Leap v. Commissioner of Social Security Administration
Filing
28
ORDER RULING ON REPORT AND RECOMMENDATIONS adopting in part, denying in part 23 Report and Recommendations: the decision of the Commissioner is reversed and the case remanded to the Commissioner pursuant to sentences four an d six of 42 U.S.C. § 405(g)for further administrative action consistent with the within Opinion and Order. Signed by Chief Judge Margaret B Seymour on 3/29/12. (alew, ) Modified on 3/29/2012 to add space(alew, ). (Main Document 28 replaced on 3/29/2012) (alew, ). Modified on 3/29/2012 to correct case number (alew, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Teresa J. Leap,
)
) C/A No. 8:10-2995-MBS
Plaintiff,
)
)
vs.
)
)
OPINION AND ORDER
Michael J. Astrue, Commissioner of
)
Social Security Administration,
)
)
Defendant.
)
____________________________________)
This is an action brought pursuant to Section 205(g) of the Social Security Act (the “Act”),
codified as amended at 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”).
I. PROCEDURAL HISTORY
Plaintiff Teresa J. Leap alleges that she has been disabled since April 1, 2008, because of
problems with her back. Plaintiff filed an application for a period of disability and disability
insurance benefits on April 29, 2008. Her application was denied initially and upon reconsideration.
Plaintiff requested a hearing before an administrative law judge (“ALJ”). The ALJ held a hearing
on February 11, 2010. On March 24, 2010, the ALJ issued a decision that Plaintiff was not disabled
under sections 216(i) and 223(d) of the Act. On October 26, 2010, the ALJ’s decision became the
“final decision” of the Commissioner after the Appeals Council determined that there was no basis
for granting Plaintiff’s request for review. Plaintiff thereafter brought this action pursuant to 42
U.S.C. § 405(g), seeking judicial review of the “final decision” of the Commissioner.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge Jacquelyn D. Austin for a Report and Recommendation. On
February 15, 2012, the Magistrate Judge filed a Report and Recommendation in which she
recommended that the Commissioner’s decision to deny benefits be reversed and the case remanded
to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative
action. The Commissioner filed objections to the Report and Recommendation on March 5, 2012,
to which Plaintiff filed a reply on March 22, 2012.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). This
court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. This court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id.
II. STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 205(g) of 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 a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th
Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes
the court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).
The court must uphold the Commissioner’s decision as long as it is supported by substantial
evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this it does not follow,
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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). “[T]he courts must not
abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner’s] findings, and that his conclusion is rational.” Vitek, 438 F.2d
at 1157-58.
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, 517 (4th Cir. 1987). However, the
Commissioner’s denial of benefits shall be reversed only if no reasonable mind could accept the
record as adequate to support that determination. Richardson v. Perales, 402 U.S. 389, 401 (1971).
III. DISCUSSION
A.
Factual Background
Plaintiff was forty-six years old at the time of her claimed disability. She has past relevant
work as an administrative assistant, realtor, legal assistant, sales associate, and accounting controller.
See Tr. 14. Plaintiff’s medical records show that she has been treated for back pain since at least
September 29, 1998 when she presented to Charleston Neck & Back Center after falling off a boat
onto a dock. See Tr. 301-03. Plaintiff had a lumbar laminectomy in 2003, followed by fusion and
instrumentation six weeks later, and removal of the hardware in 2004. See Tr. 329. Her relevant
medical history is as follows.
Plaintiff was referred by Dr. Kanich to Bon Secours St. Francis Hospital on August 11, 2006,
for x-rays of her lumbar spine. The reading radiologist, Jeffrey K. Short, M.D., noted that the x-ray
indicated surgical changes at the L5-S1 level including what appeared to be a fusion and application
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of lateral bony material. There was no indication of fracture or subluxation. The sacroiliac joints
were intact and unremarkable. No acute bony abnormality was apparent. Tr. 244.
Plaintiff presented to Stephen Rawe, M.D. on August 30, 2006 complaining of a “multitude
of problems,” including back pain which was doing well until she returned to working in a law office
as opposed to selling real estate. She was taking Darvocet and had been doing pilates. She had a
good range of motion of the cervical spine. She had no obvious weaknesses, reflex, or sensory
abnormalities in the upper extremities and no findings to indicate myelopathy or radiculopathy. She
exhibited good knee and leg reflexes and straight leg raising was negative. Tr. 203.
