Simmons v. Commissioner of the Social Security Administration
Filing
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ORDER RULING ON 16 REPORT AND RECOMMENDATION. The Court adopts the Report and Recommendation of Magistrate Judge Marchant and affirms the decision of the Commissioner. Signed by Honorable Cameron McGowan Currie on 02/11/2013. (egra, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Laura Ann Simmons,
)
)
Plaintiff,
)
)
v.
)
)
Michael J. Astrue,
)
Commissioner of Social Security Administration, )
)
Defendant.
)
__________________________________________)
C/A No. 9:11-02729-CMC-BM
ORDER
Through this action, Plaintiff seeks judicial review of the final decision of the Commissioner
of Social Security denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Plaintiff appealed pursuant to 42 U.S.C. § 405(g). The
matter is currently before the court for review of the Report and Recommendation (“Report”) of
Magistrate Judge Bristow Marchant, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Rules 73.02(B)(2)(a) and 83.VII.02, et seq., D.S.C. The Report, filed on October 17, 2012,
recommends that the decision of the Commissioner be affirmed. Dkt. No. 16. On November 2,
2012, Plaintiff filed objections to the Report. Dkt. No. 18. On November 19, 2012, the
Commissioner filed a response to Plaintiff’s objections. Dkt. No. 19. For the reasons stated below,
the court adopts the Report and affirms the decision of the Commissioner.
STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination
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of those portions of the Report to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
to the Magistrate Judge with instructions. 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 205(g) of the Act provides, “[t]he findings of the Secretary
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 and reached through
application of the correct legal standard. Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). “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 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.
BACKGROUND
Plaintiff applied for SSI and DIB, alleging disability as of February 15, 2004, due to
diabetes, high blood pressure, and carpal tunnel syndrome. The ALJ conducted a hearing on
September 21, 2005, and denied Plaintiff’s claims in a decision issued February 21, 2006. The
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Appeals Council denied Plaintiff’s request for review and Plaintiff filed an action in U.S. District
Court. On July 30, 2007, the court remanded the case for further administrative action.
A second administrative hearing was held on March 31, 2009. Again, Plaintiff’s claims were
denied in a decision issued November 11, 2009, which the Appeals Council upheld. Plaintiff filed
another action in U.S. District Court. The court remanded that case for further administrative action,
specifically to consider the combined effect of Plaintiff’s impairments and how they would affect
her residual functional capacity (“RFC”), and to further explain why Drs. McDonald and
Gonsalves’s opinions were rejected or discounted. Simmons v. Astrue, No. 4:10-00023-HFF-TER,
2011 WL 5403655 (D.S.C. Jan. 20, 2011) (Report), adopted by order in Dkt. No. 24.
A third administrative hearing was held on July 11, 2011. Plaintiff’s claims were once again
denied in a decision issued August 4, 2011. The Appeals Council denied Plaintiff’s request for
further review, thereby making the ALJ’s decision the final decision of the Commissioner. Plaintiff
filed this action on October 10, 2011, alleging that the ALJ’s decision is not supported by substantial
evidence.
DISCUSSION
The Magistrate Judge recommends that the court affirm the Commissioner’s decision
because it is supported by substantial evidence. Plaintiff objects to the Report, arguing that the
Magistrate Judged erred (1) in describing the facts because pertinent medical evidence is omitted;
(2) in concluding that the RFC reflects that the ALJ conducted a proper combined effect analysis at
step three; (3) in concluding that the ALJ properly assessed Plaintiff’s RFC; (4) in recommending
that the ALJ properly rejected Drs. McDonald and Gonsalves’s disability opinions; and (5) in failing
to address Plaintiff’s argument that the ALJ did not comply with the District Court’s remand order
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in 2011. Dkt. No. 18.
Medical Evidence. Plaintiff argues that the Magistrate Judge, as well as the ALJ, ignored
pertinent medical evidence when stating the facts of the case. The court has reviewed all of the
identified facts purportedly omitted. The facts that were not described by the Magistrate Judge and
ALJ are discussed below.
