Smith v. Commissioner Social Security Administration

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATION accepting in part and rejecting in part 28 Report and Recommendation Signed by Honorable J Michelle Childs on 3/25/15. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Freddie Lee Smith,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)
____________________________________)

Civil Action No. 8:13-cv-02657-JMC

ORDER AND OPINION

Plaintiff Freddie Lee Smith (“Plaintiff”) filed this action seeking judicial review of the
final decision of the Commissioner of the Social Security Administration (the “Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (ECF No. 1.) This matter is before the court
for review of the Report and Recommendation of United States Magistrate Judge Jacquelyn D.
Austin, issued in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(a)
D.S.C. (ECF No. 28).
The Magistrate Judge recommended affirming the Commissioner’s final decision
denying Plaintiff’s claim for Supplemental Security Income (“SSI”). (Id. at 31.) Plaintiff timely
filed objections to the Magistrate Judge’s recommendation. (ECF No. 30.) For the reasons set
forth herein, the court ACCEPTS IN PART AND REJECTS IN PART the Magistrate Judge’s
Report and Recommendation and REVERSES the final decision of the Commissioner denying
Plaintiff’s claim for SSI pursuant to sentence four (4) of 42 U.S.C. § 405(g) and REMANDS the
case to the Commissioner for further proceedings consistent with this decision.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A thorough recitation of the relevant factual and procedural background of this matter is

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discussed in the Report and Recommendation. (See ECF No. 28.) The court concludes, upon its
own careful review of the record, that the Magistrate Judge’s factual and procedural summation
is accurate and incorporates it by reference. The court will only reference herein facts pertinent
to the analysis of Plaintiff’s claims.
Plaintiff was born on December 3, 1960, and is presently 54 years old. (ECF No. 13-5 at
2.) This matter is Plaintiff’s third application for disability benefits. (ECF No. 13-2 at 15.)
Plaintiff previously applied in 2003, with a denial at the hearing level in 2006, and again in 2009,
with a denial at the hearing level on July 30, 2010. (Id.) On August 11, 2010, Plaintiff filed this
third application, alleging a disability onset date of July 31, 2010, due to severe impairments of
major depression, mixed personality disorder, dysthymia, hypertensive heart disease, anxiety
disorder, hyperlipidemia, headaches/migraines, neck pain, uncontrolled hypertension, chest pain,
degenerative disc disease, mental retardation, cervical radiculopathy, cervical spondylosis, spinal
canal narrowing, and spinal cord effacement and mental impairments of major depression, mixed
personality disorder, dysthymia, anxiety disorder, and mental retardation. (ECF No. 13-5 at 2;
ECF No. 13-6 at 42.) Plaintiff’s claim was denied on September 28, 2010, and again on
reconsideration on December 15, 2010. (ECF No. 13-4 at 3, 13.) On July 17, 2012, Plaintiff had
a hearing before an Administrative Law Judge (“ALJ”), who found on October 5, 2012, that
Plaintiff is not disabled under § 1614(a)(3)(A) of the Social Security Act. (ECF No. 13-2 at 13,
34.) Thereafter, the Appeals Council denied Plaintiff’s request for review on August 2, 2013,
making the ALJ’s decision the final decision of the Commissioner for purposes of judicial
review. (Id. at 2.)
Subsequently, on September 27, 2013, Plaintiff commenced this action in the United
States District Court for the District of South Carolina pursuant to 42 U.S.C. §§ 405(g) and

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1383(c)(3) to obtain judicial review of the Commissioner’s final decision denying Plaintiff’s
claim for SSI. (ECF No. 1.) On May 9, 2014, Plaintiff filed an Amended Complaint, seeking
benefits starting on December 3, 2010. (ECF No. 15 at 2.) On February 3, 2015, the Magistrate
Judge issued her recommendation that the Commissioner’s final decision denying Plaintiff’s
claim for SSI be affirmed. (ECF No. 28.)
In the Report and Recommendation, the Magistrate Judge found that the opinion of
Plaintiff’s treating physician, Dr. Joy Dina Hudson, that Plaintiff is disabled is “not entitled to
controlling weight.” (Id. at 25.) The Magistrate Judge found that the ALJ “adequately explained
his consideration of Dr. Hudson’s opinion in light of the record evidence and explained his
weighing of the same” and “properly weighed and considered all the evidence of record and the
opinions of the State agency medical consultants,” and thus the weight given to Dr. Hudson’s
opinion was “supported by substantial evidence.” (Id. at 26.) Further, the Magistrate Judge
found that Plaintiff had not explained how the assignment of Plaintiff’s case to the same ALJ as
his previous decision violated any due process rights under the Administrative Procedures Act.
(Id. at 26.) Finally, the Magistrate Judge found that the ALJ properly applied the ruling of
Albright v. Commr. of Soc. Sec. Admin., 174 F.3d 473 (4th Cir. 1999), when making his decision.
(Id. at 27-31.)
Plaintiff timely filed objections to the Magistrate Judge’s recommendation on February
20, 2015. (ECF No. 30.) The Commissioner filed a response to Plaintiff’s objections on March
9, 2015. (ECF No. 31.)
II. LEGAL STANDARD AND ANALYSIS
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this

