Morgan v. Commissioner of the Social Security Administration

Filing 18

ORDER RULING ON 13 REPORT AND RECOMMENDATION. The Court hereby reverses the decision of the Commissioner and remands this matter for further proceedings consistent with this opinion pursuant to Sentence Four of42 U.S.C. § 405(g). Signed by Honorable Richard M Gergel on 04/25/2013. (egra, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Steve Morgan,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 9: 12-562-RMG

ORDER

Plaintiffhas brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of
the final decision of the Commissioner of Social Security denying his claim for Disability
Insurance Benefits ("DIB"). In accord with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC,
this matter was referred to a United States Magistrate Judge for pre-trial handling. The
Magistrate Judge issued a Report and Recommendation on March 20, 2013, recommending that
the Commissioner's decision be affirmed. (Dkt. No. 13). The Plaintiff filed objections to the
Report and Recommendation and the Commissioner filed a reply. (Dkt. Nos. 15, 16). As more
fully set forth below, the decision of the Commissioner is reversed and remanded for further
action consistent with this order.
Legal 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 of those portions of the Report and Recommendation to which specific objection is

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made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(I).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. The Act provides that 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 preponderance." Thomas v. Celebrezze, 331 F.2d 541,543 (4th Cir. 1964). This
standard precludes de novo review of the factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).
Although the federal court's review role is a limited one, "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). Further, 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 514,519 (4th Cir. 1987).
The Commissioner, in passing upon an application for disability benefits, is required to
undertake a five-step sequential process. At Step One, the Commissioner must determine
whether the applicant is engaged in substantial gainful work. 20 C.F.R. § 404.1520(a)(4)(i). If
the claimant is not engaged in substantial gainful employment, the Commissioner proceeds to
Step Two, which involves a determination whether the claimant has any "severe medically
determinable physical or mental impairment." Id § 404.1 520(a)(4)(ii). If the claimant has one
or more severe impairments, the Commissioner proceeds to Step Three, which involves a
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determination whether any impairment of the claimant satisfies anyone of a designated list of
impairments that would automatically render the claimant disabled. fd. § 404. 1520(a)(4)(iii).
If the claimant does not have a listed impairment, the Commissioner must proceed to Step
Four, which involves an assessment of the claimant's Residual Functional Capacity ("RFC"). fd.
§ 404.1 520(a)(4)(iv). This requires assessment of the claimant's ability "to meet the physical,

mental, sensory, and other requirements of work." fd. § 404.1545(a)(4). In determining the
claimant's RFC, the Commissioner "must first identify the individual's functional limitations or
restrictions" and provide a narrative "describing how the evidence supports each conclusion,
citing specific medical facts ... and nonmedical evidence." SSR 96-8P, 61 Fed. Reg. 34474,
34475,34478 (July 2, 1996).
Once the claimant's RFC is determined, the Commissioner must assess whether the
claimant can do his past relevant work. 20 C.F.R. §§ 404. 1520(4)(iv), 1545(a)(5)(i). If the
claimant, notwithstanding the RFC determination, can still perform his past relevant work, he is
deemed not to be disabled. If the claimant cannot perform his past relevant work, the
Commissioner then proceeds to Step Five to determine if there is other available work in the
national economy he can perform in light of the RFC determination. fd. § 404.1 520(a)(4)(v).
Under the regulations ofthe Social Security Administration, the Commissioner is
obligated to consider all medical evidence and the opinions of medical sources, including treating
physicians. fd. § 404.1545. The regulation, known as the "Treating Physician Rule," imposes a
duty on the Commissioner to "evaluate every medical opinion we receive." fd. § 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

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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." Id. § 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 those opinions in light of a broad range of factors, including the examining relationship,
the 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. §§ 404.1527(c)(l)·
(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians
and to give "good reasons" in the written decision for the weight given to a treating source's
opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492 (July 2, 1996).
A Social Security claimant who satisfies the legal requirements for a work related
disability may nonetheless be denied benefits under some circumstances if he has been
noncompliant with medical treatment. Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985).
The Fourth Circuit has ruled, however, that "[i]fnoncompliance is ultimately to be found the
basis for denying benefits," the Commissioner carries the burden of producing evidence and
making a "particularized inquiry" that the claimant's condition was "reasonably remediable" and
he "lack[ed] good cause for failing to follow a prescribed treatment plan." Id. at 990-91;
Fleming v. Barnhart, 284 F. Supp. 2d 256, 274 (D. Md. 2003). This may require the adjudicator

