Lincoln v. Commissioner of Social Security Administration
Filing
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ORDER RULING ON 19 REPORT AND RECOMMENDATION. The court adopts the recommendation of Magistrate Judge Marchant and remands the case to the Commissioner for further findings. Signed by Honorable R Bryan Harwell on 02/28/2014. (egra, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Leonard Lincoln,
)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of Social Security,
)
)
Defendant.
)
____________________________________)
C/A No.: 9:12-cv-03321-RBH
ORDER
The plaintiff, Leonard Lincoln, brought this action pursuant to 42 U.S.C. §§ 405(g) to obtain
judicial review of the final decision of the Commissioner of Social Security denying his claim for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (SSI) under the Social
Security Act.
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 405(g) of that Act provides: “[T]he findings of the
Commissioner 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); see, e.g., Daniel v.
Gardner, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); Tyler v.
Weinberger, 409 F. Supp. 776 (E.D. Va. 1976). This standard precludes a de novo review of the
factual circumstances that substitutes the court’s findings for those of the Commissioner. See, e.g.,
Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968). “[T]he
court [must] uphold the [Commissioner’s] decision even should the court disagree with such decision
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as long as it is supported by ‘substantial evidence.’” Blalock v. Richardson, 483 F.2d 773, 775 (4th
Cir. 1972). As noted by Judge Sobeloff in Flack v.Cohen, 413 F.2d 278 (4th Cir. 1969), “[f]rom 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.”
Id. at 279.
“[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.
Plaintiff filed his application for disability benefits with a protective filing date of February
12, 2010, alleging disability as of April 8, 2009, due to arthritis, gout, hypertension, and bronchitis.
Plaintiff’s claims were denied initially and upon reconsideration. The plaintiff then requested a
hearing before an administrative law judge (“ALJ”), which was held on August 1, 2011. The ALJ
thereafter denied plaintiff’s claims in a decision issued August 25, 2011. The ALJ’s findings became
the final decision of the Commissioner of Social Security. Plaintiff has now appealed to the federal
court.
The claimant was 45 years old on the alleged onset date. He completed the eleventh grade. His
past work experience includes employment as an automobile mechanic and heavy equipment operator.
Under the Social Security Act, the plaintiff's eligibility for benefits hinges on whether he “is
under a disability.” 42 U.S.C. § 423(a)(1)(D). The term “disability” is defined as the “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . “ Id. at § 423(d)(1)(A). The burden is on the
claimant to establish such disability. Preston v. Heckler, 769 F.2d 988, 990 n.* (4th Cir. 1985). A
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claimant may establish a prima facie case of disability based solely upon medical evidence by
demonstrating that her impairments meet or equal the medical criteria set forth in Appendix 1 of
Subpart P. 20 C.F.R. § 404.1520(d).
If such a showing is not possible, a claimant may also establish a prima facie case of disability
by proving that he could not perform his customary occupation as the result of physical or mental
impairments. Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975). Because this approach is premised
on the claimant's inability to resolve the question solely on medical considerations, it then becomes
necessary to consider the medical evidence in conjunction with certain “vocational factors.” 20 C.F.R.
§ 404.1560(b). These factors include the individual’s (1) “residual functional capacity,” id. at §
404.1561; (2) age, id. at § 404.1563; (3) education, id. at § 404.1564; (4) work experience, id. at §
404.1565; and (5) the existence of work “in significant numbers in the national economy” that the
individual can perform, id. at § 404.1561. If the assessment of the claimant's residual functional
capacity leads to the conclusion that he can no longer perform his previous work, it must be determined
whether the claimant can do some other type of work, taking into account remaining vocational factors.
Id. at § 404.1561. The interrelation between these vocational factors is governed by Appendix 2 of
Subpart P. Thus, according to the sequence of evaluation suggested by 20 C.F.R. § 404.1520, it must
be determined: (1) whether the claimant is currently gainfully employed, (2) whether he suffers from
some physical or mental impairment, (3) whether that impairment meets or equals the criteria of
Appendix 1, (4) whether, if those criteria are not met, the impairment prevents him from returning to
his previous work, and (5) whether the impairment prevents his from performing some other available
work.
The ALJ made the following findings in this case in his decision dated August 25, 2011:
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1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity
since April 8, 2009, the alleged onset date (20 C.F.R. § 1571,
et seq. and 416.971 et seq.)
3. The claimant has the following severe impairments:
gout; hypertension; heart disease; and asthma
(20 C.F.R. § 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination
of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform sedentary
work as defined in 20 C.F.R. 404.1567(a) and 416.967(a). Specifically,
the claimant is able to lift and carry up to 10 pounds occasionally and
lesser amounts frequently, sit for 6 hours in an 8 hour day, and stand
and walk occasionally. The claimant cannot climb ladders, ropes or
scaffolds. He can only occasionally climb ramps and stairs, stoop,
crouch, kneel and crawl. The claimant can frequently reach overhead.
He must avoid concentrated exposure to extreme cold, heat and
humidity. Additionally, he must avoid even moderate exposure to
unprotected heights.
6. The claimant is unable to perform any past relevant work
(20 C.F.R. § 404.1565 and 416.965).
