Rouse v. Commissioner Social Security Administration

Filing 23

ORDER rejecting 19 Report and Recommendation. Signed by Honorable David C Norton on September 29, 2017.(cban, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
SANDRA Y. ROUSE,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 6:16-1089-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 Acting
Commissioner of Social Security Nancy A. Berryhill’s1 (the “Commissioner”)
decision denying claimant Sandra Y. Rouse’s (“Rouse”) application for disability
insurance benefits (“DIB”) and Supplemental Security Income (“SSI”). For the
reasons set forth below, the court rejects the R&R, and reverses and remands the
Commissioner’s decision.
I. BACKGROUND
A.

Procedural History

Rouse filed for SSI and DIB on April 7, 2014, alleging that she became
disabled beginning January 27, 2014. Tr. 20. She attributed her inability to work to
her Post-Traumatic Stress Disorder (“PTSD”), Attention Deficit Disorder (“ADD”),

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Nancy A. Berryhill became the Acting Commissioner of Social Security on
Jan 23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the
court substitutes Nancy A. Berryhill for Carolyn W. Colvin as Defendant in this
action.”

anxiety attacks, depression, and other debilitating emotional conditions resulting from
the verbal, physical, and sexual she experienced both as a child and an adult. Tr. 65,
80, 202–205, 232–237, 278. Her claims were denied initially and upon
reconsideration. Tr. 133–137, 145–152. At Rouse’s request, a hearing was held
before Administrative Law Judge Ronald Sweeda (the “ALJ”) on October 7, 2105,
where Rouse and Thomas C. Neil, an impartial vocational expert (“VE”) testified.
Tr. 17–64, 153–154. On November 3, 2015, the ALJ issued a decision finding that
Rouse was not disabled under the Social Security Act. Tr. 17–34. Following the
Appeals Council’s denial of Rouse’s request for review on February 17, 2016, the
ALJ’s decision became the final decision of the Commissioner. Tr. 1–4.
Rouse then filed this action seeking review of the ALJ’s decision. ECF No. 1.
On July 6, 2017, the Magistrate Judge issued an R&R recommending that this court
affirm the ALJ’s decision. ECF No. 19. Rouse filed objections to the R&R on July
20, 2017, ECF No. 20, and the Commissioner filed a reply on August 2, 2017. ECF
No. 22. This matter is now ripe for the court’s review.
B.

Medical History

Because Rouse’s medical history is not directly at issue here, the court
dispenses with a lengthy recitation thereof and only notes a few relevant facts. Rouse
was born on February 21, 1963, and was 50 years old on her alleged disability onset
date. Tr. 39, 202, 232. She communicates in English and has a high school
education, as well as past relevant work experience as a pharmacy technician and
cashier. Tr. 40, 279–280, 306.
C.

ALJ’s Decision

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The ALJ employed the statutorily required five-step sequential evaluation
process to determine if Rouse was disabled between January 27, 2014 and October 7,
2105, the date of the hearing. Tr. 17–29. First, the ALJ determined that Rouse had
not engaged in substantial gainful activity during the relevant period. Tr. 22. Second,
the ALJ found that Rouse had the following severe impairments: partial rotator cuff
tear, degenerative disc disease, anxiety disorder, personality disorder, and depression.
Tr. 22. At step three, the ALJ found that Rouse’s combination of impairments did not
meet or medically equal any of the listed impairments in the Agency’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). Tr. 22–24.
Before reaching the fourth step, the ALJ found that Rouse had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b), with certain restrictions.2 Tr. 24–26. The ALJ noted that Rouse can
perform simple, repetitive tasks with occasional contact with the general public, and
could adjust to occasional changes in her work setting and procedure, but could not
work in a team setting or a fast-paced environment. Id. At step four, the ALJ
determined that Rouse was not capable of performing any past relevant work as a
pharmacy technician and cashier. Tr. 28. Finally, at step five, the ALJ determined
that, considering Rouse’s age, education, work experience, and RFC, there are jobs
that exist in significant numbers in the national economy that she could perform. Tr.
28–29. The ALJ concluded that Rouse was not disabled during the period at issue.
Tr. 29.

