Davis v. Commissioner of Social Security Administration

Filing 24

ORDER adopting Report and Recommendations 17 and affirming the Commissioner's decision. Signed by Honorable David C Norton on March 27, 2017. (rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
ROGER D. DAVIS, JR.,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)

No. 8:15-cv-2991-DCN
ORDER

This matter is before the court on United States Magistrate Judge Jacquelyn
D. Austin’s Report and Recommendation (“R&R”) that the court affirm Acting
Commissioner of Social Security Nancy A. Berryhill’s (the “Commissioner”)
decision denying plaintiff Roger D. Davis, Jr.’s (“Davis”) application for disability
insurance benefits (“DIB”) and social security insurance benefits (“SSI”). For the
reasons set forth below, the court adopts the R&R and affirms the Commissioner’s
decision.
I. BACKGROUND1
A.

Procedural History

Davis filed applications for DIB and SSI on July 19, 2012. Both applications
allege disability beginning May 20, 2012 (the “alleged onset date”). The Social
Security Administration denied Davis’s claims initially and on reconsideration.
Davis requested a hearing before an administrative law judge (“ALJ”), and ALJ
Nicole S. Forbes-Schmitt conducted a hearing on November 7, 2013. The ALJ issued

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The following facts are taken from the R&R, unless otherwise noted.
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a decision on January 31, 2014, finding that Davis was not disabled within the
meaning of the Social Security Act (the “Act”) from his alleged onset date through
the date of the decision. Davis requested Appeals Council review of the ALJ’s
decision. The Appeals Council declined Davis’s request, rendering the ALJ’s
decision the final action of the Commissioner.
On July 30, 2015, Davis filed this action seeking judicial review of the ALJ’s
decision. ECF No. 1. The magistrate judge issued the R&R on January 4, 2017,
recommending that this court affirm the ALJ’s decision. Davis filed objections to the
R&R on February 1, 2017, ECF No. 20, and the Commissioner responded to Davis’s
objections on February 15, 2017. ECF No. 22. The matter is now ripe for the court’s
review.
B.

Medical History

Because Davis’s medical history is not directly at issue here, the court
dispenses with a lengthy recitation thereof and instead notes a few relevant facts.
Johnson was born on November 8, 1973 and was 38 years old on the alleged onset
date. Tr. 24. He communicates in English and has limited education. Id.
C.

ALJ’s Decision

The ALJ employed the statutorily required five-step sequential evaluation
process to determine whether Davis had been under a disability since the alleged
onset date. The ALJ first determined that Davis had not engaged in substantial
gainful activity during the relevant period. Tr. 20. At step two, the ALJ found that
Davis suffered from a single severe impairment: degenerative disc disease of the
lumbar spine. Id. At step three, the ALJ determined that Davis did not have an

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impairment or combination of impairments that met or equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). Tr. 21.
Before reaching the fourth step, the ALJ determined that Davis had the residual
functional capacity (“RFC”) to perform “sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.976(a)” with the option to sit or stand at will and with no
exposure to additional hazards. Id. At step four, the ALJ found that Davis was
unable to perform his past relevant work as a saw operator and floor finisher, but
based on his age, education, and RFC, Davis could perform certain jobs that existed
in significant numbers in the national economy. Tr. 24. Therefore, the ALJ
concluded that Davis had not been under a disability within the meaning of the Act
since the alleged onset date. Tr. 25.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). 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

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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)
III. DISCUSSION
Davis raises two objections to the R&R. First, Davis objects to the magistrate
judge’s conclusion that the ALJ’s decision was supported by substantial evidence.2
Pl.’s Objections 2–4. Second, Davis contends that the magistrate judge wrongly
concluded that the ALJ properly analyzed the opinion of Davis’s orthopedic surgeon,
Dr. John Glaser (“Dr. Glaser”). Id. at 4–5. The court addresses each objection in
turn.
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Davis offers this objection under the heading “Substantial evidence does not
support the ALJ’s rejection of the evidence regarding Mr. Davis’s multiple
impairments.” Pl.’s Objections 2. This reference to Davis’s “multiple impairments”
might be read as an objection to the ALJ’s conclusion that Davis’s left thumb
amputation, hypertension, and obesity were non-severe impairments. Tr. 20–21.
However, as outlined in part III.A. and footnote 3 below, the substance of Davis’s
objection focuses on the ALJ’s treatment of certain evidence of the pain Davis
experienced in connection with his degenerative disc disease. Id. at 2–4. Davis does
not provide any discussion of his non-severe impairments, much less explain why the
ALJ should have considered them to be severe. Id. Therefore, the court concludes
that Davis does not object to the ALJ’s treatment of his left thumb amputation,
hypertension, and obesity as non-severe impairments.
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A.

