Peterson v. Commissioner of Social Security Administration

Filing 25

ORDER RULING ON 17 REPORT AND RECOMMENDATION This Court does not concur in the ultimate recommendation of the Magistrate Judge. The decision of the Commissioner to deny benefits is, therefore, reversed and remanded. Signed by Honorable A Marvin Quattlebaum, Jr on 08/29/2018. (egra, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

William P. Peterson, Jr.,
)
Plaintiff, )
vs.
)
)
)
)
Nancy A. Berryhill, Acting
)
Commissioner of Social Security,
)
Defendant. )
_______________________________
)

Civil Action No.: 9:17-cv-00516-AMQ

ORDER AND OPINION

This is a Social Security appeal brought pursuant to 42 U.S.C. § 405(g) in which Plaintiff
William P. Peterson, Jr. (“Plaintiff”) seeks judicial review of the final decision of the Acting
Commissioner of Social Security (“Commissioner”) denying his claim for disability insurance
benefits (“DIB”). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 D.S.C., this
matter was referred to a United States Magistrate Judge for pre-trial handling. The Magistrate
Judge issued a Report and Recommendation (“Report”) on March 12, 2018, recommending that
the Commissioner’s decision be affirmed. (ECF No. 17). Plaintiff filed objections to the Report
(“Objections”) on March 21, 2018 (ECF No. 20), and the Commissioner filed her Reply on April
4, 2018. (ECF No. 21.) The Court has reviewed Plaintiff’s Objections and the record in this case.
For the reasons stated below, the Court declines to adopt the Report and Recommendation and,
therefore, reverses and remands the Commissioner’s decision.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth in detail the relevant facts and standards of law on this matter, and

the Court incorporates them and summarizes below in relevant part. Plaintiff filed an application

for DIB benefits on March 21, 2013. (Tr. at 12.) Plaintiff alleged a disability onset date of June
15, 2010. (Tr. at 12.) The application was denied initially and upon reconsideration by the Social
Security Administration. (Tr. at 12.) Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”) which was held on September 15, 2015. (Tr. at 12.) At the hearing, Plaintiff
amended his alleged onset date to January 8, 2013. (Tr. at 35.) On October 14, 2015, the ALJ
issued a decision and denied Plaintiff’s claim. (Tr. at 12-25.) The Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision (Tr. at 1), thereby making the ALJ’s decision
the final decision of the Commissioner. (Tr. at 1-3.) Plaintiff filed an action in this Court on
February 23, 2017. (ECF No. 1.)
II.

REPORT AND RECOMMENDATION
The Magistrate Judge recommends that the Commissioner’s final decision be affirmed.

(ECF No. 17 at 26.) 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 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 him with instructions. 28
U.S.C. § 636(b)(1). “However, the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the report
and recommendation to which no objections are addressed. While the level of scrutiny entailed
by the Court’s review of the Report thus depends on whether or not objections have been filed, in
either case the Court is free, after review, to accept, reject, or modify any of the magistrate judge’s

2

findings or recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp.
137, 138 (D.S.C. 1992) (internal citations omitted).
In the Report, the Magistrate Judge reviewed Plaintiff’s medical history in detail. (ECF
No. 17 at 4-14.) The Magistrate Judge then addressed the ALJ’s credibility findings in response
to Plaintiff’s assertion that the Residual Functional Capacity (“RFC”) is not supported by
substantial evidence. (ECF No. 17 at 14.) In so doing, he detailed the relevant legal framework in
effect at the time of the ALJ’s decision, and the objective and subjective evidence in the record
considered by the ALJ in assessing the credibility of Plaintiff’s statements. (ECF No. 17 at 1415.) The Magistrate Judge also detailed the ALJ’s consideration of Plaintiff’s testimony regarding
the effects of his mental impairments, but found no reversible error in the ALJ’s findings on the
issue. (ECF No. 17 at 17.) The Magistrate Judge noted that the ALJ accounted for Plaintiff’s
alleged mental impairments and medication side effects by limiting his exposure to work place
hazards and to the performance of only unskilled work with no production-paced work. (ECF No.
17 at 18.) He also opined that the ALJ discounted Plaintiff’s allegations concerning his anxiety
and depression based on treatment records, the findings of the state agency consultants, and
inconsistencies between Plaintiff’s allegations and his medical records, as well as the entire record.
(ECF No. 17 at 19.)
Turning specifically to the ALJ’s RFC determination, the Magistrate Judge detailed the
ALJ’s narrative discussion of the medical and non-medical evidence leading to the ALJ’s
conclusion that Plaintiff had the RFC to perform a limited range of sedentary work, and her reasons
for discounting certain of the opinions. (ECF No. 17 at 21-22.)

