Smith v. Commissioner of Social Security

Filing 35

ORDER rejecting 25 Report and Recommendation re: 15 Motion to Remand. Signed by Honorable David C Norton on 3/28/2013. (gcle, 3/28/2013)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
BILLY SMITH,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, ACTING
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
)

No. 8:11-cv-02151-DCN

ORDER

This matter is before the court on United States Magistrate Judge Kevin F.
McDonald’s Report and Recommendation (R&R) that the court affirm the
Commissioner’s decision denying claimant Billy Smith’s application for disability
insurance benefits (DIB) and supplemental security income (SSI). Smith has filed
objections to the R&R. For the reasons set forth below, the court does not adopt the
R&R and instead remands the case for further administrative proceedings.
I. BACKGROUND
Unless otherwise noted, the background of this case is taken from the thorough
and comprehensive R&R.
A. Procedural History
Smith filed an application for DIB on August 9, 2007, alleging that he became
unable to work on May 10, 2007. The Social Security Administration denied Smith’s
application initially and on reconsideration. On May 20, 2008, Smith requested a hearing
before an administrative law judge (ALJ). A hearing was held on September 21, 2009,
and, in a decision issued on February12, 2010, the ALJ determined that Smith was not

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disabled. The ALJ’s finding became the final decision of the Commissioner when the
Appeals Council denied further review on April 14, 2011. The notice explaining the
Appeals Council’s denial stated recognized that Smith had received a favorable result on
a subsequent application for DIB and SSI:
[T]he Appeals Council considered the fact that since the date of the
Administrative Law Judge's decision, you were found to be under a
disability beginning February 13, 2010 for a period of disability, Disability
Insurance Benefits and June 10, 2010 for Supplemental Security Income,
based on the applications you filed on June 10, 2010; however, the
Council found that this information does not warrant a change in the
Administrative Law Judge's decision.
Tr. 6. The Appeals Council did not place the favorable decision in the subsequent case in
the record.
Smith filed this action for judicial review on August 15, 2011. On February 23,
2012, Smith filed a motion to remand for consideration of new and material evidence
pursuant to sentence six of 42 U.S.C. § 405(g). On February 4, 2013, the magistrate
judge issued the R&R, recommending that the Commissioner’s decision be affirmed and
Smith’s motion to remand be denied. R&R 32. Smith filed extensive objections to the
R&R on March 8, 2013 and the Commissioner responded to Smith’s objections on March
25, 2013. The matter is now ripe for the court’s review.
B. Smith’s Medical History
On February 14, 2005, Smith sustained an injury when he fell down a flight of
stairs. Initially, he saw a doctor who told him he had a pinched nerve, and he was treated
with two epidural steroid injections, without improvement.
In September 2005, Smith was examined by Edward Hanley, M.D. Dr. Hanley
diagnosed neck pain and C6 radiculopathy in the right upper extremity. On November
23, 2005, Smith underwent spinal surgery. Though Smith’s surgery was initially
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successful, his condition gradually deteriorated. From January 4, 2006 through
November 22, 2006, Smith reported increasing levels of pain, discomfort, and weakness
in his right wrist and hand. On December 14, 2006, Dr. Hanley diagnosed residual
chronic radiculopathy and carpal tunnel syndrome right. Smith continued treatment with
Dr. Hanley and several other neurological specialists, but, through June 2009, continued
to complain of pain, weakness, and other symptoms related to radiculopathy and carpal
tunnel syndrome.
In October 2007, Smith was seen on an emergency basis at Catawba Mental
Health Center; he reported significant problems with pain as well as family and financial
pressures. The counselor noted that Smith had “no co-occurring disabilities.” Smith was
diagnosed with major depressive disorder, single episode, and anxiety, caused by “phase
of life problems.” On December 4, 2007, treating psychiatrist Carlton Gay, M.D., rated
Smith at 50 on the Global Assessment of Functioning (GAF).1 Dr. Gay noted that
Smith’s responses “suggest some degree of possible exaggeration/ malingering”
regarding Smith’s history of impairment. In March 2008, Dr. Gay stated that Smith had
moderate or severe work-related limitations and was able to manage his own funds. In
January 2009, Dr. Gay stated that Smith's pain “appeared to be limiting factor in overall
status improvement.”
In April 2008, Lisa Varner, Ph.D., reviewed Smith’s medical records and
completed a mental RFC assessment and psychiatric review technique form. Dr. Varner