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Specifically, the ALJ noted that Rouse could not engage in frequent
climbing, stooping, crouching, crawling, or pushing or pulling with the upper
extremities, but could occasionally engage in overhead reaching. Tr. 24.
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II. STANDARD
This court is charged with conducting a de novo review of any portion of the
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). However, “[a] factual finding by the ALJ is not binding if
it was reached by means of an improper standard or misapplication of the law.”
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

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III. DISCUSSION
Rouse raises five objections to the R&R. First, Rouse objects to the R&R’s
finding that the ALJ properly discredited the opinion of Leanne K. Russell, her
treating counselor. ECF No. 20 at 2–4. She next objects to the R&R “minimiz[ing]
the notion that the treating therapist’s opinion was supported by the opinion of her
treating psychiatrist, Dr. [Lori B.] Gerding.”3 Id. at 4–6. Rouse also contends that
the R&R erred in finding that the ALJ afforded appropriate weight to the assessments
of the state agency medical consultants. Id. at 7. She further objects to the R&R’s
conclusion that the ALJ correctly evaluated her subjective complaints of physical
pain and inability to work due to her mental health issues. Id. at 7–9. Finally, Rouse
objects to the manner in which the ALJ questioned the VE. Since the court remands
based upon the first two objections, it will not address the remainder of Rouse’s
objections to the R&R.
A.

Weight Given to Treating Counselor

Rouse objects to the R&R’s assessment that the ALJ properly discredited the
opinion of her treating counselor Russell. ECF No. 20 at 2. The ALJ discusses two
items of evidence from Russell, a Treating Source Statement—complete with a
Mental Residual Functional Capacity evaluation—and a letter to the Social Security

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Rouse and the R&R refer to Russell as a treating therapist, whereas the
ALJ’s decision refers to her as a counselor. Tr. 26. The court adopts the language of
the ALJ’s decision, even though the analysis would be the same if Russell were a
therapist. See SSR 06-03P, 2006 WL 2329939, at 1–2 (Aug. 9, 2006) (listing
therapists as “medical sources who are not ‘acceptable medical sources’” but whose
opinion should still be considered “to make a disability determination”), Mitchell v.
Colvin, 2014 WL 4436332, at *4 (E.D.N.C. Sept. 9, 2014) (stating that an ALJ must
consider forms completed by therapists).
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Administration. Tr. 523–30. In considering these, the ALJ gave the following
reasons for not finding her opinion credible: (1) “[t]he counseling notes reflect that
much of the claimant’s anxiety has arisen out of concern of where the claimant would
reside when her daughter got married,” and (2) her “opinion fails to address the issue
of non-compliance with the suggested medication regimen.” Tr. 26. Ultimately, the
ALJ found that Russell’s “opinion does not reflect the same degree of severity as
noted in the treatment notes.” Id. The Commissioner responded to Rouse’s objection
to this finding, first arguing that the ALJ’s decision is correct based on the “simple
fact that her therapist did not consider her concerns about her living arrangements
when providing her opinion,”4 ECF No. 22 at 2, and because Russell failed to address
the fact that “Plaintiff’s symptoms significantly improved while medicated,” id. at 2–
3. The court disagrees with the ALJ’s findings on this point.
In listing the types of evidence considered by ALJs when determining
disability, 20 C.F.R. § 404.1527(f) discusses “[o]pinions from medical sources who
are not acceptable medical sources and from nonmedical sources.” ALJs are to
evaluate these opinions using the same factors relied upon for assessing all other
medical opinions, see § 404.1527(c)(1)–(c)(6), because opinions from nonmedical

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The Commissioner appears to interpret the ALJ’s comment regarding
Russell’s counselling notes—that they “reflect that much of the claimant’s anxiety
has arisen out of concern of where the claimant would reside when her daughter got
married”—differently than the court. By the court’s understanding, the ALJ
discredits Russell’s opinion partly because he believes it puts too much weight on the
anxiety Rouse felt from moving, without adequately addressing the more serious
mental health issues that are reflected in the rest of the treatment notes in the record.
By contrast, the Commissioner seems to interpret the comment to mean that the ALJ
believes Russell should have given more attention to Rouse's moving anxiety in
drafting her opinion.

