Glick v. Commissioner of Social Security Administration

Filing 31

ORDER RULING ON REPORT AND RECOMMENDATION adopting 25 Report and Recommendation Signed by Honorable R Bryan Harwell on 3/12/14. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Paula Florence Glick,
Plaintiff,
v.
Carolyn W. Colvin, Commissioner
of Social Security,
Defendant.

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Civil Action No.: 6:12-cv-03294-RBH

ORDER

This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Kevin F. McDonald.1 Plaintiff Paula Florence Glick
brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying Plaintiff’s claim for disability
insurance benefits under Title II of the Social Security Act (“the Act”). In his R&R, the Magistrate
Judge recommends affirming the decision of the Commissioner.
FACTUAL FINDINGS AND PROCEDURAL HISTORY
Plaintiff applied for disability insurance benefits in July 2009, alleging that she became
unable to work on July 31, 2009. The application was denied initially. On reconsideration, the
Social Security Administration determined that she was disabled as of May 1, 2010. Plaintiff
requested a hearing before the Administrative Law Judge (“ALJ”) on October 9, 2010.2 That
1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), this
matter was referred to the Magistrate Judge.
2
Although the issue is not squarely before the Court, the Court notes that Plaintiff opted to appeal
the partially favorable decision by Disability Determination Services by requesting a hearing before
the ALJ. A “partially favorable” determination includes determinations by the Social Security
Administration “that [a claimant is] currently disabled, but . . . that [the] disability started sometime
after the date [the claimant] said [she] became disabled.” Social Security Administration, Social
Security Handbook § 527, available at http://www.ssa.gov/OP_Home/handbook/handbook.html.

hearing was held on May 11, 2011, and Plaintiff appeared and testified. Witnesses at the hearing
also included a vocational expert and one of Plaintiff’s friends. The ALJ considered the case de
novo and issued a decision dated August 8, 2011, finding that Plaintiff was not disabled through the
date of the decision. The ALJ’s overall findings were as follows:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since
July 31, 2009, the alleged onset date (20 C.F.R. 404.1571 et seq.).
...
3. The claimant has the following severe impairments: degenerative
joint disease and degenerative disc disease of the lumbar and cervical
spine, generalized osteoarthritis, fibromyalgia, polymyalgia,
rheumatics, asthma, sleep apnea, obesity, depression/mood disorder,
anxiety disorder, and somatoform pain disorder (20 C.F.R.
404.1520(c)).
...
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of 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, I find that the
claimant had the residual functional capacity to perform light work as
defined in 20 C.F.R. 404.1567(b) with certain additional limitations.
Specifically, the claimant can lift and/or carry 20 pounds occasionally
and 10 pounds frequently. The claimant can sit, stand, and walk for
about 6 hours each out of an 8-hour workday. The claimant can never
use ladders, ropes, or scaffolds. The claimant is limited to occasional
climbing, balancing, stooping, kneeling, crouching, and crawling. The
The Social Security Administration advises claimants “to carefully review the reason behind [the]
determination before deciding whether [to] appeal,” weighing the possibility of a finding of
disability “as early as the date [the claimant says her] disability began” against the possibility that
the claimant “could be found ‘not disabled.’ ” Id. Indeed, a claimant is on notice that “by filing an
appeal on a partially favorable determination, [she] must appeal the entire determination.” Id.
(emphasis added).
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claimant can frequently reach overhead. The claimant must avoid
concentrated exposure to fumes and hazards. The claimant can
perform detailed, but not complex work, meaning work with an SVP
of 3 and 4. The claimant is limited to frequent face-to-face contact
with the public.
...
6. The claimant is capable of performing past relevant work as a
receptionist. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 C.F.R. 404.1565).
...
7. The claimant has not been under a disability, as defined in the
Social Security Act, from July 31, 2009, through the date of this
decision (20 C.F.R. 404.1520(f)).
Tr. 14–29.
The ALJ’s finding became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for further review. On November 16, 2012, Plaintiff filed this
action seeking judicial review of the Commissioner’s decision. Compl., ECF No. 1. Both Plaintiff
and the Commissioner filed briefs, ECF Nos. 20, 22, 23, and the Magistrate Judge issued his Report
and Recommendation (“R&R”) on January 3, 2014, recommending that the Commissioner’s
decision be affirmed, R&R, ECF No. 25. Plaintiff filed timely objections to the R&R on January
20, 2014, Pl.’s Objs., ECF No. 26, and Defendant replied on February 3, 2014, Def.’s Reply, ECF
No. 27.
STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the Act is a
limited one. The Act provides that “[t]he 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
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preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). “Substantial evidence”
is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citations omitted).
This statutorily mandated 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, 1157-58 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court
“must uphold the factual findings of the [Commissioner] if they are supported by substantial
evidence and were reached through application of the correct legal standard.” Hancock v. Astrue,
667 F.3d 470, 472 (4th Cir. 2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1973) (holding that the Court must uphold the decision supported by substantial evidence “even
should [it] disagree”).

