Jackson v. Commissioner of Social Security Administration

Filing 26

ORDER RULING ON 19 REPORT AND RECOMMENDATION. The Court hereby reverses the decision of the Commissioner, pursuant to 42 U.S.C. § 405(g), and remands the matter to the Commissioner for further action. Signed by Honorable Richard M Gergel on 08/14/2014. (egra, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Aileen W. Jackson,
Plaintiff,
vs.
Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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Civil Action No. 9:13-741-RMG

ORDER

Plaintiff has 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 her claim for Disability
Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). 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 June 30, 2014, recommending that the Court affirm the decision of the
Commissioner. (Dkt. No. 19). The Plaintiff filed objections to the Report and Recommendation,
and the Commissioner filed a reply. (Dkt. No. 23, 24). As more fully set forth below, the Court
reverses the decision of the Commissioner and remands the matter 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

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determination of those portions of the Report and Recommendation to which specific objection is
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)(1).
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, 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. § 404.1 520(a)(4)(i). If
the claimant is not engaged in substantial gainful employment, the CommissiQner proceeds to
Step Two, which involves a determination whether the claimant has any "severe medically

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determinable physical or mental impairment." Id. § 404.lS20(a)(4)(ii). If the claimant has one
or more severe impairments, the Commissioner proceeds to Step Three, which involves a
determination whether any impairment of the claimant satisfies anyone of a designated list of
impairments that would automatically render the claimant disabled. Id. § 404.1S20(a)(4)(iii).
Where the claimant has mUltiple impairments but none satisfy independently the criteria for a
listed impairment, the Commissioner is obligated to consider the combined effect of the various
impairments and determine whether they are the medical equivalent of the criteria of a listed
impairment. 42 U.S.C. § 423(d)(2)(B); Walker v. Bowen, 889 F.2d 47, 49-S0 (1989); 20 C.F.R.

§ 416.1S26(b)(ii).
If the claimant does not have a listed impairment or the medical equivalent of a listed
impairment, the Commissioner must proceed to Step Four, which involves an assessment of the
claimant's Residual Functional Capacity ("RFC"). 20 C.F.R. § 404.lS20(a)(4)(iv). This requires
assessment of the claimant's ability "to meet the physical, mental, sensory, and other
requirements of work." Id. § 404. 1S45(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). To the extent the claimant has more than one mental or physical impairment, the
Commissioner must consider the combined effect of the claimant's multiple impairments, rather
than fragmentize them, and explain her "evaluation of the combined effects of the impairments."
Walker v. Bowen, 889 F.2d at 50.

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Once the claimant's RFC is determined, the Commissioner must assess whether the
claimant can do his past relevant work. 20 C.F.R. §§ 404.1S20(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 ifthere is other available "work which
exists in significant numbers either in the region where [the claimant] lives or in several regions
of the country" he can perform in light of the RFC determination. 42 U.S.C. § 423(d)(2)(A); 20
C.F.R. § 404. 1520(a)(4)(v). At Step Five, the burden shifts to the Commissioner to "show that
the claimant retains the capacity to perform an alternative work activity and that this specific type
ofjob exists in the national economy." Grant v. Schweiker, 699 F.2d 189,191 (4th Cir. 1983).
Discussion
Plaintiff was 44 years of age when she applied for disability benefits in March 2010. She
asserted, and the Administrative Law Judge ("ALR") found, at Step Two that she had a wide
array of severe physical and psychiatric impairments, including degenerative disc disease, PTSD,
mood disorder, neck pain, irritable bowel syndrome, obesity, hypertension, interstitial cystitis and
depression. Transcript of Record ("Tr.") 17. The ALJ found at Step Three that Plaintiff did not
have any impairment or combination of impairments that met any Listing. Tr. 18. The ALJ
further determined at Step Four that Plaintiff was limited by her impairments to less than the full
scope of sedentary work, which included the requirement of a sit/stand option and simple
repetitive tasks in a low stress environment with no public contact and only limited contact with
co-workers. Tr. 20. Plaintiff was also explicitly limited to only occasionally lifting 10 pounds.

Id Despite these significant limitations on her work related activities, the ALJ determined at
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Step Five Plaintiff was not disabled under the Social Security Act because there still existed jobs
in significant numbers in the national economy that she could perform despite her severe
impairments. Tr. 25.