In sum, the Magistrate Judge

concludes that the ALJ’s discussion and analysis satisfies the requirements of SSR 96-8p, that the
decision reflects the ALJ’s consideration of the record evidence and the effect Plaintiff’s
3

impairments had on his ability to work, and that the ALJ sufficiently articulated her assessment of
the evidence such that the Court can trace the path of the ALJ’s reasoning. (ECF No. 17 at 24-25.)
The Magistrate Judge concluded that substantial evidence supports both the ALJ’s credibility and
RFC assessment, recommending this Court affirm the decision of the Commissioner. (ECF No. 17
at 26.)
III.

PARTIES’ RESPONSE
Plaintiff filed Objections to the Report on March 21, 2018. (ECF No. 20.) Plaintiff argues

that the ALJ’s ruling runs counter to SSR 12-2p, and that the ALJ did not provide sufficient
explanation for this Court to determine that the ALJ accounted for the subjective nature of
Plaintiff’s symptoms associated with fibromyalgia in her analysis beyond step two. (ECF No. 20
at 7.) Plaintiff contends that the ALJ and Magistrate Judge erred in relying on a lack of objective
medical evidence to support Plaintiff’s fibromyalgia symptoms, improperly discounting the
limitations of pain and fatigue caused by the disease. (ECF No. 20 at 3.) Plaintiff argues that the
ALJ overlooked serious mental health symptoms suffered by Plaintiff in making her findings.
(ECF No. 20 at 3-4.)
Plaintiff also objects to the ALJ’s RFC assessment, specifically claiming the ALJ failed to
explain why Plaintiff is able to perform sedentary work, in light of objective and subjective
evidence of nonexertional and exertional symptoms of fibromyalgia and serious mental illness.
(ECF No. 20 at 5.) Plaintiff contends that the ALJ’s limited explanation warrants remand. Finally,
Plaintiff claims that the Magistrate Judge and the ALJ overlooked critical aspects of Plaintiff’s
treatment history in discounting the opinion of Plaintiff’s treating physician. (ECF No. 20 at 6.)
The Commissioner filed a response to Plaintiff’s Objections, relying on her previous briefing to

4

the Court and the Report in asking this Court to affirm the Commissioner’s decision. (ECF No.
21.)
IV.

DISCUSSION OF THE LAW
A. STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the Social

Security Act is a limited one. Under 42 U.S.C. § 405(g), the court may only review whether the
Commissioner’s decision is supported by substantial evidence and whether the correct law was
applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive . . .”); Myers v. Califano, 611 F.2d
980, 982 (4th Cir. 1980). “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). 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). Accordingly, “the court [must] uphold the [Commissioner’s] decision even should the court
disagree with such decision as long as it is supported by ‘substantial evidence.’” Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
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 standard or misapplication
of the law. Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987). “[T]he courts must not abdicate
5

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. In order for a reviewing court to determine whether the Commissioner based a
decision on substantial evidence, “the decision must include the reasons for the determination . . .
.” Green v. Chater, 64 F.3d 657, 1995 WL 478032, *2 (4th Cir. 1995) (citing Cook v. Heckler,
783 F.2d 1168, 1172 (4th Cir. 1986)).
B.