There is evidence that Plaintiff did not have medical insurance and could not afford certain
procedures or tests, or a new mask for her BiPap machine, to assist with her sleep apnea.1 The ALJ’s
opinion cited Plaintiff’s failure to seek treatment for daytime sleepiness (Tr. 4, 10) as one reason to
discount her testimony and one of her treating physician’s opinions (Dr. Gonsalves) that her sleep
apnea limited her ability to work. The court reviews the medical evidence to determine whether the
ALJ’s decision that sleep apnea did not limit Plaintiff’s ability to work is supported by substantial
evidence.
1
There is a notation on almost all of Dr. McDonald’s treatment notes – “No insurance limits
her workups.” – that appears after the label of “Social History.” There are only three specific
instances in the medical evidence indicating that Plaintiff’s lack of insurance affected her medical
treatment. On February 10, 2004, Dr. McDonald noted that Plaintiff had “hypocalcemia – corrected
calcium is 7.9. She has no insurance and will treat w/o ordering the usual labs to help keep her cost
down.” Tr. 148. The second instance was on March 10, 2004, when Dr. McDonald noted that
Plaintiff had an elevated sed rate and modestly elevated ACE level. Tr. 145. He noted that “[w]ith
lack of funds and insurance, we’ll try to hold off on further evaluation, such as a bronchoscopy, with
transbronchial biopsy or CT of her chest.” Id. The third instance was in the treatment notes of Dr.
Goldblatt on July 15, 2009. Tr. 526. Dr. Goldblatt noted that “[p]resently Ms. Simmons is
uninsured and while I think she might benefit from a repeat sleep study and consultation with our
sleep physicians[,] that is presently not an option. I have recommended she get a new mask as it has
been > 6 months[.] [S]he again is limited by her financial component. I have therefore recommended
she speak to our respiratory therapists about ways to make her mask more functional.” Id.
Plaintiff does not allege disability resulting from hypocalcemia. Neither does Plaintiff allege
that her inability to receive a bronchoscopy hindered her medical care or resulted in a late diagnosis
of a disease or disorder. The only instance that possibly affects the ALJ’s decision relates to her
sleep apnea.
4
•
On July 9, 2004, Plaintiff complained of shortness of breath and daytime sleepiness
to Dr. McDonald. Dr. McDonald suspected sleep apnea and referred her for further
evaluation. Tr. 117.
•
On August 30, 2004, Dr. McDonald noted that Plaintiff had been diagnosed with
sleep apnea, had been using a mask and “appears to be tolerating it well.” Tr. 108.
•
On August 31, 2005, Dr. Heidecker noted that Plaintiff has very severe OSA
(obstructive sleep apnea), but that she was on BiPap and “has had
improvement in daytime somnolence and is rested in AM when she
awakens.” Tr. 186.
•
On March 28, 2006, Dr. Gonsalves noted that Plaintiff has severe OSA, but
that her OSA symptoms had improved with treatment. Tr. 328.
•
On July 15, 2009, Plaintiff visited Dr. Goldblatt complaining of uncontrolled
sleep apnea. As explained in footnote 1, Dr. Goldblatt indicated that he
would recommend a repeat sleep study and a new mask, but that she was
unable to afford these without insurance. He, therefore, recommended that
she speak with one of his respiratory therapists to make her mask functional.
•
On February 21, 2011, state physician Dr. Weissglass evaluated Plaintiff. At that
time, Plaintiff stated that she had sleep apnea and had been using a mask. She said
that she did not think the mask was working because she was tired all of the time.
She also said that she was not sure that the mask still fit. Tr. 509. Based on
Plaintiff’s report of sleep apnea, Dr. Weissglass recommended that “she should avoid
occupations where by regulation this must be controlled (such as driving under
DOT).” Tr. 512.