It is important to note at the outset that under the ALJ's findings and analysis, Plaintiffs
impairments fall ever so slightly short of a finding of disability. She has been deemed by the
ALJ to be limited to a less than the full scope of sedentary work, the most impaired level a
claimant can have and still be considered capable of performing work. Under these
circumstances, an erroneous application of a controlling legal standard can have an oversized
significance since it may tip an extraordinarily close case over from non-disability to disability.

A.

The ALJ's finding that he accorded the opinion of Plaintiff's counselor,
Thais Ponder, no weight because as a counselor she "is not considered an
'acceptable medical source.'"

Plaintiff challenges the finding of the ALJ that he gave no weight to the opinions of her
mental health counselor because she was not an "acceptable medical source" under Social
Security Regulations. Tr.24. Plaintiff further argues that the ALJ improperly discounted Ms.
Ponder's opinions on the basis that there was not substantial support in the record to support her
opinions. Id.
The administrative record in this matter, numbering over 900 pages, includes treatment
records of a broad range of Plaintiff s health care providers, including those providing mental
health treatment. The mental health records document the claimant's long history of mental
health challenges, including prior suicide attempts and diagnoses of PTSD relating to childhood
traumas and sexual abuse, recurrent major depressive disorder, and mood disorder related to her
general medical condition. Tr. 631, 639, 843, 848, 852, 855. A consulting non-treating

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examiner, Mark A. McClain, Ph.D., found Plaintiff in March 2008 to be "experiencing
significant symptoms of depressed mood, panic disorder and posttraumatic stress disorder." Tr.
480-83. A follow up examination by Dr. McClain conducted in July 2010 reported that Plaintiff
had "significant symptoms of depressed mood and anxiety" and "most likely [was] experiencing
symptoms associated with bipolar-l disorder." Tr.582. Global Assessment of Functioning
("GAF") scores recorded during Plaintiff's various treatment sessions and evaluations ranged
from a low of 50 to a high of 65, with most scores in the 55-60 range. Tr. 482, 581,631, 639,
843, 849, 846, 852, 856.'
In the course of addressing Plaintiff's mental health impairments, the ALJ reviewed a
July 2010 document titled "Certificate of Disability" issued on the letterhead of the Charleston
Dorchester Mental Health Center and prepared by Plaintiff's mental health counselor and case
manager, Thais Ponder. Tr. 861. The Certificate indicates that the "applicant's disability" was
based upon her diagnosis with PTSD. Id. The administrative record also includes a "To Whom
it May Concern" letter dated August 1, 2011, also signed by Ms. Ponder, which indicates that
Plaintiff had a primary diagnosis ofPTSD and a secondary diagnosis of mood disorder. Tr.860.
This document further indicates that Plaintiff was under the regular care of Dr. Denise CornishMcTighe, a psychiatrist, and was also receiving weekly counseling sessions from Ms. Ponder.

Id. As mentioned above, the record also contains numerous treatment records from the

, A GAF score between 51 - 60 indicates moderate psychiatric symptoms or "moderate
difficulty in social, occupational, or school functioning." Am. Psychiatric Ass'n, Diagnostic &
Statistical Manual ofMental Disorders, 32 (Text Revision 4th Ed. 2000). A OAF score of 50
reflects "serious symptoms" or "serious impairment in social, occupational, or school
functioning." Id.

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Charleston Dorchester Mental Health Center documenting Plaintiff s ongoing treatment, clinical
history, medications and diagnoses.
The opinions of "acceptable medical sources," such as licensed physicians and
psychologists, are given special deference under Social Security regulations and under certain
circumstances are deemed controlling. 20 C.F.R. § 404.1527. Even where the opinions of
acceptable medical sources are not found to be controlling, the Commissioner pledges to weigh
those opinions in a manner that is highly deferential to treating and examining physicians. Id
The fact that providers deemed "acceptable medical sources" are given special treatment under
the Social Security Act does not mean, however, that the opinions of other providers, such as
counselors, social workers, and teachers, are to be ignored in evaluating a claim of disability.
Counselors, such as Ms. Ponder, are categorized as "other sources." The Commissioner pledges
to consider "all relevant evidence in the case record" in making a disability determination,
including evaluation of the opinions of "other sources." SSR 06-03p, 2006 WL 2263437 at 6
(August 9, 2006). The opinions of "other sources" are to be evaluated on a broad range of
factors, including the "nature and extent of the relationship," "the source's area of speciality or
expertise," the degree to which the source "presents relevant evidence" to support her opinion
and whether the evidence is consistent with other record evidence. Id at 7.
Measured by these standards, the ALJ's statement that he noted that Ms. Ponder "is not
considered an 'acceptable medical source' ... and therefore this opinion is not accorded any
weight" is obviously inconsistent with controlling Social Security rules for evaluating the
opinions of treating counselors. Reversal is necessary so that the fact finder can weigh Ms.
Ponder's opinions in light of the standards set forth in SSR 06-03p. Moreover, in evaluating the