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sources may still “reflect the source’s judgment about some of the same issues
addressed in the medical opinions from acceptable medical sources,”
§ 404.1527(f)(1). Additionally, the “adjudicator generally should explain the weight
given to opinions from these sources.” § 404.1527(f)(1)–(2). Counselors like Russell
fall under the category of “nonmedical sources,” and the ALJ should consider her
opinion when assessing all of the evidence. See SSR 06-03P at 2.
Even though the ALJ considered Russell’s opinion, he deemed it not credible
on two grounds. Tr. 26. The court finds that the ALJ’s grounds for rejecting
Russell’s opinion are not supported by substantial evidence. First, the ALJ finds that
Russell’s Treating Source Statement and letter to the Social Security Administration
are not credible, because these “counseling notes reflect that much of the claimant’s
anxiety has arisen out of concern of where the claimant would reside when her
daughter got married,” and therefore are not consistent with the “degree of severity as
noted in the treatment notes.” Tr. 26. However, the Treating Source Statement and
letter—four total pages of information from Russell assessing Rouse’s mental health
and functioning capacity—collectively only dedicate one sentence to the fact that
Rouse would have to leave her daughter’s home soon because of her daughter’s
impending marriage. Tr. 523–30. The rest of the letter and treating source statement
are about the range of mental health issues that Rouse faces, such as “Axis I disorders
including PTSD, Panic Disorder, Major Depressive Disorder, Alcohol Dependence,
and Axis II Borderline Personality Disorder,” attributing most of Rouse’s issues to
the abuse she received as a child. Tr. 530. Russell clearly states that Rouse is
“unable to work due to a lack of being able to have appropriate relationship with

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others,” and that the “severe limitations” resulting from of all of her mental and
emotional restrictions will render her homeless. Id. Therefore, the court finds that
substantial evidence does not support the ALJ’s conclusion that Russell’s opinion
does not reflect the same degree of severity as the rest of the treatment notes in the
record—Russell addresses Rouse’s severe mental and emotional limitations resulting
from her childhood abuse, in addition to mentioning the potential for Rouse to be
forced to leave her daughter’s home.
Second, the ALJ found Russell’s opinion not credible because it “fails to
address the issue of non-compliance with the suggested medication regimen.” Tr. 26.
However, the purpose of the Treating Source Statement and letter submitted by
Russell is to assess Rouse’s mental functioning and ability to engage in work as of the
date of those examinations. They are not intended to act as a complete, detailed
mental health history. The absence of discussion about Rouse’s prior non-compliance
with medical advice and medication prescriptions does not in and of itself render
Russell’s opinion as not credible. Therefore, on remand the court directs the ALJ to
explain further why he does not find the opinion of Russell, a treating counselor, not
to be credible.
B.

Disregarding Dr. Gerding’s Medical Opinion

Rouse also objects to the Magistrate Judge’s agreement with how the ALJ
treated the evidence offered by Dr. Gerding, Rouse’s treating psychiatrist. While the
ALJ does not conclude that Dr. Gerding’s opinion did not constitute a “medical
opinion,” the ALJ states that Dr. Gerding “did not offer an opinion of the claimant’s
functional limitations.” Tr. 26. The Commissioner first makes the argument that Dr.