The weight of the medical evidence indicates that Plaintiff’s sleep apnea was controlled with
treatment. After her initial diagnosis of sleep apnea, the record shows that Plaintiff complained of
daytime sleepiness once in 2009 and once in 2011. It appears, however, that these complaints were
due to a malfunction of the mask. Although one physician recommended that she get a new mask
in 2009, and noted that it was not possible based on her lack of insurance and funds, that physician
instructed her to seek assistance with improving the mask she had. There is no evidence that she
returned with complaints that her mask was not working after that date. Similarly, although she
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complained to Dr. Weissglass about a possible mask problem and daytime sleepiness, there is no
other medical evidence that she sought treatment or assistance with her sleep apnea in 2011. Finally,
and perhaps most importantly, the ALJ included in her RFC a limitation for daytime sleepiness as
recommended by Dr. Weissglass. Therefore, to the extent that the ALJ erred by omitting the fact
the she lacked insurance, that error was harmless.
Plaintiff cites to treatment notes where physicians have identified possible diseases (or
conditions) that were consistent with some of Plaintiff’s symptoms. However, Plaintiff was never
diagnosed with these diseases, nor does she claim disability based on any of these diseases. Any
omission of this evidence is, therefore, harmless error.
There is also evidence that Plaintiff experienced eye problems in 2004. The ALJ discussed
those problems (orbital inflammation) and considered orbital inflammation to be a severe
impairment. The ALJ sufficiently discussed Plaintiff’s eye problems and Plaintiff has only cited
evidence that appears to be cumulative.2 See Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993)
(“ . . . the ALJ need not evaluate in writing every piece of testimony and evidence submitted. . . .
What we require is that the ALJ sufficiently articulate his assessment of the evidence to ‘assure us
that the ALJ considered the important evidence ... [and to enable] us to trace the path of the ALJ’s
reasoning.’”).
The rest of the purported omitted evidence also appears to be cumulative: Plaintiff’s blood
sugar difficulties associated with Plaintiff’s diabetes, leg and feet pain and swelling, and suggestions
2
To the extent Plaintiff has cited evidence that indicates a different eye condition, Plaintiff
has failed to make that argument or otherwise explain how that evidence would lead to a different
result, i.e., how the omitted evidence indicates that Plaintiff’s ability to work is more limited than
in the RFC.
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that Plaintiff may have heart or lung problems. The ALJ found that Plaintiff had the severe
impairments of, inter alia, diabetes and diabetic neuropathy and obesity. The ALJ also found that
Plaintiff’s diabetes was well-controlled, and none of the evidence cited by Plaintiff suggests a
different result.3 The ALJ explained the evidence of Plaintiff’s foot and leg edema, described as
mild by Dr. McDonald, and found that it did not limit Plaintiff more than her RFC.4 The ALJ also
limited Plaintiff to sedentary work based on her complaints to Dr. Weissglass that she had knee pain.
As explained by the ALJ, the medical evidence fails to include any diagnosis of chronic cardiac or
respiratory diseases. Plaintiff argues that the omitted evidence is “crucially and directly evidence
to the concept of substantial evidence and the issue of the combined effect analysis.” Dkt. No. 18
at 4. After reviewing the cited omitted evidence and the ALJ’s opinion, the court concludes that
most of the evidence was cumulative of the evidence cited by the ALJ. To the extent that the
omission of the fact that Plaintiff lacked insurance was error, that error was harmless as explained
above. As explained by the Report, “the decision reflects that the ALJ adequately discussed and
evaluated Plaintiff’s diagnoses and claimed limitations, and Plaintiff’s argument that the ALJ should
have gone into even more detail discussing these medical issues in his decision is without merit.”
Report at 15. The court, therefore, rejects Plaintiff’s objection.
Combined Effect Analysis. Plaintiff argues that the ALJ failed to properly discuss and
evaluate the combined effect of all of Plaintiff’s impairments as required by Walker v. Bowen. 889
F.2d 47, 49 (4th Cir. 1989) (“in evaluating the effects of various impairments upon a disability
3
Plaintiff cites to high blood sugar between March and June 2004, which Dr. McDonald
attributed to Plaintiff’s temporary use of prednisone to treat eye inflammation. Tr. 122-138.
4
Plaintiff was prescribed compression stocks for leg edema in August 2004. Tr. 109. In
December 2006, Dr. Vincent noted that she had bilateral leg swelling, which he suspected was
caused by a particular medication, which he changed. Tr. 336. In February 2011, Plaintiff reported
to Dr. Weissglass that she had knee pain. Tr. 511.