Plaintiff presented to Bon Secours St. Francis Hospital on August 30, 2006 for x-rays of her
spine to determine cervical spondylosis.
The x-rays presented no evidence of fracture or
malalignment. The disc spaces appeared well preserved and there appeared to be normal motion on
the flexion and extension radiographs. The paraspinous soft tissues were unremarkable. The reading
radiologist, Timothy J. Berrigan, M.D. noted a negative impression for cervical spondylosis. Tr.
230.
An MRI of the cervical spine was performed by Radiology Associates on September 1, 2006.
The vertebral body alignment was within normal limits. There were no focal areas of bone marrow
signal abnormality. There was no evidence of abnormal spinal cord signal. Evaluation of the portion
of posterior fossa visualized appeared unremarkable. Mild left uncovertebral spurring was noted at
C3-C4 with no significant stenosis. Minimal disc bulging, no significant stenosis was noted at C4C5. Left-sided degenerative facet joint arthopathy, mild diffuse disc osteophytic bulge, minimal
flattening of the ventral cord without significant central canal stenosis, and mild left neural foraminal
narrowing was noted at C5-C6. No disc bulge or protrusion or stenosis was noted at C6-C7. C7-T1
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appeared to be normal. Tr 204.
Plaintiff was seen at the Charleston Neck & Back Center on December 4, 2006. Regarding
her back, she reported three lumbar surgeries by Dr. Rawe that she described as a fusion and
subsequent insertion and removal of screws and rods. Dr. Joseph W. Bartlett noted cervical,
thoracic, lumbar, and sacroiliac segmental dysfunction and pelvic joint dysfunction to be treated with
manipulation three times per week for one month. He also prescribed massage therapy three times
per week for six weeks and supervised electric stimulation for fifteen minutes for a minimum of
three times per week for six weeks. Tr. 255-60.
Plaintiff was treated at the Charleston Neck & Back Center on December 6, 2006; December
11, 2006; December 13, 2006, May 3, 2007. Tr. 261-270.
Plaintiff was examined by Mark D. Netherton, M.D. of Palmetto Interventional Pain
Management on December 12, 2007. He indicated that she had a diagnosis of lumbar radiculitus.
He gave Plaintiff an L5-S1 lumbar steroid epidural injection. Tr. 210.
Plaintiff presented to Dr. Rawe on April 3, 2008. It had been one and one-half years since
her last evaluation. Plaintiff reported that when her back bothers her, it causes a flare-up of other
symptoms, including headaches. Dr. Rawe reported that Plaintiff was evaluated by Dr. Netherton
a few weeks previously and had local trigger point injections, which resulted in exacerbation of her
low back and bilateral thigh discomfort. Plaintiff exhibited significant tenderness of the hips and
low back, but had relatively good range of motion. Straight leg raising psoas stretch tests were
negative. Knee and ankle reflexes were present. Plaintiff had no sensory abnormalities and no
findings to indicate a myelopathy. Dr. Rawe expressed concern that Plaintiff might have a
fibromyalgia-like syndrome. Dr. Rawe recommended that Plaintiff take Darvocet. He did not see
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any indication that Plaintiff had structural abnormalities. Tr. 206.
Plaintiff was evaluated at the Southeastern Spine Institute on April 9, 2008. Plaintiff
complained of a burning, aching pain in her low back along with stabbing pain down both legs since
September 2007. Richard C. Holgate, MD reviewed an MRI of Plaintiff’s lumber spine and noted
that the lumbar spine showed normal bony alignment and normal marrow signal with no evidence
of a congenital anomaly of the spine. Images of the hips, sacroiliac joints, piriformis muscles, and
proximal sciatic nerves revealed no abnormality. Views of the distal thoratic spine showed a normal
spinal cord and conus medullaris, normal vertebra and no evidence of abnormal discs. L1-2, L2-3,
L3-4 showed normal disc space height and signal without disc bulge or herniation of disc material
beyond its normal confines. There was no evidence of entrapment of the nerve roots in the exit
foramen, lateral recess, or in the central canal. At L4-5 there was mild diffuse signal loss. There was
no facet arthopathy and minimal bulge of disc, but no evidence of a compressive change could be
seen. At L5-S1, there was noted a previous surgical intervention that appeared to have been an
interbody fusion and a left-side laminectomy. There was no evidence of residual or recurrent
herniation or nerve root compression. Tr. 213-14.