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Gerding’s medical source statement is not a medical opinion as defined in §
404.1527(a), in her Memorandum in Support of the Commissioner’s Decision and in
Response to the Plaintiff’s Brief.5 ECF No. 16 at 8. The R&R reiterates the ALJ’s
observation, again without concluding that Dr. Gerding failed to offer a “medical
opinion.” ECF No. 19 at at 25. Rouse objects to the R&R, arguing it is “incorrect in
suggesting that the findings of Dr. Gerding do not themselves constitute medical
opinion evidence.” ECF No. 20 at 4. In the Commissioner’s reply brief, she repeats
her argument that “Dr. Gerding did not provide a medical opinion in this case that
could be used to support Ms. Russell.” ECF No. 22 at 3. The court disagrees with
the Commissioner and finds instead that Dr. Gerding’s statement constitutes a
“medical opinion.” The court remands to the ALJ to explain what weight he assigned
to Dr. Gerding’s opinion as Rouse’s treating physician.
Adjudicators should consider all medical opinions that are entered as
evidence, and generally “give more weight to medical opinions from [plaintiffs’]
treating sources.” § 404.1527(c)(2); see Lewis v. Berryhill, 858 F.3d 858, 866–67
(4th Cir. 2017) (“[T]he ALJ is required to give ‘controlling weight’ to opinions
proffered by a claimant's treating physicians so long as the opinion is ‘well-supported
by medically acceptable clinical and laboratory diagnostic techniques’ . . .”), Craig v.
Chater, 76 F.3d 585, 590 (4th Cir. 1996) (finding that controlling weight should be
given to a treating physician’s opinion if not inconsistent with other substantial
evidence in the record). Adjudicators should also “always give good reasons in

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The court is restricted to reviewing whether substantial evidence supports the ALJ’s
findings, and whether the ALJ correctly applied the law. A party may not interpret
the ALJ’s decision and ask the court to affirm this interpretation.
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[their] notice of determination or decision for the weight [they] give [a] treating
source’s medical opinion.” § 404.1527(c)(2); see Tanner v. Comm'r of Soc. Sec., 602
F. App’x 95, 100 (4th Cir. 2015) (“An ALJ is required to assign weight to every
medical opinion in a claimant's record.”), Gordon v. Schweiker, 725 F.2d 231, 235
(4th Cir. 1984) (“We cannot determine if findings are unsupported by substantial
evidence unless the Secretary explicitly indicates the weight given to all of the
relevant evidence.”). Here, the ALJ states that Dr. Gerding is a treating physician.
Tr. 26. However, whether Dr. Gerding’s opinion constitutes a “medical opinion”
must first be determined before deciding whether the ALJ properly addressed the
opinion in accordance with §404.1527(c).
Section 404.1527(a)(1) defines medical opinions as “statements from
acceptable medical sources that reflect judgments about the nature and severity of
your impairment(s), including your symptoms, diagnosis and prognosis, what you can
still do despite impairment(s), and your physical or mental restrictions.”6
§ 404.1527(a)(1). Medical opinions may include a detailed analysis of the claimant’s
functional limitations, using language similar to that in an ALJ’s assessment of the
plaintiff’s RFC. However, that level of specificity is not necessarily required, as the
purpose of the “medical opinion” is for the treating physician to provide the
adjudicator with an adequate assessment of the “nature and severity” of the claimed
impairment. See Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (focusing on the

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 Licensed physicians qualify as “acceptable medical sources.” SSR 06-03P, at
1; see 20 C.F.R. § 416.913(a)(1) (listing licensed medical physicians as acceptable
medical sources). 