Substantial Evidence

Davis first argues that the ALJ failed to show that her decision was supported
by substantial evidence. Id. at 2–4. This argument consists of an outline of the
general principles governing the ALJ’s analysis and an assertion that “[a]pplying
these principles to the present case, the law and facts below preclude affirmation of
the ALJ’s findings regarding the medical source opinions, impairment severity, and
medical equivalency.”3 Id. at 2–3. Following this statement, Davis notes that the
record contains “continued complaints of pain by Mr. Davis [and] objective clinical
evidence representing work-related limitations in function.” Id. at 3. Davis then
proceeds to list various pieces of evidence showing the progression and treatment
history of his degenerative disc disease. 4 Id. at 3–4. Davis appears to contend that
this evidence precludes the court from affirming the ALJ’s decision, either because it
shows that the ALJ’s decision did not rest on substantial evidence, or because the
ALJ failed to properly explain her decision.5 Both arguments fail.

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Despite this reference to “medical source opinions, impairment severity, and
medical equivalency,” Davis’s first objection does not specifically address any of
these issues. Pl.’s Objections 2–4. As the court recently explained in Best v.
Berryhill, No. 0:15-cv-02990-DCN, 2017 WL 835350, at *2 (D.S.C. Mar. 3, 2017),
the court “is under no obligation to consider conclusory objections or attempts to
challenge the entirety of the R&R without focusing the court’s attention on specific
errors therein.” To the extent Davis’s first objection seeks to challenge anything
other than the ALJ’s evaluation of Davis’s degenerative disc disease symptoms, it is
conclusory and unspecific.
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Davis’s objection also refers to the medical history set forth in his initial
brief, which contains a more thorough recitation of such evidence. Pl.’s Mot. 2–7.
The court has reviewed Davis’s initial brief and does not consider the medical history
outlined therein to be meaningfully different from the evidence cited in his objections
to the R&R.
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As set out more fully in part II. above, the court’s task is to determine whether
the ALJ’s decision is “supported by substantial evidence and [was] reached through
application of the correct legal standard.’” Johnson v. Barnhart, 434 F.3d 650, 653
(4th Cir. 2005) (quoting Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)).
“‘Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Craig, 76 F.3d at 589). In order to
facilitate this determination, the ALJ must “fully explain the weight he has given to
obviously probative exhibits.” Alexander v. Astrue, No. 4:08-cv-3384, 2010 WL
1254945, at *5 (D.S.C. Mar. 23, 2010) (“If the ALJ does not analyze all the evidence
and fully explain the weight he has given to obviously probative exhibits, to say that
his decision is supported by substantial evidence approaches an abdication of the
court’s duty to scrutinize the record as a whole to determine the conclusions reached
are rational.”). However, the ALJ “need not cite every piece of possibly relevant
evidence in the record.” Fridley v. Astrue, 2014 WL 2468821, at *6 (W.D. Va. June
3, 2014). The touchstone for determining what evidence must be addressed is
whether the evidence is so material that failing to address it would prevent the court
from determining if the ALJ’s decision was supported by substantial evidence.
Seabolt v. Barnhart, 481 F. Supp. 2d 538, 548 (D.S.C. 2007) (“The ALJ is not
required to discuss every piece of evidence, but if he does not mention material
evidence, the court cannot say his determination was supported by substantial
evidence.”).
The ALJ determined that the symptoms caused by Davis’s degenerative disc
disease did not prevent him from working. Tr. 21–23. Determining whether a