On April 15, 2008, Dr. Rawe noted that an MRI scan of the lumbar spine indicated no
obvious instability and the fusion site at L5-S1 was solidly in place. Tr. 207. On April 17, 2008,
Dr. Rawe noted that Plaintiff’s MRI scan results were reviewed and looked excellent. Dr. Rawe
observed that Dr. Netherton was considering doing facet injections, among other things. Dr. Rawe
opined that he believed the pain management was appropriate and that she had no further disc issues
that would require operative intervention. Tr. 347.
Plaintiff presented to the Charleston Neck & Back Center on April 21, 2008, complaining
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of pain, numbness, stiffness, and weakness in her spine, ribs, and pelvic region. She described the
pain as sharp and radiating. Dr. Barlett noted moderate lumbar strain. Left straight leg raising test
revealed radicular pain beginning or exacerbating at 35 to 70 degree of hip flexion, indicating
possible sciatic nerve root irritation by intervertebral disc pathology or an intradural lesion. A
Kemp’s Test on the left showed localized low back pain indicating lumbar pericapsulitis. Dr. Barlett
diagnosed lumbar segmental dysfunction, sacroiliac segmental dysfunction and pelvic joint
dysfunction to be treated with manipulation, and lumbar capsulitis, late effect strain, spasm, and
lumbosacral strain to be treated with electric stipulation three times per week for one month. Tr.
271-73. Plaintiff was treated on April 22, 2008; April 24, 2008; April 25, 2008; April 28, 2008;
April 30, 2008; May 5, 2008. Tr. 271-85. Dr. Bartlett reported improvement in Plaintiff’s spasms
and late effect strain on June 4, 2008. Tr. 335-36.
Richard Smith, M.D. prepared a Physical Residual Functional Capacity Assessment on July
10, 2008. He determined that Plaintiff could occasionally lift twenty pounds, frequently lift ten
pounds, stand and/or walk about six hours in an eight-hour workday, sit about six hours in an eighthour work day. She had no restrictions for pushing and/or pulling. He found she could frequently
climb ramp/stairs, balance, kneel, and crawl; and occasionally climb ladders/ropes/scaffolds, stoop,
and crouch. He determined that the evidence was consistent with functional limitations of light work
secondary to disorders of the back. Tr. 322-29.
On July 15, 2008, Plaintiff was treated at Charleston Neck & Back Center and reported that
her low back was somewhat better. Plaintiff was treated on July 18, 2008; July 21, 2008; July 31,
2008. On July 31, 2008, Dr. Barlett noted improvement in Plaintiff’s subjective and/or objective
status. Tr. 337-44.
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Dr. Rawe completed a Residual Functional Capacities evaluation on September 25, 2008.
Dr. Rawe determined that during an eight hour day Plaintiff could sit a total of thirty-five minutes
at any one time, stand a total of forty-five minutes at any one time, and walk a total of twenty
minutes at any one time. He noted that Plaintiff could occasionally lift/carry/push/pull less than ten
pounds and never lift/carry/push/pull ten to twenty pounds or twenty to fifty pounds. Tr. 150.
According to Dr. Rawe, Plaintiff should be able to use her extremities for repetitive actions over an
eight-hour day, such as simple grasping, handling, and hand manipulating with both hands/arms; but
never be able to use her extremities for repetitive actions over an eight-hour day, such as pushing and
pulling with her hands/arms and operating foot/leg controls with either of her legs/feet. Dr. Rawe
determined that Plaintiff should be able, over an eight-hour day, to occasionally kneel, crawl, and
use her hands above shoulder level, but never squat or stoop. He also determined that Plaintiff
should never be exposed to unprotected heights or moving machinery at work, but could occasionally
be exposed at work to noise and vibration; dust, fumes, and gases; and extreme heat. Tr. 151. Dr.