"to recontact the individual or question the individual at the administrative proceeding in order to
determine whether there are good reasons the individual does not seek medical treatment." SSR
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96-7P, 61 Fed. Reg. 34483, 34487 (July 2, 1996). Further, "[e]ssential to a denial of benefits"
for noncompliance is a finding that if the claimant followed his prescribed treatment he could
return to work. Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir. 1985).
Discussion

Plaintiff alleges that he became disabled on and after May 30, 2008, as a result of a work
related back injury. He was then working as a maintenance supervisor, a position which required
considerable physical exertion and lifting. Transcript of Record ("Tr.") 77-78. Plaintiff was 46
years of age at the time of the alleged onset of his disability and is at the time of this order 50
years of age. Plaintiffs original complaints involved primarily lower extremity radicular pain
and he was diagnosed with nerve root compression at L5-S 1. Tr. 524, 529, 531. Plaintiff
underwent a complex and elaborate surgical procedure performed by an orthopaedic surgeon, Dr.
David Mitchell, on June 26, 2008, that included an anterior interbody fusion at the L5-S 1 level
and placement of cage instrumentation. Tr. 359-60. This surgery involves a frontal or anterior
approach to the spine and is one of the most demanding and challenging procedures performed in
orthopaedic surgery. Plaintiffs recovery was complicated by a severe post-operative staph
infection that required months of intravenous antibiotics, multiple additional surgeries to irrigate
and debride the wound site, and repeated visits to a wound care center. Tr. 327, 329, 331-32,
337-38,341,348,350,352,355-56.
As Plaintiff recovered from his major surgery and its significant post-operative
complications, he complained of continued radicular pain into his lower extremities, telling Dr.
Mitchell in one office visit on February 25,2009, that he had pain down his legs similar to what
he had before the surgery. Tr. 302, 305-06, 314, 321. On March 11,2009, Niel Visser, a