A GAF score of 41-50 indicates a person has “[s]erious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” Am. Psychiatric
Ass’n, Diagnostic & Statistical Manual of Mental Disorders 34 (4th ed. text revision 2000).
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concluded that Smith had severe mental impairments, an affective disorder, and an
anxiety disorder that caused moderate limitations, but no episodes of decompensation.
C. ALJ’s Findings
In making his determination that Smith is not entitled to benefits, the ALJ found
that:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2011.
2. The claimant has not engaged in substantial gainful activity since
May10, 2007, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc
disease, status post anterior cervical disc excision and fusion, status
post cervical endoscopic nerve root decompression, carpal tunnel
syndrome, depression, and anxiety (20 C.F.R. § 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526).
5. After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work as defined in 20 C.F.R. § 404.1567(b) except: he is restricted
from climbing of ladders; is limited to only occasional balancing,
stooping, kneeling, crouching, and crawling; and is limited to work
requiring frequent but not constant overhead reaching and handling.
The claimant is further limited to work involving simple, routine,
repetitive tasks, with only occasional public contact.
6. The claimant is unable to perform any past relevant work (20 C.F.R. §
404.1565).
7. The claimant was born on November 21, 1961, and was 45 years old,
which is defined as a younger individual age 18-49, on the alleged
onset date (20 C.F.R. § 404.1563).
8. The claimant has a limited education and is able to communicate in
English. (20 C.F.R. § 404.1564).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
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the claimant has transferable job skills. (See SSR 82-41 and 20 C.F.R.
Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
C.F.R. §§ 404.1569, 404.1569(a)).
11. The claimant has not been under a disability, as defined by the Social
Security Act, from May 10, 2007, through the date of this decision (20
C.F.R. §404.1520(g)).
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). This court is not required to review the factual findings and legal conclusions
of the magistrate judge to which the parties have not objected. See id. The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination remains 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.

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III. DISCUSSION
Smith objects to the R&R and contends that the ALJ erred in a variety of ways
that necessitate remand. Specifically, Smith argues that: (1) the ALJ erred at step three
of the sequential evaluation process by failing to consider whether Smith’s impairments,
considered in combination, met or equaled a listing found on the Listing of Impairments;
(2) the ALJ gave improper weight to the opinion of Dr. Carlton Gay, Smith’s treating
psychiatrist; (3) the ALJ failed to properly consider how the side effects of Smith’s
medications impact his ability to work; (4) the ALJ improperly considered Smith’s failure
to seek further medical treatment due to financial concerns; (5) the case should be
remanded under sentence six of 42 U.S.C. § 405(g) because a subsequent Agency finding
that Smith is disabled constitutes new and material evidence that must be considered in
this proceeding; and (6) that the Appeals Council should have remanded the case to the
ALJ because of the same new and material evidence. Because the court agrees with
Smith that the ALJ erred at step three, the court need not consider the remainder of
Smith’s objections.
Federal law states that:
In determining whether an individual's physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under this section, the
Commissioner of Social Security shall consider the combined effect of all
of the individual's impairments without regard to whether any such
impairment, if considered separately, would be of such severity.
42 U.S.C. § 423(B) (2012); see also 20 C.F.R. § 404.1523 (2013) (“[W]e will consider
the combined effect of all of your impairments without regard to whether any such
impairment, if considered separately, would be of sufficient severity.”). As the Fourth
Circuit has explained, this means that “a failure to establish disability under the listings
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by reference to a single, separate impairment does not prevent a disability award.”
Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989).
It is axiomatic that disability may result from a number of impairments
which, taken separately, might not be disabling, but whose total effect,
taken together, is to render claimant unable to engage in substantial
gainful activity. In recognizing this principle, this Court has on numerous
occasions held that in evaluating the effective of various impairments
upon a disability benefit claimant, the Secretary must consider the
combined effect of a claimant's impairments and not fragmentize them.
Id. at 50; see also Saxon v. Astrue, 662 F. Supp. 2d 471, 479 (D.S.C. 2009) (collecting
cases that describe the importance of analyzing a claimant’s impairments both separately
and in combination). “As a corollary, the ALJ must adequately explain his or her
evaluation of the combined effects of the impairments.” Walker, 889 F.2d at 50. This
explanation must include more than a “generic declaration that ‘[t]he claimant does not
have an impairment or combination of impairments that meets or medically equals one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.’” Brown v. Astrue,
No. 11-cv-03245, 2013 WL 642189, at *10 (D.S.C. Jan. 31, 2013), adopted by 2013 WL
645958 (D.S.C. Feb. 21, 2013).
In the present case, the ALJ determined at step three of the sequential evaluation
process that “[t]he claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.” Tr. 19. This language precisely mirrors the language that was
found wanting in Brown. As in Brown and Walker, the ALJ in this case failed to analyze
the cumulative effects of Smith’s severe impairments. Instead, he simply noted that each
of Smith’s severe impairments do not, by themselves, meet or equal the listed
impairments. This explanation, and the conclusory statement that Smith’s combination
of impairments does not meet or equal the listed impairments, fail to meet the level of
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analysis required by Walker and its progeny. As a result, the court cannot discern
whether the ALJ’s decision was supported by substantial evidence. Remand is
appropriate.
Because this case will be remanded due to the ALJ’s failure to consider Smith’s
severe impairments in combination, the court need not address Smith’s remaining
objections to the R&R. Upon remand, the ALJ will have the opportunity to consider all
of those arguments, which are enumerated above.
IV. CONCLUSION
For the reasons set forth above, the court REJECTS the magistrate judge’s
Report & Recommendation, VACATES the Commissioner’s decision, and REMANDS
under sentence four of 42 U.S.C. § 405(g) for further proceedings.
AND IT IS SO ORDERED.

_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 28, 2013
Charleston, South Carolina

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