Rawe opined that, because of prolonged and constant pain, Plaintiff was capable of only minimal
physical activity. He opined that Plaintiff’s condition causes pain that would likely affect her ability
to concentrate. He also stated that Plaintiff has lumbar facet arthopathy that is moderately painful
and restricts her activity. Tr. 152. According to Dr. Rawe, no medication taken by Plaintiff has
known side effects and/or requires additional limitations on her activity. Tr. 153. Dr. Rawe also
opined that Plaintiff meets the criteria of Listing 1.04 (Disorders of the Spine).
Plaintiff was seen by Jeffrey W. Folk, M.D. of Pain Associates of Charleston on April 2,
2009. Dr. Folk noted mild paraspinous tenderness throughout, fair range of motion of lumbar spine.
He noted slight left straight leg raise with extension of the lower left extremity. Dr. Folk assessed
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left lower extremity pain, low back pain, radiculopathy. He prescribed left L4-L5 and L5-S1
transforaminal epidural injections and instructed Plaintiff to return in two weeks. Tr. 355-56.
Frank Ferrell, M.D. prepared a Physical Residual Functional Capacity Assessment on May
6, 2009. He determined that Plaintiff could occasionally lift twenty pounds, frequently lift ten
pounds, stand and/or walk about six hours in an eight-hour workday, sit about six hours in an eighthour work day. She had no restrictions for pushing and/or pulling. He found she could frequently
climb ramp/stairs, and balance. He determined that she could occasionally balance, stoop, kneel,
crouch, crawl, and climb ladders/ropes/scaffolds. He noted that Plaintiff’s symptoms of chronic pain
with low back pain and spasm were credible, but that partially credible was the degree of discomfort
without supportive clinical/objective findings. Tr. 357-64.
B.
The Hearing Before the ALJ
At the hearing before the ALJ, Plaintiff testified that she has a high school education and one
year of college. Plaintiff has degenerative disk disease and two fused disks. Tr. 24. She underwent
surgery in 2002, and despite pain attempted to continue working. Tr. 25. Plaintiff testified that she
takes pain medication every morning when she wakes up. She stays in bed most of the day. Tr. 25.
It is painful to sit, and her legs go numb when she sits on the toilet. She has discomfort in her
shoulder and neck. Tr. 26. She can walk for short periods of time, but the backs of her heels hurt.
Tr. 26-27. Plaintiff testified that she has had nerve block injections and physical therapy. Tr. 27.
Plaintiff stated that she did no housework, but that she prepared light meals, such as
sandwiches and ready-made items. Id. She has problems with her balance and has to catch herself
to keep from falling. Plaintiff testified that her pain medication makes her drowsy and interferes
with her ability to think. She stated that she tried hard to return to work after her surgery, but was
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unable to perform. Tr. 28. According to Plaintiff, she got to the point that she could not take more
and more pain medicine and try to start new jobs and then quit them. Tr. 29.
C.
The ALJ’s Decision
The ALJ noted that Plaintiff had not engaged in substantial gainful activity since April 1,
2008, the alleged onset date. The ALJ found that Plaintiff has the following severe impairment:
status/post surgeries of the lumbar spine. The ALJ further determined that Plaintiff’s history of prior
back surgeries did not meet the requirements of Listing 1.04 as set forth in 20 C.F.R. Part 404,
Subpart P, Appendix 1. He determined that Plaintiff has the residual functional capacity to perform
light work as defined in 20 C.F.R. § 404.1567(b), with the condition that Plaintiff’s pain limits her
to simple, routine, repetitive tasks. The ALJ considered all symptoms and the extent to which these
symptoms could reasonably be accepted as consistent with the objective medical and other evidence,
including opinion evidence. He found that Plaintiff’s medically determinable impairment could
reasonably be expected to cause the alleged symptoms; however, he found that Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not fully credible
to the extent her statements were inconsistent with the residual functional capacity assessment. The
ALJ found that Plaintiff’s back pain has been well controlled since surgery. He also noted that
although Plaintiff testified that she was unable to perform the duties of her work because of an
increasing need for pain medication, her testimony was not consistent with the record, which showed
a good result with no follow-up surgeries indicated. The ALJ observed that Plaintiff’s treatment
since the onset date had been conservative and clinical findings had been relatively benign.