7. The claimant was born on January 4, 1964 and was 45 years old,
which is defined as a younger individual age 45-49, on the alleged disability
onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security
Act, from April 8, 2009, through the date of this decision (20 C.F.R. § 404.1520(g)
and 416.920(g)).
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(Tr. pp. 15-22).
Pursuant to Local Civil Rule 83.VII.02(A), D.S.C, this action was referred to a United States
Magistrate Judge. On November 18, 2013, Magistrate Judge Bristow Marchant filed a report and
recommendation (“R&R”) suggesting that the decision of the Commissioner should be reversed
under sentence four of 42 U.S.C. § 405(g), and the case remanded to the Commissioner for further
proceedings. The defendant filed objections to the R&R on December 2, 2013. The plaintiff filed a
reply to Defendant’s objections on December 9, 2013.
The magistrate judge recommends that the case be remanded to the Commissioner to weigh
the opinions of the treating physician, Dr. Oladimeji, in accordance with the appropriate standards
and to obtain proper Vocational Expert testimony in compliance with SSR 00-4p, and for such
further administrative action as may be appropriate.
The Magistrate Judge makes only a recommendation to the court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo
determination 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 with instructions. 28 U.S.C. § 636(b)(1).
The 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. However, the court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the
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Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
DEFENDANT’S OBJECTIONS
In his objections to the R&R, the Commissioner alleges that the ALJ’s decision, when read as
a whole, provides “sufficient articulation to discern the basis for his conclusion.” She also asserts that
the restrictions in question lacked any support in the record, i.e., the plaintiff at no point alleged any
limitation in sitting and no medical source other than Dr. Oladimeji opined that the claimant would
have difficulties with concentration or attention due to his occasional chest pain. She further asserts
that the claimant failed to raise the issue of conflicts between the VE’s testimony and the D.O.T. at the
hearing and that the argument was accordingly waived. She also contends that any error in this regard
was harmless because one of the jobs the VE identified, that of assembler, presented no conflict
between the VE’s testimony and the D.O.T.
Plaintiff replies that the ALJ failed to apply the required factors or set out reasons why he did
not consider the treating physician’s opinions regarding Plaintiff’s limitations in sitting, concentration
and pace, and limitation to low stress jobs. Additionally, he asserts that the ALJ’s recitation that he had
complied with SSR 00-4p was erroneous when the transcript reflects that he did not do so.
ANALYSIS
Treating Physicians. Under 20 C.F.R. § 404.1527, the opinion of a treating physician is
generally entitled to more weight than the opinion of a non-treating physician. However, it is only
given controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20
C.F.R. § 404.1527(d)(2). Under section 404.1527, if an ALJ determines that a treating physician’s
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opinion is not entitled to controlling weight, he must then consider the weight to be given to the
physician’s opinion by applying five factors identified in the regulation: (1) the length of the treatment
relationship and the frequency of examinations; (2) the nature and extent of the treatment relationship;
(3) the evidence with which the physician supports his opinion; (4) the consistency of the opinion; and
(5) whether the physician is a specialist in the area in which he is rendering an opinion. 20 C.F.R. §
404.1527(d)(2)(i-ii) and (d)(3)-(5).
The Court agrees with the Magistrate Judge that the ALJ did not explain the reason that he
accorded the opinion by the treating physician, Dr. Oladimeji, some weight but ignored his opinions
regarding the length of time the claimant could sit at a time and the effect of his chest pain on his
attention and concentration. The Court will not attempt to weigh the evidence regarding either opinion,
as this is the initial function of the ALJ, after he applies the regulatory factors required for treating
physicians. As noted by the Magistrate Judge, the ALJ also failed to include any limitation to low
stress jobs in his hypothetical to the vocational expert, and when the plaintiff’s attorney asked the VE
to include the restrictions noted by Dr. Oladimeji, he testified that the plaintiff could not perform the
jobs identified with those limitations. On remand, the ALJ shall re-weigh the opinions by Dr.
Oladimeji and make appropriate findings. The ALJ should re-evaluate the plaintiff’s RFC after further
consideration of the treating physician’s opinions and complete the sequential analysis.1
Also, because the case is being remanded for the above purpose, the ALJ should include
restrictions found by the treating physician in his questions to the VE, unless those restrictions are
properly discounted, and should comply with SSR 00-4p regarding any conflicts between evidence
1
The ALJ decision mentions that the claimant received certain unemployment benefits. It is
unclear whether the onset date should be amended.
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from the VE and the D.O.T.
CONCLUSION
After carefully reviewing the record in this matter, the applicable law, and the positions of the
parties, the court adopts the recommendation of the Magistrate Judge and remands the case to the
Commissioner for further findings. For the foregoing reasons, all objections are overruled; the report
and recommendation of the magistrate judge is incorporated herein by reference; and the
Commissioner’s decision is reversed under Sentence Four of 42 U.S.C. § 405(g) and remanded for
further proceedings in accordance with this order.
IT IS SO ORDERED.
s/R. Bryan Harwell
R. Bryan Harwell
United States District Judge
February 28, 2014
Florence, South Carolina
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