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“treating physician’s opinion on the nature and severity of the claimed impairment”
when discussing medical opinions) (emphasis added).
In Beck v. Astrue, the ALJ originally determined that the claimant’s treating
neurosurgeon did not offer a specific assessment of the nature and severity of the
claimant’s impairments. Beck v. Astrue, 663 F. Supp. 2d 1212, 1217 (N.D. Ala.
2009). The treating physician had noted that the claimant’s severe degeneration of
the bones in her cervical spine caused “severe neck pain.” Id. The district court
disagreed with the ALJ, finding that the doctor’s discussion of these symptoms
“certainly qualifies as a medical opinion under the Commissioner’s regulations.” Id.
at 1218. Likewise, in Wider v. Colvin, the ALJ originally determined that the treating
physician’s statements were not a “medical opinion,” and refused to give them weight
in accordance with the standard required for treating physicians. Wider v. Colvin,
2017 WL 1169558, at *8 (E.D.N.Y. Mar. 29, 2017). In Wider the treating physician
had diagnosed the claimant with schizoaffective disorder, insomnia, and personality
disorder, and had prescribed several drugs for psychological issues. Id. at 7. The
physician next offered his opinion about the claimant’s “impulse control, insight,
judgment, attention, memory, mood, and his ability to carry out daily
responsibilities.” Id. The Commissioner argued that these statements were not
medical opinions, but were simply treatment notes. Id. at 5. The court, however,
found that the doctor’s notes were medical opinions because they explicitly included
diagnoses and “statements reflecting judgments about the nature and severity of the
Plaintiff’s impairment.” Id.

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In Rouse’s case, the Commissioner argues that because Dr. Gerding
“completed a form setting forth [only] Plaintiff’s diagnoses, symptoms, and
treatment,” it was not a medical opinion, because it did not address the Rouse’s
functional limitations. ECF No. 20 at 3. However, the Commissioner does not give
adequate weight to portions of Dr. Gerding’s opinion that discuss Rouse’s “physical
and mental restrictions.” Combined with her notes on Rouse’s symptoms and
diagnoses, Dr. Gerding’s opinion presents an adequate picture of the “severity and
nature” of Rouse’s impairments, making it an acceptable medical opinion.
In Beck, the doctor’s statements about the plaintiff’s symptoms qualified as a
medical opinion, because it sufficiently addressed the severity and nature of the
impairment. Beck, 663 F. Supp. 2d at 1219. Similarly, Dr. Gerding’s statements
about the severity of Rouse’s symptoms resulting from her diagnoses of PTSD, panic
disorder, major depressive disorder, and borderline personality disorder qualify as a
medical opinion, as they sufficiently address the nature and severity of her
impairment. Dr. Gerding described how Rouse continued to show “extreme
[symptoms] of PTSD,” such as insomnia, anxiety, hypervigilance, panic attacks,
flashbacks, nightmares, poor self-esteem, and depressed mood. Tr. 532. In Wider,
the treating physician diagnosed the claimant, prescribed her medication, then opined
on certain traits that would affect her interpersonal interactions and ability to carry
out daily activities. Wider, 2017 WL 1169558, at *8. Likewise, Dr. Gerding’s report
lists Rouse’s diagnoses and prescriptions, and then opines that Rouse’s PTSD has
resulted in avoidance behavior and poor interpersonal relationships, to the extent that
Rouse did not understand “how to be real” or “understand what normal is due to her

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treatment as a child,” and that she was working to “find some kind of reality that she
understands.” Tr. 532.
Dr. Gerding’s opinions constitute medical opinions, because they expound
upon the “physical and mental restrictions” resulting from her diagnosed mental
health conditions and discuss the extent of her ability to engage in society normally.
They adequately describe the “nature and severity” or her impairments, and should
have been evaluated as a medical opinion from a treating physician.
Therefore, remand for further consideration is appropriate. On remand, the
ALJ should more adequately explain why it finds Russell’s opinion not credible, and
should describe the weight he gives to Dr. Gerding’s medical opinion.
IV. CONCLUSION
Based on the foregoing, the court REJECTS the magistrate judge’s R&R,
REVERSES the Commissioner’s decision, and REMANDS the case for further
administrative proceedings.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 29, 2017
Charleston, South Carolina

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