ANALYSIS AND DISCUSSION

The Agency has established a five-step sequential evaluation process for determining if a
person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). The five steps are: (1) whether the
claimant is currently engaging in substantial gainful activity; (2) whether the claimant has a
medically determinable severe impairment(s); (3) whether such impairment(s) meets or equals an
impairment set forth in the Listings; (4) whether the impairment(s) prevents the claimant from
returning to his past relevant work; and, if so, (5) whether the claimant is able to perform other
work as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); see Woods v. Berryhill, 888 F.3d 686, 689 (4th Cir. 2018). It is Plaintiff’s duty both to produce
evidence and prove he is disabled under the Act. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir.
1995)(“The applicant bears the burden of production and proof during the first four steps of the
inquiry.”). Nevertheless, the ALJ is to develop the record and where he “fails in his duty to fully
inquire into the issues necessary for adequate development of the record, and such failure is
prejudicial to the claimant, the case should be remanded.” Marsh v. Harris, 632 F.2d 296, 300
(4th Cir. 1980).
Here, the ALJ found that Plaintiff had the following severe impairments: obesity,
fibromyalgia, degenerative disc disease, history of pericarditis, depression and anxiety. (Tr. at 14.)
6

In view of the medical evidence, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of a listing. (Tr. at 15.)
The ALJ gave specific attention to Plaintiff’s fibromyalgia, indicating that she evaluated Plaintiff’s
fibromyalgia under SSR 12-2p. (Tr. at 15.) The ALJ indicated “[w]hile the claimant’s treating
physician noted the claimant exhibited tenderpoints consistent with fibromyalgia, there is no
evidence that other disorders that could cause these symptoms/manifestations were excluded.” (Tr.
at 15.) Still, giving Plaintiff the benefit of the doubt, the ALJ found “there is sufficient evidence
to assess the claimant’s fibromyalgia as a medically determinable impairment and have evaluated
it under the listings in Section 1.00.” (Tr. at 15.) Having done so, ALJ ultimately concluded that
Plaintiff’s fibromyalgia did not meet or medically equal any listing under Section 1.00. (Tr. at
15.) The ALJ also considered all of Plaintiff’s other alleged impairments and the combined effect
of those impairments, both severe and non-severe, on Plaintiff’s ability to work. (Tr. at 17.) The
ALJ acknowledged that while the combination of Plaintiff’s impairments imposes some
limitations, there is no indication that the combination of impairments imposes greater limitations
than that of Plaintiff’s RFC. (Tr. at 17.) In view of the entire record, the ALJ found that Plaintiff
has the RFC to perform sedentary work as further explained in the decision. In so doing, the ALJ
considered opinion evidence, as well as all symptoms in light of the objective medical evidence
and other evidence. (Tr. at 18-24.) Considering Plaintiff’s age, education, work experience and
RFC, the ALJ concluded that there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. (Tr. at 24.)
This Court has reviewed Plaintiff’s Objections, the Report and the record in this case. The
Report is thorough, well-reasoned and consistent with the analysis the undersigned would expect.

7

Notwithstanding, the Court believes that the matter should be remanded for the reasons set forth
below.
In terms of an objection, Plaintiff claims that the ALJ did not did not provide sufficient
explanation for this Court to determine whether the ALJ accounted for the subjective nature of
Plaintiff’s fibromyalgia symptoms in her analysis beyond step two. Plaintiff contends that the
Magistrate Judge discounted Plaintiff’s fibromyalgia symptoms in his review of the ALJ’s
decision. (ECF No. 20 at 2.) The ALJ explained that she evaluated Plaintiff’s fibromyalgia
symptoms in accordance with SSR 12-2p. SSR 12-2p gives guidance on how to develop evidence
to establish that a person has a medically determinable impairment of fibromyalgia, and how to
develop fibromyalgia in disability claims and continuing disability reviews. See Social Security
Ruling, SSR 12-2p; Titles II and XVI: Evaluation of Fibromyalgia, 77 FR 43640-01. The Ruling
sets forth the two-step process an ALJ should use to evaluate a person’s statements about his
symptoms and functional limitations. After a medically determinable impairment is established,
an ALJ will “evaluate the intensity of a person’s pain or any other symptoms and determine the
extent to which the symptoms limit the person’s capacity to work.” Id.
Here, the ALJ addressed at step three, that fibromyalgia (and in combination) did not meet
or medically equal any listing, but in doing so, assessed fibromyalgia as a medically determinable
impairment in a manner consistent with SSR 12-2p. (Tr. at 15.) At step four, in evaluating the
RFC, the ALJ noted Plaintiff’s complaint of joint pain in an April 2013 medical record, among
other objective medical findings which indicated, inter alia, Plaintiff’s full range of motion of all
joints, normal gait and full strength. (Tr. at 18.) The ALJ then indicated that she accounted for
Plaintiff’s fibromyalgia and reports of related fatigue in limiting the amount he can “lift, carry,
stand, walk and perform postural activities and in finding [he] can perform only unskilled work
8

with no production-paced work.” (Tr. at 19.) The ALJ also concluded that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of Plaintiff’s medically determinable
impairments were not entirely credible. (Tr. at 22.)