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physical therapist, performed a Functional Capacity Assessment of Plaintiff and concluded that
Plaintiff was capable of returning to medium work. Tr. 288-300. Dr. Mitchell concurred in this
finding on March 17, 2009, noting the patient may need to be reassessed in a few months. Tr.
286. Plaintiff returned to Dr. Mitchell on May 13,2009, complaining of pain in his back and
lower extremities and walking with a slow gait. Tr. 566-67. Dr. Mitchell apparently suggested
further operative treatment but the claimant indicated "he doesn't want anymore operative
intervention." Tr. 567. Dr. Mitchell voiced skepticism about the previous assessment that
Plaintiff was capable of medium work, noting he was out of work and "unable to return other
than [to a] very light duty sedentary type ofjob with lots of restrictions." Tr.567.
Plaintiff continued to remain out of work and several doctors examined him, apparently
concerning a then pending workman's compensation claim and this Social Security disability
claim. All examining physicians appeared to give credence to Plaintiffs complaints of persistent
pain. Dr. Robert Schwartz, a pain medicine specialist, examined Plaintiff on June 1,2009, and
his impression included a L5-S1 nerve root injury and right piriformis syndrome. Tr.399. Dr. S.
Emmett Lucas llI, an orthopaedic surgeon, performed an independent medical examination on
September 4,2009, and concluded, based on his personal interpretation of the radiographic films,
that Plaintiff had loose pedicle screws and his fusion was not solid. Tr.389. He indicated that
he believed Plaintiff should undergo further surgery and the functional assessment indicating he
could perform medium work needed to be repeated because of the patient's problems with
prolonged standing. Tr.389-90. On March 7,2011, Dr. W. Russell Rowland, an internist,
examined Plaintiff and concluded that Plaintiffs problems with prolonged standing limited him
to standing less than two hours in an eight-hour work day. Tr. 480-81, 487. Plaintiffs medical
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records were also subject to three chart reviews performed by internists, all of whom found
Plaintiffs functional limitations restricted him to lifting no more than 10 pounds occasionally.
Tr. 402,430,473. As explained by the Vocational Expert, such a lifting restriction limited
Plaintiff to performing no more than sedentary work. Tr.87.
Dr. Mitchell examined Plaintiff again during an office visit on February 8, 2011. Dr.
Mitchell documented the patient's complaints of chronic pain and noted his slow, antalgic gait.
Tr.499. He indicated that he discussed with Plaintiff "consideration ... [of] reinvestigation as
needed of his instrumentation and screws in his lumbar spine" but that the patient was not
"interested in any type of operative intervention at this time." Tr.499. Dr. Mitchell followed
this office visit with a letter to Plaintiff's counsel of March 14,2011, in which he stated that "the
patient has not been able to return to work and has continued to be unable to return to work." Tr.
497. He further indicated that Plaintiff could not perform a job where he had to sit or stand eight
hours per day and would need significant accommodations that would include "frequently sitting
down or laying down." Id.
The Administrative Law Judge ("ALJ") conducted an evidentiary hearing in this matter
on May 18, 2011. Plaintiff testified that he has chronic lower back and radicular pain down both
legs that is worsened with exertion. Tr. 70-71. He explained that he could perform such daily
chores as light house cleaning, cooking on a microwave, and washing dishes so long as he
limited his activities to approximately 15 minutes at a time. Tr. 70. He further explained that
any type of twisting or bending, such as mopping or vacuuming, "takes it completely out of me"
and "kills me." Tr. 68, 70. Plaintiff further testified that he organized his grocery shopping to
buy the minimal things possible and to go through the shortest line to limit the length of time he
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is required to stand. Tr. 73.
The ALl issued an order on June 17,2011, finding that Plaintiff was not disabled but was
limited to sedentary work. Tr. 24. This included a lifting limitation of no more than 10 pounds
occasionally and a restriction on standing or walking of no more than two hours in an eight hour
workday. Id. The ALl further found there were jobs in significant numbers in the national
economy that Plaintiff could perform. Tr. 32.
In reaching these conclusions, the ALl gave "no weight" to the opinions of the primary
treating specialist physician, Dr. Mitchell, expressed in his letter of March 14,2011. Tr.

28~29.

The ALl found that Dr. Mitchell's letter "fails to distinguish between the claimant being able to
return to his past work and being able to do 'other work' in the national economy" and "does not
speak to whether the claimant can engage in any full time work." Tr.29. The ALl also criticized
an earlier entry in Dr. Mitchell's medical record of May 23, 2009, in which Dr. Mitchell noted
that Plaintiff "has continued to be out of work and unable to return other than [to a] very light
duty sedentary type ofjob with lots of restrictions." Tr.567. The ALl found that Dr. Mitchell's
"extreme lack of specificity ... precludes me giving [the opinion] more than minimal weight."
Tr.29. The record contains no indication that the ALl attempted to contact Dr. Mitchell to
obtain clarification and specificity regarding his opinions.
The ALl also noted Plaintiffs unwillingness to undergo further surgery, suggesting that
this raised doubts regarding the credibility of Plaintiffs complaints of chronic pain. Tr. 27, 29.
The ALl observed that Dr. Mitchell had indicated that additional surgery "might benefit him,
pain wise" but Plaintiff was unwilling to allow Dr. Mitchell to perform additional surgery. Tr.
27. The ALl did not address Plaintiffs testimony that he had been told that "the only alternative
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· .. would be to go in and take everything out of the back and go in from the front and redo it,"
and there was "no guarantee that that would help." Tr.75. Plaintiff further explained that in
light of the major surgery he had already undergone and the months of post operative infection
that "I just don't know if I can take another one." Id

A. The Failure to Follow the Letter and Spirit of the Treating Physician Rule
The Treating Physician Rule, 20 C.F.R. § 404. 1527(c), clearly anticipates that the
opinions of a claimant's treating physician will be given special weight and deference. Under
certain circumstances, the opinion of the treating physician will be given controlling weight. Id