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claimant’s “is disabled by pain or other symptoms is a two-step process. First, there
must be objective medical evidence showing the existence of a medical impairment(s)
. . . which could reasonably be expected to produce the pain or other symptoms
alleged.” Craig, 76 F.3d at 594 (emphasis and internal quotations omitted). If such
evidence exists, the ALJ “must evaluate the intensity, persistence, and limiting effects
of claimant’s symptoms.” SSR 96-7P.6 At the second step of this process,
“whenever the individual’s statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by objective medical
evidence, the adjudicator must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.” Id.; see also Craig, 76
F.3d at 595 (“[T]his evaluation must take into account not only the claimant’s
statements about her pain, but also all the available evidence, including the claimant’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 the claimant’s daily activities, specific descriptions of the pain,
and any medical treatment taken to alleviate it.”).
This is exactly what the ALJ did here. After outlining Davis’s allegations of
debilitating pain, the ALJ first found that Davis’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but
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The court notes that SSR 96-7P was superseded by SSR 16-3P in March
2016 to remove references to the plaintiff’s “credibility.” SSR 16-3P. However, the
ALJ’s decision in this case was issued well before SRR 16-3P. Therefore, the court
analyzes Plaintiff’s objections under SSR 96-7P. See Sullivan v. Colvin, 2017 WL
473925, at *3 (W.D. Va. Feb. 3, 2017) (applying SRR 96-7P). In any event, “the
methodology required by both SSR 16-3P and SSR 96-7P, are quite similar. Under
either, the ALJ is required to consider [the claimant’s] report of his own symptoms
against the backdrop of the entire case record.” Id.
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ultimately found that Davis’s allegations were “not entirely credible.” Tr. 22. The
ALJ placed significant emphasis on the treatment records showing that Davis’s back
surgery on January 17, 2013 “was generally successful in relieving the symptoms.”
Id. The ALJ acknowledged that Davis has had “intermittent exacerbations of pain
and limitation” but found that, “by all accounts, [Davis] is doing much better.” Id.
The ALJ also observed that Davis’s course of treatment following the surgery was
“inconsistent with a level of severity that would preclude [him] from sustaining any
work activity.” Tr. 22–23(emphasis added). Finally, the ALJ considered Davis’s
activities of daily living, particularly his ability to attend church multiple times a
week, go shopping, and help with laundry. Tr. 23.
The court finds no error in this analysis. Dr. Glaser’s treating records contain
multiple “progress notes” stating that Davis’s condition improved significantly after
the surgery. Tr. 454–63. In the most recent progress note from July 2013, Davis
reported that, while he was experiencing “intermittent” bouts of pain and weakness in
his legs, he was “still far better than he was prior to surgery.” Tr. 454. These records
provide a logical basis for finding that Davis was no longer suffering from
incapacitating levels of pain. Even before the surgery, Davis stated that he was able
to shop for two and a half hours at a time, and attended church three times a week.
Tr. 211–12. The ALJ cited these activities as inconsistent with Davis’s complaints of
debilitating pain. Tr. 23. If Davis was able to engage in such activities prior to the
surgery, it stands to reason that he would be even more active afterward. Therefore,
the court concludes that the ALJ’s analysis was supported by substantial evidence.

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The evidence cited by Davis is not strong enough to disturb this conclusion.
The bulk of this evidence comes from treatment notes made prior to Davis’s surgery
in January of 2013. Pl.’s Objections 2–4. While Davis claims that his complaints of
pain were “consistent throughout the medical records,” he offers no evidence showing
that his complaints remained consistent after his surgery, and this assertion is
inconsistent with the evidence showing that his post-surgery pain symptoms were
“intermittent.” Tr. 454. Because the ALJ’s reasoning was based on the
improvements in Davis’s condition following his surgery, evidence of his pre-surgery
condition is not especially relevant. This is clear from the ALJ’s decision, which
acknowledged that Davis’s initial treatment plan failed to improve his condition
before explaining the changes he experienced after the surgery. Tr. 22. Thus, the
ALJ provided a clear indication of why she did not credit the evidence highlighted in
Davis’s objections. It was unnecessary for the ALJ to discuss such evidence in
greater detail.7

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Though Davis does not mention it in his objections, his reply brief before the
magistrate judge attempted to explain that the benefits of the January 2013 surgery
should not be considered because Davis re-injured his back following surgery. Pl.’s
Reply 3. The court does not decide how this argument should be treated as a matter
of law, but finds that it is simply not supported by the facts. While Davis did offer
such testimony at the hearing, he indicated that the alleged “re-injury” occurred “two
to three months after” the surgery, which would be either March or April of 2013.
However, the progress notes cited by the ALJ indicate that Davis reported feeling “far
better” than he felt prior to the surgery in July of 2013. Tr. 454. It is clear from the
ALJ’s decision that she credited these treatment notes over Davis’s testimony.
Therefore, even if the issue were before the court—which it is not—the court would
find Davis’s re-injury argument insufficient to disturb the conclusions of the
magistrate judge and the ALJ.
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B.