The ALJ accorded little weight to Dr. Rawe’s conclusions as set forth in his Residual
Functional Capacities form because his limitations were not supported by any clinical findings,
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including those of Dr. Rawe himself. The ALJ accorded significant weight to the opinions of the
State Agency medical consultants, Dr. Ferrell and Dr. Smith. The ALJ determined that the clinical
findings and other evidence of record fail to support Plaintiff’s allegations of debilitating pain. He
stated that he gave Plaintiff the benefit of the doubt in limiting her postural activities and in
deference to her pain he limited her to simple, routine, repetitive tasks.
Because of the
inconsistencies in the record as a whole, the ALJ found that Plaintiff’s allegations she is incapable
of work activity altogether to be not credible.
The ALJ determined that Plaintiff is unable to perform any past relevant work. The ALJ
further found that, if Plaintiff had the residual functional capacity to perform the full range of light
work, considering her age, education, and work experience, a finding of “not disabled” would be
directed by the Medical-Vocational Rule 202.21. He determined, however, that the additional
limitations placed on Plaintiff have little or no effect on the occupational base of unskilled light
work. According to the ALJ, Plaintiff’s ability to perform postural limitations occasionally would
leave the light occupational base virtually intact. Accordingly, the ALJ found that Plaintiff had not
been under a disability, as defined in the Act, from April 1, 2008, through the date of the decision,
March 4, 2010.
D.
The Report and Recommendation
Plaintiff contended that the ALJ erred by (1) rejecting the opinion of Plaintiff’s treating
physician, Dr. Rawe; (2) failing to properly evaluate Plaintiff’s allegations of pain; and (3) failing
to obtain expert vocational testimony.
1.
As to the treating physician opinion, the Magistrate Judge properly noted that an ALJ
is obligated to evaluate and weigh medical opinions pursuant to the nonexclusive list of factors set
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forth in Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005), i.e., (1) whether the physician has
examined the applicant; (2) the treatment relationship between the physician and the applicant; (3)
the supportability of the physician’s opinion; (4) the consistency of the opinion with the record; and
(5) whether the physician is a specialist. See also 20 C.F.R. § 404.1527. The Magistrate Judge
concluded that the ALJ failed to provide any discussion of how he weighed the Johnson factors when
assigning Dr. Rawe’s opinion little weight and assigning significant weight to the State Agency
medical consultants. According to the Magistrate Judge, the ALJ failed to address Dr. Rawe’s
clinical findings that do support Dr. Rawe’s opinion, such as restricted range of motion and disc
bulging; or findings of other treating physicians. The Magistrate Judge further determined that the
ALJ’s assignment of weight is inconsistent with Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir.
1986) (noting that the opinion of a treating physician may be disregarded only if there is persuasive
contradictory evidence; that the testimony of a nonexamining physician can be relied upon when it
is consistent with the record; and that, when the expert testimony from examining or treating
physicians goes both ways, a determination coming down on the side of the nonexamining,
nontreating physician should stand).
2.
Regarding Plaintiff’s allegations of pain, the Magistrate Judge found the ALJ failed
to adequately discuss the evidence in the entire record, including evidence that would support
Plaintiff’s credibility. The Magistrate Judge concluded that the ALJ’s failure to more specifically
state his reasons for his finding on credibility prevented the Magistrate Judge from finding
substantial evidence supports the ALJ’s decision as to this issue. See Hatcher v. Sec’y, Dep’t of
Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989) (noting that the ALJ’s credibility
determinations should refer specifically to the evidence informing the ALJ’s conclusion; and that
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it is especially crucial in evaluating pain).
3.