“From this it does not follow, however, that the findings of the

administrative agency are to be mechanically accepted.” 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 assume that there is a sound foundation for the [Commissioner’s] findings, and that his
conclusion is rational.” Vitek, 438 F.2d at 1157-58.
Furthermore, a de novo review is conducted of the Magistrate Judge’s R&R. 28 U.S.C. §
636(b)(1). The R&R is only a recommendation to the Court and has no presumptive weight;
indeed, the responsibility to make a final determination remains with the district court. 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 R&R to which specific objection is made, and the Court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to
the Magistrate Judge with instructions. § 636(b)(1).

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The right to de novo review, however, may be waived by the failure to file timely objections.
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review
when a party makes only “general and conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the
absence of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). In that event, however, the
Court must “ ‘satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DETERMINATION OF DISABILITY
Under the Act, Plaintiff’s eligibility for the benefits she is seeking hinges on whether she is
under a “disability.” 42 U.S.C. § 423(a). The term “disability” is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months . . . .” Id. § 423(d)(1)(A). “The ultimate burden
to prove disability lies on the claimant.” Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985).
A claimant may establish a prima facie case of disability based solely upon medical evidence by
demonstrating that her impairments meet or medically equal the listed impairments set forth in
Appendix 1 of Subpart P. 20 C.F.R. § 404.1520(d).
If such a showing is not possible, a claimant may also establish a prima facie case of
disability by proving that she could not perform her customary occupation as the result of physical
or mental impairments. See Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975). Because this
approach is premised on the claimant’s inability to resolve the question solely on medical

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considerations, it then becomes necessary to consider the medical evidence in conjunction with
certain “vocational factors.” 20 C.F.R. § 404.1560(b). These factors include the claimant’s (1)
“residual functional capacity,” id. § 404.1560; (2) age, id. § 404.1563; (3) education, id. §
404.1564; (4) work experience, id. § 404.1565; and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform, id. § 404.1560.

If the

assessment of the claimant’s residual functional capacity leads to the conclusion that she can no
longer perform her previous work, it must be determined whether the claimant can do some other
type of work, taking into account remaining vocational factors. Id. § 404.1560. The interrelation
between these vocational factors is governed by Appendix 2 of Subpart P. Thus, according to the
sequence of evaluation suggested by 20 C.F.R. § 404.1520, it must be determined: (1) whether the
claimant is currently gainfully employed, (2) whether she suffers from some physical or mental
impairment, (3) whether that impairment meets or medically equals the criteria of Appendix 1, (4)
whether, if those criteria are not met, the impairment prevents her from returning to her previous
work, and (5) whether the impairment prevents her from performing some other available work.
ANALYSIS
The Magistrate Judge recommends affirming the decision of the Commissioner.
Specifically, the Magistrate Judge concludes (1) that the Commissioner’s decision to give little
weight to an opinion of Plaintiff’s treating physician, Dr. Siddesh Gundi, was supported by
substantial evidence and without legal error, and (2) that the Commissioner’s assessment of
Plaintiff’s credibility was supported by substantial evidence and without legal error. Plaintiff
objects to the Magistrate Judge’s recommendations.