Treating Physician Rule

Davis also argues that the ALJ failed to properly consider the opinion of Dr.
Glaser. Pl.’s Objection 4–5. The court finds this argument to be without merit.
“Under the regulations of the Social Security Administration, the
Commissioner is obligated to consider all medical evidence and the opinions of
medical sources, including treating physicians.” Wooten v. Colvin, No. 4:15-cv2119, 2016 WL 3912849, at *2 (D.S.C. July 19, 2016) (citing 20 C.F.R.
§ 404.1527(b). “Known popularly as the ‘Treating Physician Rule,’ the regulation
requires the Commissioner to ‘evaluate every medical opinion we receive.’” Steele v.
Colvin, No. 1:15-cv-2595, 2016 WL 6269585, at *1 (D.S.C. Oct. 26, 2016) (quoting
20 C.F.R. § 404.1527(c))
Special consideration is to be given to the opinions of treating
physicians of the claimant, based on the view that “these sources are
likely to be the medical professionals most able to provide a [detailed],
longitudinal picture of [the claimant’s] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be
obtained from objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations.”
Wooten, 2016 WL 3912849, at *2 (alteration in original) (quoting 20 C.F.R.
§ 404.1527(c)(2)).
Under some circumstances, the opinions of the treating physicians are
to be accorded controlling weight. Even where the opinions of the
treating physicians of the claimant are not accorded controlling weight,
the Commissioner is obligated to weigh all medical opinions in light of
a broad range of factors, including the examining relationship, the
treatment relationship, length of treatment, nature and extent of the
treatment relationship, supportability of the opinions in the medical
record, consistency, and whether the treating physician was a
specialist.
Id. (emphasis omitted) (citing 20 C.F.R. §§ 404.1527(c)(l)–(5)).
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Here, it is debatable whether Dr. Glaser even offered an opinion that was
inconsistent with the ALJ’s findings. On February 6, 2013, Dr. Glaser wrote that “it
is my medical opinion that Mr. Davis [] remain[s] disable[d] [and] may not return to
work until further notice.” Tr. 452. This opinion was written less than three weeks
after Davis’s back surgery and seems to contemplate further improvement in Davis’s
condition. On July 31, 2013, Dr. Glaser offered another opinion, stating that Davis
was “totally disabled” and it was “doubtful he will return to work.” Tr. 450. While
this opinion was worded more strongly than the February 2013 opinion, Dr. Glaser’s
contemporaneous treatment records reveal that it is actually more limited. In a
progress note written the same day he authored the July 2013 opinion, Dr. Glaser
stated, “I filled out [Davis’s] disability paperwork saying I am doubtful he will return
to work. His job is physically demanding.” Tr. 454. This statement makes it clear
that Dr. Glaser’s July 31, 2013 opinion did not address Davis’s ability to work any
job, just his ability to return to his previous job. In fact, Dr. Glaser explicitly noted
that if “an insurance company or any other entity needs to know his exact ability
. . . he will need a functional capacity evaluation.” Tr. 454. Of course, the ALJ found
that Davis could not return to his past relevant work as a saw operator or floor
finisher, Tr. 24, so Dr. Glaser’s July 31, 2013 was entirely consistent with the ALJ’s
analysis.
In any event, to the extent Dr. Glaser’s notes could be read to opine that Davis
was incapable of performing any work, the court finds that the ALJ sufficiently

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explained her reasons for discounting the value of that opinion.8 An ALJ may reduce
the weight given to a treating physician’s opinion where the opinion is not supported
by the physician’s own records or other available records. Wooten, 2016 WL
3912849, at *4. The ALJ properly relied on these factors in discounting Dr. Glaser’s
opinion in this case, noting that Dr. Glaser’s opinion was offered without “any
explanation, rationale, clinical findings, or reference to objective testing.” Tr. 23.
Instead, the ALJ found that Dr. Glaser’s opinion was based largely on Davis’s
subjective complaints of pain, which were not supported by the objective medical
evidence—particularly, Davis’s post-surgery treatment records. Id. This analysis is
consistent with the Treating Physician Rule.

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The ALJ’s decision only explicitly addressed Dr. Glaser’s February 2013
opinion. Tr. 23. For the reasons described above, the court sees no error in the ALJ’s
failure to address the July 2013 opinion, as that opinion was clearly consistent with
the ALJ’s ultimate conclusion. Nevertheless, even if the court were to assume that
the ALJ needed to address both opinions, the court would find the ALJ’s analysis
sufficient, as it relied on arguments that were largely applicable to both opinions.
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IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R, and
AFFIRMS the Commissioner’s decision.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 27, 2017
Charleston, South Carolina

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