With respect to the ALJ’s failure to employ expert vocational testimony, the
Magistrate Judge noted that an ALJ may not rely exclusively on the grids when a claimant suffers
from a nonexertional impairment that restricts his ability to perform work of which he is exertionally
capable. See Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989) (noting that when a claimant suffers
from both exertional and nonexertional limitations, the grid tables are not conclusive but may only
serve as guidelines) (citing Wilson v. Heckler, 743 F.2d 218 (4th Cir. 1984)). The Magistrate Judge
noted that the ALJ was required to produce specific vocational evidence showing the national
economy offers employment opportunities to Plaintiff. See id. at 50 (citing Taylor v. Weinberger,
512 F.2d 664 (4th Cir. 1975)). Accordingly, the Magistrate Judge concluded that she was unable to
determine whether the ALJ’s findings are supported by substantial evidence. For these reasons, the
Magistrate Judge recommended that the Commissioner’s decision be reversed and remanded for
further administrative action.
E.
The Commissioner’s Objections to the Report and Recommendation
1.
The Commissioner first contends that the Magistrate Judge erred in finding that the
ALJ did not properly explain his reasons for according little weight to Dr. Rawe’s opinions. The
court agrees.
In this case, the ALJ noted that Dr. Rawe’s own clinical findings did not support his Residual
Functional Capacities evaluation. As set forth in detail hereinabove, a review of the record
demonstrates that on April 8, 2008, approximately five months before the Residual Functional
Capacities evaluation, Dr. Rawe noted that Plaintiff exhibited significant tenderness of the hips and
low back, but had relatively good range of motion; her straight leg raising psoas stretch tests were
13
negative; her knee and ankle reflexes were present; she had no sensory abnormalities and no findings
to indicate a myelopathy or structural abnormalities. On April 15, 2008, he noted that an MRI scan
of the lumbar spine indicated no obvious instability and the fusion site at L5-S1 was solidly in place.
On April 17, 2008, Dr. Rawe noted that Plaintiff’s MRI scan results were reviewed and looked
excellent; that Dr. Netherton was considering doing facet injections; that the pain management was
appropriate; and Plaintiff had no further disc issues that would require operative intervention. Thus,
Dr. Rawe’s Residual Functional Capacities evaluation was inconsistent with his own records.
Dr. Rawe’s Residual Functional Capacities evaluation also is inconsistent with other
evidence in the record. Richard C. Holgate, MD, in reviewing Plaintiff’s MRI of her spine, found
no abnormalities. He noted that at L4-5 there was mild diffuse signal loss; no facet arthopathy and
minimal bulge of disc; and no evidence of a compressive change. At L5-S1, there was noted a
previous surgical intervention, but there was no evidence of residual or recurrent herniation or nerve
root compression. Plaintiff’s pain was relieved by treatment by Dr. Bartlett and injections by Dr.
Netherton and Dr. Folk. The ALJ’s discussion addresses the supportability of the physician’s
opinion and the consistency of the opinion with the record, as required by Johnson and 20 C.F.R.
§ 404.1527.
The ALJ gave significant weight to the opinions of the State Agency medical consultants,
Dr. Ferrell and Dr. Smith. The testimony of a nonexamining physician can be relied upon when it
is consistent with the record. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1968) (citing Kyle v.
Cohen, 449 F.2d 489, 492 (4th Cir. 1971). The court concludes that substantial evidence supports
the ALJ’s decision as to this issue.
2.
The Commissioner next argues that the Magistrate Judge erred in finding that the
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ALJ’s credibility evaluation was not supported by substantial evidence. The court agrees.
The determination of whether a person is disabled by pain or other symptoms is a two-step
process. First, the claimant must produce objective medical evidence showing the existence of a
medical impairments that could reasonably be expected to produce the pain alleged. Craig v. Chater,
76 F.3d 585, 594 (4th Cir. 1996). Second, the intensity and persistence of the claimant’s pain, and
the extent to which it affects her ability to work, must be evaluated. Id. at 595. The second step is
analyzed using statements from treating and nontreating sources and from the claimant. 20 C.F.R.
§§ 404.1529(a), 416.929(a) (2011). The relevant factors in evaluating the claimant's statements
include consistency in the claimant's statements, medical evidence, medical treatment history, and
the adjudicator's observations of the claimant. See SSR 96–7p.
In this case, the ALJ found that Plaintiff satisfied the first prong of the test, such that her
medically determinable impairment could reasonably be expected to cause the pain alleged.