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court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only
those portions of a Magistrate Judge’s Report and Recommendation to which specific objections
are filed, and reviews those portions which are not objected to—including those portions to
which only “general and conclusory” objections have been made—for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one.

Section 405(g) of the Act provides, “the findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times
as more than a scintilla, but less than 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. See 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. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From
this it does not follow, however, that the findings of the administrative agency are to be
mechanically accepted. The statutorily granted right of review contemplates more than an
uncritical rubber stamping of the administrative agency.” 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 this conclusion is rational.” Vitek, 438 F.2d at 1157–58.

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Plaintiff objects on three grounds, arguing that the Magistrate Judge (1) “erroneously
determined that the ALJ properly applied Albright by assigning ‘great weight’ to his prior
decision,” (2) “improperly determined that the Greenville ODAR [Office of Disability
Adjudication and Review] did not violate Plaintiff’s due process rights and the APA by failing to
assign this case to an ALJ on a rotational basis,” and (3) “improperly rejected the opinions of Dr.
Joy Dina Hudson, [Plaintiff’s] primary care physician, when her opinions were entitled to
controlling weight under 20 C.F.R. § 404. 1527 and [Social Security Ruling] 96-2.” (ECF No.
30 at 1-4.)
Plaintiff argues that the Magistrate Judge’s and ALJ’s focus on the 10 day gap between
the denial of his second application and the filing of this application, rather than the 27 month
gap between the rendering of the current decision and the prior decision, when determining the
weight to give the prior decision was a misapplication of Albright. (Id. at 3.) In Albright, the
United States Court of Appeals for the Fourth Circuit noted, “[a]lthough we might state with
some assurance that a claimant’s condition very likely remains unchanged within a discrete twoweek period, we would grow ever less confident as the timeframe expands.” 174 F.3d at 477. In
Albright, the relevant time period to consider whether the plaintiff’s condition had changed, and
thus whether to afford great weight to the prior decision, spanned three years—from the time his
initial claim was denied until his insured status expired. In Lively v. Sec’y of Health and Human
Serv., 820 F.2d 1391 (4th Cir. 1987), which the Fourth Circuit discussed in Albright, the relevant
time period was two weeks—from the time the plaintiff’s initial application was denied to when
the plaintiff turned 55, qualifying him as an applicant of “advanced age.” 820 F.2d at 1392. The
Fourth Circuit found, “[i]t is utterly inconceivable that his condition had so improved in two

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weeks” to logically allow for a change from a determination that the plaintiff was able to perform
light work to one that he was able to perform medium work. Id.
The court disagrees with Plaintiff’s argument that the relevant time period in this case is
27 months. The decisions in Albright and Lively show that the relevant time period when
considering how much weight to give a prior decision is the time period from the date of the last
decision to the date at which Plaintiff alleges a change in status, not to the time of the next
denial. In Albright, the time period was determined to end when the plaintiff’s insured status
expired; in Lively, the time period ended when the plaintiff turned 55. Here, then, it would seem
proper to put the relevant time period as from the time the previous application was denied, July
30, 2010, to when Plaintiff alleges his disability onset occurred, initially July 31, 2010, amended
to December 3, 2010. Thus, the relevant time period here would be approximately four months,1
longer than the two weeks in Lively, but significantly shorter than the three years in Albright. As
such, the court does not consider this time period to be so lengthy as to require the ALJ to afford
little weight to the prior decision.
In addition, as the Magistrate Judge noted, the ALJ considered evidence from the time
period after the prior decision and noted “relatively little change” in Plaintiff’s condition since
the decision. (ECF No. 28 at 29-30; see also ECF No. 13-2 at 29-30.) Further, the ALJ took the
passage of time into account in his decision, noting “the mere passage of time (albeit a mere 5
months since the date of the last decision and his current alleged onset date) can cause a
digression in the claimant’s condition, I have further limited the claimant’s postural limitations.”
(ECF No. 13-2 at 30.)