§ 404.1527(c)(2). Where the opinion of the treating physician is not given controlling weight,
"[t]reating source medical opinions are still entitled to deference" and must be weighed using the
various factors set for in the treating physician rule, including the length and nature of treatment
and whether the physician is a specialist. Id §§ 404.1 527(c)(l)-(6); SSR 96-2P, 61 Fed. Reg.
34490, 34491 (July 2, 1996). Further, to the extent the information from a treating physician is
"inadequate for us to determine whether you are disabled ... [w]e will first recontact your
treating physician ... to determine whether the additional information we need is readily
available." 20 C.F.R. § 404.l512(e)(1).1

1 This

regulation was modified on February 23,2012, and the requirement of the
adjudicator to contact the treating physician was removed. 77 Fed. Reg. 10651 (Feb. 23, 2012).
This modification occurred, however, after Plaintiffs claim was filed and the administrative
hearing was conducted in this matter, and this regulation remains binding on the Commissioner
in this proceeding. Further, the Commissioner made clear that despite the removal of the
universal requirement to contact the treating physician from the regulation, "we expect that our
adjudicators would continue to recontact your medical source when we believe such recontact is
the most effective and efficient way to resolve an inconsistency or insufficiency." How We
Collect and Consider Evidence of Disability, 76 Fed. Reg. 20282 (proposed Apr. 12,2011) (to be
codified at 20 C.F.R. pts. 404 and 416). It is not clear to the Court how the ALJ could resolve
any ambiguity regarding the scope or substance of Dr. Mitchell's opinions without addressing the
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A review of the treatment afforded Dr. Mitchell's opinions in this matter reveals a failure
to adhere to the most basic provisions of the Treating Physician Rule. First, there is no analysis
of the treatment relationship and history of Plaintiff and Dr. Mitchell, which in this case is highly
significant. Dr. Mitchell performed multiple surgical procedures on Plaintiff and saw him in his
office more than a dozen times. Tr. 302-07,317-19, 321-29, 331-32, 334-35, 337-38, 340-46,
348,350,355-56,359-60,497,498-500,526-27, 529-31, 533-35, 542, 566-68. Dr. Mitchell's
lengthy and intimate involvement in Plaintiffs care through this difficult and highly complex
surgery and post-operative period would appear to provide him "a detailed, longitudinal picture
of the [claimant's] medical impairments" and "unique perspective of the medical evidence" that
would normally entitle his opinions to the most careful consideration under the Treating
Physician Rule. 20 C.F.R. § 404.1527(c)(2). No other physician in this record remotely had the
type of treatment history with Plaintiff as Dr. Mitchell. However, this long and involved history
is not noted by the ALJ or contrasted with the opinions of chart reviewers and one-time
examiners whose opinions the ALJ has elected to adopt. Second, the ALJ failed to note that Dr.
Mitchell, as an orthopaedic surgeon, is a specialist and did not contrast his area of specialty,
particularly relevant in this matter, with the qualifications of the various chart reviewers and one­
time examiners whose opinions were relied upon by the ALJ. Id. § 404.1527(c)(5). Indeed, the
combination of Dr. Mitchell's lengthy treatment history and level of specialization would appear
to make his opinions particularly probative under the standards of the Treating Physician Rule.
Third, the ALJ failed to recontact Dr. Mitchell to obtain clarification regarding what was
allegedly unclear about the scope and substance of his opinions. If the ALJ could not discern

matter directly to the physician.
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from Dr. Mitchell's March 14, 20 11, letter whether Dr. Mitchell believed Plaintiff was disabled
from all employment or only his former employment, all the ALJ had to do was contact Dr.
Mitchell and obtain clarification. Under controlling regulatory law, he could not simply discard
the opinion of the primary treating specialist physician on the thin reed that the opinion just was
not clear. Similarly, if Dr. Mitchell's medical records of May 13,2009, did not provide
sufficient specificity relating to his opinion regarding the limitations Plaintiff would require to
return to work, dismissing those opinions summarily because they allegedly showed an "extreme
lack of specificity" is not good enough.
The Treating Physician Rule requires that if the opinions of a treating source are not
adopted as controlling they will be carefully evaluated and contrasted with other medical
opinions in the record pursuant to the specific standards set forth in § 404.lS27(c). The ALl's
decision clearly does not meet that standard. Further, § 404.IS12(e)(1) required the ALJ to
recontact Dr. Mitchell to clarify any opinion regarding Plaintiffs disability which is
insufficiently clear. She did not do this. These omissions require reversal ofthe decision of the
Commissioner and remand for further action consistent with this opinion.