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evidence in the record to determine the level of support for Ms. Ponder's opinions, the fact finder
should consider the full body of Plaintiff s treatment records at the Charleston Dorchester Mental
Health Center that Ms. Ponder obviously relied on in issuing the Certificate of Disability.

B.

The ALJ's failure to address and explain the combined effects of
of Plaintiffs multiple mental and physical impairments.

It is well established under Social Security law that the Commissioner, in evaluating

a claimant's application for disability, must consider the "combined effect of all the individual's
impairments without regard to whether any such impairment, if considered separately, would be
of such severity." 42 U.S.C. § 423(d)(2)(B). The Fourth Circuit has observed that "[i]t is
axiomatic that disability may result from a number of impairments which, taken separately,
might not be disabling, but whose total effect, taken together, is to render the claimant unable to
engage in substantial gainful activity." Walker v. Bowen, 889 F.2d at 50. Thus, the
Commissioner "must consider the combined effect of a claimant's impairments and not
fragmentize them." ld
Where a claimant has multiple impairments, such as are present here, the Commissioner
is obligated to evaluate both the full scope of each impairment and the combined effect of all of
the impairments collectively. As Judge Blatt noted in Saxon v. Astrue, 662 F.Supp.2d 471,480
(D.S.C. 2009), it is critical that the Commissioner both consider and explain the combined
effects of a claimant's multiple impairments. It is not sufficient to simply state that the combined
effects of the claimant's impairments have been considered.
In the matter before the Court, the ALJ addressed Plaintiffs mental health issues at Step
Three and concluded that they did not meet individually or in combination any of the mental

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health listings. Tr. 20. At Step Four, the ALl dispensed with any pretense of considering the
combined effects of Plaintiff's three severe mental health impairments (PTSD, depression and
mood disorder) and her six severe physical impairments (degenerative disc disease, neck pain,
irritable bowel syndrome, obesity, hypertension and interstitial cystitis). Instead, the ALl
addressed in separate and distinct paragraphs the Plaintiff's "physical impairments" and then her
"mental impairments." Tr. 20-25. This amounts to classic fragmenting of Plaintiff's
impairments without any effort to evaluate and describe the combined effect of these myriad
severe impairments. It takes little imagination to appreciate the potential significance of the
combined effects of these numerous severe impairments, recognizing that severe pain or
depression can aggravate and worsen other existing impairments.
The failure of the ALl to address and explain the combined effects of Plaintiff's multiple
severe impairments at Step Four requires reversal and remand under Walker. On remand, the
fact finder must consider the combined and collective impairment of theses conditions and to
provide a full explanation sufficient for a reviewing court to determine if the Commissioner has
properly followed the clear statutory mandate to consider the combined effect of multiple
impairments in making a disability determination.
Conclusion

Based on the foregoing, the Court hereby REVERSES the decision of the Commissioner,
pursuant to 42 U.S.C. § 405(g), and REMANDS the matter to the Commissioner for further

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action consistent with this order. 2
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Judge

August!

V' 2014

Charles~, South Carolina

Plaintiffs date of birth is December 23, 1965, making her nearly 49 years of age. With
the existing finding that she is limited to less than sedentary work, she will likely be deemed
disabled no later than December 23,2015, and should be evaluated promptly on remand for
eligibility for disability for persons between ages 45-49 who do not have the ability to perform
the full range of sedentary work. 20 C.F.R. Pt. 404, Subpt. P, App.2 § 200(h)(3). This is in
addition to requirement of the Commissioner to reevaluate Plaintiffs disability claim in
compliance with the Court's order.
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