First, she argues the Magistrate Judge

improperly “brush[ed] aside the [Commissioner’s] failure to consider [Plaintiff’s] radiology
reports” in determining the amount of weight to assign Dr. Gundi’s opinions. Second, she contends

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the Magistrate Judge improperly affirmed the assessment of Plaintiff’s credibility despite the
Commissioner’s reliance on the positive Waddell’s signs observed by Dr. Lary Korn during a state
consultative exam. The Court addresses Plaintiff’s objections in turn.
I.

Dr. Siddesh Gundi’s Medical Opinions
Plaintiff contends that the ALJ’s failure to consider several radiology reports in determining

the weight to assign Dr. Gundi’s opinions regarding Plaintiff’s physical impairments was reversible
error. She claims that the reports support Dr. Gundi’s opinions and were “merely recited” by the
ALJ without a proper explanation regarding their relationship to the “little weight” ultimately
assigned to Dr. Gundi’s physical medical source opinions. In response, the Commissioner argues
that the reports were adequately discussed by the ALJ in his determination of the weights to give the
opinions of each medical professional.

The Commissioner contends that, despite Plaintiff’s

argument that Dr. Gundi’s opinions are “well-supported” by the reports, she fails to show how.
Finally, the Commissioner highlights the ALJ’s observation that there was substantial evidence
inconsistent with Dr. Gundi’s opinions, maintaining that such an inconsistency is sufficient to find
that a treating physician’s opinion does not merit controlling weight.
The medical opinion of a treating physician is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Mastro v.
Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Thus, “[b]y negative implication, if a physician’s opinion
is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should
be accorded significantly less weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). Under
such circumstances, “the [Commissioner] holds the discretion to give less weight to the testimony

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of a treating physician in the face of persuasive contrary evidence.” Mastro, 270 F.3d at 178 (citing
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992)).
If the Commissioner determines that a treating physician’s opinion is not entitled to
controlling weight, he must consider the following non-exclusive list of factors to determine the
weight to be afforded the physician’s opinion: (1) the length of the treatment relationship and the
frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidence
with which the physician supports his opinion; (4) the consistency of the opinion; (5) whether the
physician is a specialist in the area in which he is rendering an opinion; and (6) other factors that
support or contradict the opinion. 20 C.F.R. § 404.1527(c); see also Johnson v. Barnhart, 434 F.3d
650, 654 (4th Cir. 2005). The Commissioner must give specific reasons, supported by the record,
for the weight given to a treating physician’s medical opinion. SSR 96-2p.
The Court finds the ALJ’s decision to give Dr. Gundi’s medical opinions contained in an
April 2011 questionnaire “little weight” is supported by substantial evidence and without legal
error.

The ALJ found that Dr. Gundi’s opinions in the questionnaire were inconsistent with

Plaintiff’s daily activities, “the examination of [Plaintiff] by other physicians,” and Dr. Gundi’s own
treating records. Tr. 27–18. Plaintiff does not challenge the ALJ’s finding that Dr. Gundi’s opinions
are inconsistent with the substantial evidence in the record, arguing only that they were wellsupported by the radiology reports. The degree of support an item of evidence provides a medical
opinion, however, is a factual issue that must be decided by the fact-finder—the ALJ, in this case.
Indeed, the evidence highlighted by Plaintiff does not contradict the substantial evidence the ALJ
found to be inconsistent with Dr. Gundi’s medical source opinions, and Plaintiff does not argue the
evidence does. Furthermore, the radiology reports highlighted by Plaintiff were cited by the ALJ in
his summary of Plaintiff’s medical records, indicating that they were considered by the ALJ

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throughout his decision. See Tr. 15.

Accordingly, the Court finds the Magistrate Judge’s

recommendation to be proper.
II.

Plaintiff’s Credibility Assessment
Plaintiff next contends that the ALJ’s consideration of Plaintiff’s positive Waddell’s signs as