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claimant, the Secretary must consider the combined effect of a claimant’s impairments and not
fragmentize them.”). The Report considered Plaintiff’s argument concerning combined effect
analysis but concluded that “[a] plain reading to [sic] the decision reflects the thorough review and
consideration given by the ALJ to the evidence and the effects of all the Plaintiff’s impairments in
deciding her RFC.” Dkt. No. 16 at 16.
In her objections, Plaintiff argues that the Magistrate Judge allowed the ALJ’s evaluation of
the RFC to substitute for a proper analysis of the combined effect of Plaintiff’s impairments at step
three of the sequential evaluation process. Step three is when the ALJ must determine whether the
claimant’s impairments meet or medically equal the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. If they meet the criteria of the listed impairments, the claimant is disabled
and the sequential evaluation process ends. Plaintiff cites C.F.R. § 404.1526 §§ (b)(1)-(3), which
explains three ways in which an adjudicator can find that a claimant’s impairments medically equal
a listed impairment, i.e., medical equivalence. C.F.R. § 404.1526 § (b)(3) states:
If you have a combination of impairments, no one of which meets a listing (see §
404.1525(c)(3)), we will compare your findings with those for closely analogous
listed impairments. If the findings related to your impairments are at least of equal
medical significance to those of a listed impairment, we will find that your
combination of impairments is medically equivalent to that listing.
Plaintiff argues that, in addition to the impairments the ALJ found to be severe, her cardiac
condition, sleep apnea, dyspnea (shortness of breath), osteopenia, and pancytopenia combine to
render her “functionally disabled.” Dkt. No. 13 at 14. The ALJ specifically found that Plaintiff had
no diagnosed cardiac or respiratory condition and that her sleep apnea was non-severe as it is
controlled with treatment. The medical evidence does not support that Plaintiff suffers from any
work limitations from shortness of breath, osteopenia, and pancytopenia. Plaintiff has failed to show
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that her impairments, considered individually or in combination, meet a listing.
After considering each of Plaintiff’s severe impairments individually and concluding that
none met a listing, the ALJ stated that he considered whether “the claimant’s obesity has increased
the severity of the claimant’s coexisting or related impairments to the extent that the combination
of impairments meets the requirements of a listing.” Tr. 400. Further, the ALJ adequately explained
all of Plaintiff’s alleged impairments and the effects of those impairments supported by medical
evidence.5 Finally, Plaintiff has not established that her combination of impairments meets a listing.6
The court is satisfied that the ALJ properly considered whether the combination of Plaintiff’s
impairments met a listing, and that substantial evidence supports the ALJ’s finding that Plaintiff’s
combination of impairments does not meet a listing. The court, therefore, rejects Plaintiff’s
5
In explaining the RFC determination, the ALJ stated:
Moreover, the undersigned has considered the combined effects of the claimant’s
alleged impairments, both severe and non-severe, on the claimant’s ability to work.
20 C.F.R. 404.1526(b)(3) and 416.926(b)(3). While the combination of the
claimant’s impairments imposes some limitations, there is no indication in the record
that the claimant’s ability to sustain consistent function has been complicated by the
combination of impairments. Although the claimant’s obesity may contribute to her
neuropathy and extremity swelling, the record document[]s the claimant’s repeated
non-compliance with orders to lose weight. At the hearing, the claimant
acknowledged that her obesity may contribute to her neuropathy, yet there is no
evidence that the claimant has made significant strides to decrease her BMI. The
undersigned has considered the combination of these impairments, along with the
claimant’s carpal tunnel syndrome and orbital inflammation, in limiting the claimant
to sedentary work with the additional postural and environmental limitations set forth
above. However, there is no objective evidence that the combination of claimant’s
impairments imposes greater limitations than those inherent in the residual functional
capacity stated above.
Tr. 403.
6
In her opening brief to the Magistrate Judge, Plaintiff argued that she meets, “at a
minimum, Listing 9.00(B)(5)(a)(ii) and Listing 3.10 – Sleep Related Breathing Disorders.” Dkt. No.
