commissioner to conduct a hearing and issue a decision of the ALJ within 90 days of the entry of
this order. Should a further appeal to the district court be necessary, Plaintiff should designate
this case as related on the Civil Cover Sheet. The Court hereby reverses the decision of the
Commissioner pursuant to Sentence Four of 43 U.S.C. § 405(g) and remands in accord with the
instructions set forth above.

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AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

August1 ,2013
Charleston, South Carolina

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