Therefore, the court does not find a misapplication by either the

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Notably, both the ALJ and Magistrate Judge round up the time period to five months. (See
ECF Nos. 13-2 at 30; 28 at 29.)
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Magistrate Judge or the ALJ of the Albright decision, and adopts the Magistrate Judge’s
recommendation on this point.
Plaintiff next argues that he was prejudiced when his case was assigned to the same ALJ
who had denied his prior claim. (ECF No. 30 at 4.) Plaintiff argues that “the prejudice here is
obvious,” but fails to show any specific examples to support this claim other than that the ALJ
decided against Plaintiff in prior decisions. (Id.) Defendant argues “the mere fact that the ALJ
found Plaintiff not credible on two separate occasions does not, by itself, establish bias, and
moreover, the ALJ’s decision reflects that his second credibility determination was based on his
review of recently-submitted evidence rather than on his previous impressions.” The court
agrees.

The ALJ specifically addressed his determination of Plaintiff’s credibility in his

decision, and each point is based upon documents and testimony from this case, not upon
determinations made on prior applications. (ECF No. 13-2 at 26-28.) Further, as the ALJ noted
both in his decision and on the record at the hearing, even if Plaintiff’s case had been heard by
another ALJ, “any Judge that hears the case will be aware of the prior decision and the
conclusions made therein.” (Id. at 13.) Thus, Plaintiff has failed to establish bias on the part of
the ALJ and the court adopts the recommendation of the Magistrate Judge on this point.
Finally, Plaintiff argues that the Magistrate Judge erred in finding the ALJ properly
weighed the opinions of Plaintiff’s treating physician. (ECF No. 30 at 1-3.) Specifically,
Plaintiff argues that the ALJ failed to “set forth the systematic analysis required by 20 C.F.R. §
404.1527(c)” when explaining why he gave “little weight” to Dr. Hudson’s opinions. (Id. at 3;
see ECF No. 13-2 at 32.)
The weight given to medical opinions is guided by 20 C.F.R. § 404.1527(c), which
outlines six factors to be considered: (1) examining relationship (“[g]enerally, we give more

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weight to the opinion of a source who has examined you than the opinion of a source who has
not examined you”), (2) treatment relationship, including length of treatment relationship,
frequency of examination, and the nature and extent of the treatment relationship, (3)
supportability (“[t]he more a medical source presents relevant evidence to support an opinion…
the more weight we will give that opinion”), (4) consistency, (5) specialization, and (6) other
factors. The ALJ specifically addresses factors 3 and 4 when discussing why he afforded Dr.
Hudson’s opinion little weight, but fails to address the other factors. (ECF No. 13-2 at 32.)
When considering how to weigh medical opinions, ALJs are to consider all of the factors. 20
C.F.R. § 404.1527(c). Notably, the ALJ’s decision makes almost no note of the nature of
Plaintiff’s treating relationship with Dr. Hudson. Other than a mention of the date range during
which Plaintiff saw Dr. Hudson and reference to exhibits, the ALJ makes no mention of the
frequency of examination or the nature and extent of the relationship, nor why those factors did
not require the ALJ to afford Dr. Hudson’s opinions more weight. (See ECF No. 13-2 at 29-30.)
Further, the ALJ stated “[m]edical evidence after the date of the last ALJ decision is fairly
limited and consists primarily of treatment records of Dr. Hudson.” (Id. at 29.) Social Security
Ruling 96-5p states, “[b]ecause treating source evidence (including opinion evidence) is
important, if the evidence does not support a treating source’s opinion on any issue reserved to
the Commissioner and the adjudicator cannot ascertain the basis of the opinion from the case
record, the adjudicator must make ‘every reasonable effort’ to recontact the source for
clarification of the reasons for the opinion.” If the ALJ felt the evidence was limited as to the
relevant time period and did not find Dr. Hudson’s conclusions to be consistent with her notes on
record, an effort should have been made to contact Dr. Hudson to clarify why she came to the

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conclusions she did or a determination should have made by the ALJ regarding why Dr.
Hudson’s conclusions were not supported in the medical records.
Therefore, the court declines to adopt the recommendation of the Magistrate Judge with
regard to the ALJ’s weighing of medical evidence, and remands the case for further proceedings
consistent with this decision.
III. CONCLUSION
Upon careful consideration of the entire record, the court ACCEPTS IN PART AND
REJECTS IN PART the Report of the Magistrate Judge (ECF No. 28), incorporating it by
reference, and REVERSES the final decision of the Commissioner denying Plaintiff’s claim for
Supplemental Security Income pursuant to sentence four (4) of 42 U.S.C. § 405(g) and
REMANDS the case to the Commissioner for further proceedings consistent with this decision.
IT IS SO ORDERED.

United States District Judge
March 25, 2015
Columbia, South Carolina

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