However, he found Plaintiff’s statements concerning the intensity, persistence, and limiting effects
of pain to be not fully credible based on evidence in the record prior to the alleged onset date of April
1, 2008 that Plaintiff had returned to work and had been doing pilates, and that medical examinations
revealed no abnormalities or need for further surgical intervention. The ALJ took issue with
Plaintiff’s testimony that she was unable to perform the duties of her work because of an increasing
need for pain medication, noting that the statement was not consistent with the record. The ALJ
further noted that Plaintiff’s treatment since her alleged onset date was conservative and clinical
findings relatively benign.
The court notes no evidence in the record, other than Plaintiff’s testimony, indicating that
Plaintiff required additional medication, or that the medication made her drowsy so that she could
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not work. 1 As set forth in detail hereinabove, the medical records further do not support Plaintiff’s
allegations of debilitating pain. The court concludes that substantial evidence supports the ALJ’s
decision as to this issue.
3.
Finally, the Commissioner asserts that the Magistrate Judge erred in finding that the
ALJ should have obtained vocational expert testimony to determine the potential impact of
Plaintiff’s nonexertional limitations on her ability to perform the full range of light work. The court
disagrees.
Although the ALJ did not find Plaintiff to be completely credible, he gave her the “benefit
of the doubt” and limited her postural activities. He observed that “in deference to her pain” he
limited her to simple, routine, repetitive tasks. The ALJ thus determined that Plaintiff suffers from
both exertional and nonexertional limitations. He then concluded that Plaintiff’s ability to perform
postural limitations occasionally would leave the light occupational base virtually intact.
Each grid considers only the strength or exertional component of a claimant's disability in
determining whether jobs exist that the claimant is able to perform in spite of her disability. Thus,
in cases where pain occurs only upon exertion and limits one’s strength functioning, the grid tables
will apply. When a claimant suffers from both exertional and nonexertional limitations, the grid
tables are not conclusive but may only serve as guidelines. Walker v. Bowen, 889 F.2d 47, 49 (45h
Cir. 1989) (citing Wilson v. Heckler, 743 F.2d 218 (4th Cir.1984)). Not every nonexertional
limitation rises to the level of a nonexertional impairment so as to preclude reliance on the grids.
Id. The proper inquiry is whether the nonexertional condition affects an individual’s residual
1
In fact, Dr. Rawe stated that no medication taken by Plaintiff has known side effects and/or requires
additional limitations on her activity.
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functional capacity to perform work of which she is exertionally capable. Id. (citing Grant v.
Schweiker, 699 F.2d 189 (4th Cir. 1983)). The ALJ essentially made this finding by limiting Plaintiff
to routine, repetitive tasks. Accordingly, the ALJ erred in not eliciting vocational expert testimony.
The court concludes that substantial evidence does not support the ALJ as to this issue.
F.
Plaintiff’s Reply Brief
Plaintiff informs the court that she filed a subsequent application for disability insurance
benefits. Her application was approved by an ALJ on October 4, 2011, said benefits to have
commenced as of February 1, 2011, six months prior to Plaintiff’s fiftieth birthday. Plaintiff amends
the relief sought in this case to request the court to adopt the Report and Recommendation, and that
the court reverse and remand this case to determine whether she was disabled from April 1, 2008 to
February 1, 2011. Because the court is remanding to allow the ALJ to obtain vocational expert
testimony, the court further instructs the ALJ to consider Plaintiff’s new evidence and make a
determination as to whether Plaintiff was disabled from April 1, 2008 to February 1, 2011.
IV. CONCLUSION
For the reasons stated herein, the court declines to adopt the Report and Recommendation
as to the ALJ’s determination to accord the opinion of Plaintiff’s treating physician little weight.
The court further declines to adopt the Report and Recommendation as to the ALJ’s finding
regarding Plaintiff’s credibility evaluation. The court adopts the Report and Recommendation with
respect to the ALJ’s failure to obtain testimony of a vocational expert. The court further instructs
the ALJ to consider the new evidence submitted by Plaintiff in making a decision regarding her
entitlement to benefits under the Act. Accordingly, the decision of the Commissioner is reversed
and the case remanded to the Commissioner pursuant to sentences four and six of 42 U.S.C. § 405(g)
17
for further administrative action consistent with the within Opinion and Order.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Chief United States District Court
March 29, 2012
Columbia, South Carolina
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