B. Plaintiff's Refusal to Engage in Additional Surgery and the Impact on his
Credibility.
The ALJ made no secret of her disapproval of Plaintiffs decision not to undergo further
surgery which was either recommended or at least offered as a possible remedy for the claimant's
chronic pain. Tr. 27,29. It is certainly true that if a claimant is non-compliant with his medical
treatment or fails to follow the treatment recommendations of his physician he may, under some
circumstances, be disqualified from disability benefits. However, a claimant's reasonable

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decision declining further complex and risky surgery that does not carry a strong probability of
success should not have any adverse impact on a claimant's application for disability benefits or
an assessment of his credibility. As Social Security Ruling 96-7P sets forth, an adjudicator in a
Social Security disability proceeding "must not draw any inferences about an individual's ...
failure to seek or pursue regular medical treatment without first considering any explanations that
the individual may provide." 61 Fed. Reg. at 34487. The adjudicator must determine if the
claimant has "good reasons" not to seek a particular medical treatment. /d. Further, the
adjudicator must find that had the Plaintiff followed the recommended or offered treatment he
most probably would have remediated his disability and been able to return to work. Preston,
769 F.2d at 990-91; Fleming, 284 F. Supp. 2d at 274.
The record before the Court does not remotely meet this standard and the failure of the
ALJ to address these issues requires reversal and remand. The ALJ has not evaluated Plaintiffs
explanation for declining further surgery (high risk, low benefit) and determined whether this
constitutes "good reasons" for his decision. Moreover, the ALJ has not addressed the issue of
whether Plaintiffs condition is most probably remediable with the surgery. If the ALl seeks to
utilize Plaintiffs refusal to consider further surgery as a basis, in whole or in part, to deny him
Social Security disability benefits, she must on remand address Plaintiff s explanation and
determine if "good reasons" exist for his decision. Further, if she determines Plaintiff does not
have "good reasons" to decline further surgery, the ALJ must address the issue of whether his
condition is most probably remediable with surgery so as to allow him to return to work. 2

2 The ALl also challenges the Plaintiffs credibility regarding his complaints of pain
because of his ability to perform certain activities of daily living ("ADLs"), such as cleaning his
mobile home, cooking meals with a microwave, and driving an automobile. Tr. 25, 27, 28, 29.

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Conclusion

Based upon the foregoing, the Court hereby REVERSES the decision of the
Commissioner and REMANDS this matter for further proceedings consistent with this opinion
pursuant to Sentence Four of 42 U.S.C. § 405(g).3
AND IT IS SO ORDERED.

April"l~ 2013
Charleston, South Carolina

Plaintiff readily acknowledges his ability to perform various ADLs but asserts that he is limited
to performing these tasks for periods no longer than 15 minutes at a time. Tr.67-70. While a
claimant's ability to perform ADLs is an appropriate factor to consider in evaluating a claimant's
credibility regarding pain, it is also important to consider whether the claimant can sustain effort
over the length of a workday. Therefore, the AL] on remand should address the Plaintiffs
testimony that he can perform his ADLs only over a brief period of time.
In the course of this appeal, Plaintiff became 50 years of age on September 6, 2012.
Under Social Security regulations, he became on his 50th birthday a "person approaching
advanced age" and, with the findings of the Vocational Expert that Plaintiffwas limited to
sedentary work and is unskilled, he would generally be deemed disabled. 20 C.F.R. Pt. 404,
Subpt. P, App. 2, §§ 201(g); 201.12. The record is silent on Plaintiffs present disability status.
Ifhe has not yet been deemed disabled upon reaching 50 years of age, this matter should be
addressed by the AL] on remand.
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