a factor in assessing her credibility was legal error. Specifically, she argues that there is neither
evidence in the record that she was a exaggerating her symptoms nor any medical evidence to
suggest that the Waddell’s signs were relevant to her credibility.
Under 20 C.F.R. §§ 404.1529(b), “the determination of whether a person is disabled by pain
or other symptoms is a two-step process.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). The
threshold requirement is that there be “a showing by objective [medical] evidence of the existence
of a medical impairment which could reasonably be expected to produce the actual pain, in the
amount and degree, alleged by [Plaintiff].” Id. (internal quotation marks omitted). Once the ALJ
concludes that this threshold requirement has been met, the ALJ must evaluate “the intensity and
persistence of [Plaintiff’s] pain, and the extent to which it affects her ability to work.” 3 Id. at 595.
“[T]his evaluation must take into account not only [Plaintiff’s] statements about her pain, but also
‘all the available evidence,’ including [Plaintiff’s] medical history, medical signs, and laboratory
findings; any objective medical evidence of pain . . . ; and any other evidence relevant to the
severity of the impairment, such as evidence of [Plaintiff’s] daily activities, specific descriptions of
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Specifically, the following factors relevant to one’s pain and symptoms will be considered by the
Commissioner: (1) the individual’s daily activities; (2) the location, duration, frequency, and
intensity of the individual’s pain or other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate the pain or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms; (6) any measures other than
treatment that the individual uses or has used to relieve pain or other symptoms (such as lying flat
on one’s back, standing for 15 to 20 minutes each hour, etc.); and (7) any other factors concerning
the individual’s functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §
404.1529(c)(3).
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the pain, and any medical treatment taken to alleviate it.” Id. (citations omitted). The ALJ may not
disregard or discredit the Plaintiff’s statements about pain “solely because they are not substantiated
by objective medical evidence.” SSR 96-7p; see also Craig, 76 F.3d at 595. The Fourth Circuit has
held that once a plaintiff meets the “threshold obligation of showing by objective medical evidence
a condition reasonably likely to cause the pain claimed, [Plaintiff is] entitled to rely exclusively on
subjective evidence to prove the second part of the test, i.e., that [the] pain is so continuous and/or
severe that it prevents [Plaintiff] from working a full . . . day.” Hines v. Barnhart, 453 F.3d 559, 565
(4th Cir. 2006).
However,
[t]his is not say . . . that objective medical evidence and other
objective evidence are not crucial to evaluating the intensity and
persistence of a claimant’s pain and the extent to which it impairs her
ability to work. They most certainly are. Although a claimant’s
allegations about her pain may not be discredited solely because they
are not substantiated by objective evidence of the pain itself or its
severity, they need not be accepted to the extent they are inconsistent
with the available evidence, including objective evidence of the
underlying impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the claimant alleges she
suffers.
Craig, 76 F.3d at 595. Finally, the ALJ’s “determination or decision must contain specific reasons
for the finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for that weight.” SSR 96-7p.
The Court finds that the Magistrate Judge’s recommendation is proper. The ALJ gave
“great weight” to the medical assessment of Dr. Carl Anderson, a state agency consultant. Dr.
Anderson specifically observed that her Waddell’s signs “deflate[d Plaintiff’s] credibility
somewhat.” Tr. 241. Accordingly, there was substantial evidence in the record to support the ALJ’s

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finding that Plaintiff’s positive Waddell’s signs were relevant to her credibility and an indication
that her “[a]llegations [were] partially credible.” Id. This evidence sufficiently distinguishes the
case here from Gibson v. Commissioner, 725 F. Supp. 2d 1347 (M.D. Fla. 2010), which Plaintiff
cites. There, the ALJ, without any other evidence in the record, “took out of context and in
isolation the importance of the meaning of Plaintiff’s ‘positive Waddell test.’ ” Id. at 1353. Indeed,
the test results in Gibson were explained and placed in context by the physician who performed the
test. Here, however, Dr. Korn gave no explanation as to the meaning of the test results. The ALJ
was thus entitled to rely on Dr. Anderson’s interpretation in assessing Plaintiff’s credibility, and he
did so within the context of Plaintiff’s daily activities. As such, Plaintiff’s objection must be
overruled.
CONCLUSION
The Court has thoroughly reviewed the entire record as a whole, including the briefs, the
Magistrate Judge’s R&R, Plaintiff’s objections to the R&R, and applicable law. For the reasons set
forth above and by the Magistrate Judge, the Court hereby overrules Plaintiff’s objections and
adopts and incorporates by reference the R&R of the Magistrate Judge. The Commissioner’s
decision is AFFIRMED.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
March 13, 2014
Florence, South Carolina

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