13 at 15. Listing 9.00 (B)(5)(a)(ii) is for chronic hyperglycemia. Listing 3.10 is for sleep related
breathing disorders. Plaintiff has failed to establish how the medical evidence meets the specific
criteria of one or both of these listings. Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986)
(It is plaintiff’s burden to present evidence that her condition meets or equals a listed impairment.).
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objection.7
RFC. Plaintiff objects to the Report’s finding that the ALJ’s determination of her RFC was
thorough and supported by substantial evidence. Plaintiff contends that the ALJ did not consider all
of her impairments, and that the RFC analysis ignored Plaintiff’s lack of health insurance and
treatment notes by several physicians indicating possible diseases or disorders for which some of
Plaintiff’s symptoms could be consistent. First, the court agrees with the Report and finds that the
RFC is supported by substantial evidence. Second, the court rejects Plaintiff’s argument that the
ALJ should rely on suggestions of possible diagnoses, without further evidence of an actual
diagnosis. Third, as explained earlier, to the extent the ALJ erred in failing to acknowledge that
Plaintiff lacked health insurance, that error was harmless. Except for two instances where she
experienced mask problems for treatment of sleep apnea, and could not afford to buy a new one,
Plaintiff never identified a single instance where her lack of health insurance impeded her medical
care. The court is not insensitive to the myriad of problems associated with lack of access to proper
medical care. However, in this case, there is nothing in the record to suggest, and Plaintiff has not
convincingly explained, that her lack of insurance impeded her medical care in a way that supports
a finding of disability. The court cannot speculate as to whether Plaintiff has undiagnosed diseases
or disorders that may be impacting her health. The court’s role is to evaluate whether the ALJ’s
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In her objections, Plaintiff focuses on whether the ALJ adequately explained the combined
effect of her impairments at step three, prior to the RFC determination. However, when considering
whether the ALJ properly considered the combined effect of impairments, the decision must be read
as a whole. See Brown v. Astrue, No. 10-1584, 2012 WL 3716792, *6 (D.S.C. Aug. 28, 2012)
(“Accordingly, the adequacy requirement of Walker is met if it is clear from the decision as a whole
that the Commissioner considered the combined effect of a claimant’s impairments.”). In any event,
the court is satisfied that the ALJ properly considered the combined effect of Plaintiff’s impairments
at step three to determine whether Plaintiff had a medical equivalence to a listing and at step four
when determining Plaintiff’s functional limitations for purposes of her RFC.
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decision is supported by substantial evidence. And, the court concludes that the ALJ’s RFC is
supported by substantial evidence.
Treating Physician Opinions. Plaintiff objects to the Magistrate Judge’s finding that
substantial evidence supports the ALJ’s decision to reject “the three treating opinions on record,”
which state that Plaintiff is disabled. Dr. McDonald provided two opinions (August and November
2004) and Dr. Gonsalves provided one opinion (March 28, 2006). After reviewing the ALJ’s
opinion, the record, and the Report, the court agrees that the ALJ’s decision to reject these two
physicians’ opinions concerning Plaintiff’s ability to work is supported by substantial evidence, for
the reasons stated in the Report.
Remand Order. Finally, Plaintiff objects because the Magistrate Judge “did not address the
ALJ’s failure to adhere to the 2011 District Court remand order as it was issued.” Dkt. No. 18 at 10.
The court has read the 2011 remand order and the ALJ decision that was reversed. The ALJ’s prior
decision was reversed and remanded in 2011 for the ALJ to consider the combined effect of
Plaintiff’s impairments and to further explain why Drs. McDonald and Gonsalves’s opinions were
rejected. On remand, the ALJ conducted a combined effect analysis and provided adequate
explanation for rejection of those opinions. The court, therefore, rejects Plaintiff’s objection.
CONCLUSION
For the reasons set forth above, the court adopts the Report and Recommendation of the
Magistrate Judge and affirms the decision of the Commissioner.
IT IS SO ORDERED.
S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
February 11, 2013
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