Although the ALJ’s conclusions may

ultimately be correct, SSR 12-2p requires the ALJ to “evaluate the intensity and persistence of the
person’s pain or any other symptoms and determine the extent to which the symptoms limit the
person’s capacity for work.” Social Security Ruling, SSR 12-2p; Titles II and XVI: Evaluation of
Fibromyalgia, 77 FR 43640-01. At the same time, in order for this Court to determine if substantial
evidence supports the ALJ’s ruling, the record “should include a discussion of which evidence the
ALJ found credible and why, and specific application of the pertinent legal requirements to the
record evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). “If the reviewing court
has no way of evaluating the basis for the ALJ’s decision, then the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.” Id. (internal
citations and quotations omitted).
Upon conducting a de novo review, it is not clear to this Court whether and how the ALJ
in fact considered Plaintiff’s subjective complaints of pain in the RFC assessment. (Tr. at 41-42);
see Myers v. Califano, 611 F.2d 980, 983 (4th Cir. 1980)(“The administrative law judge should
have evaluated the pain’s impact, even though its intensity was shown only by subjective
evidence.”); Smith v. Colvin, No. 1:14-CV-04400-RBH, 2016 WL 1089302, at *8 (D.S.C. Mar.
21, 2016)(“Although Plaintiff’s testimony accentuates those symptoms consistent with
fibromyalgia, the ALJ failed to specifically account for this testimony detailing Plaintiff’s
subjective complaints of pain.”). Although the ALJ found Plaintiff’s fibromyalgia to be a severe
impairment, she does not include an explanation of how Plaintiff’s fibromyalgia impacts his ability
to perform work or otherwise affected the determination of Plaintiff’s RFC. The ALJ indicates that
9

she accounted for Plaintiff’s “subjective reports of pain and fatigue symptoms in limiting the
amount he can lift, perform postural activities, and be exposed to hazards.” (Tr. at 23-24.)
However, her explanation for doing so is not sufficiently clear to allow the Court to conduct a
meaningful review of the decision. See Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016). The
ALJ’s decision may turn out to be correct. This decision is not intended to suggest otherwise.
However, to allow for a proper review, the decision needs a more fulsome explanation of how
Plaintiff’s subjective reports were evaluated.
Likewise, Plaintiff argues that the ALJ failed to explain why, in light of objective and
subjective evidence of fibromyalgia and other impairments, Plaintiff would be able to perform
sedentary work. (ECF No. 20 at 5.) Plaintiff argues that remand is necessary under Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015), an opinion where the Fourth Circuit concluded that an ALJ
erred by not conducting a function-by-function analysis, and not explaining the plaintiff’s
moderate limitation in her ability to maintain her concentration, persistence, or pace, among other
things. Here, the Magistrate Judge correctly notes the ALJ included in her decision a narrative
discussion of the medical and non-medical evidence in her RFC analysis. Further, the Magistrate
Judge correctly cites the requirement under Mascio for a function-by-function analysis. The ALJ,
however, does not explain her “function-by-function” reasons for ultimately concluding Plaintiff
can perform a reduced range of sedentary work in a manner that would allow for meaningful
review.
“Judicial review of an administrative decision is impossible without an adequate
explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th
Cir. 1983). To be sure, the Court does not express an opinion as to whether the ALJ’s ultimate
conclusion that Plaintiff is not entitled to benefits is correct. However, in light of Mascio, remand
10

is necessary in this case.1 On remand, the ALJ should fully assess Plaintiff’s ability to perform
work-related tasks on a function-by-function basis, and sufficiently explain her findings and
reasons for crediting or discrediting evidence, including Plaintiff’s subjective complaints of pain
in a manner consistent with this Order.
V.

CONCLUSION
After a thorough de novo review of the Report and the record in this case pursuant to the

standard set forth above, this Court does not concur in the ultimate recommendation of the
Magistrate Judge. This Court incorporates the law and facts set forth in the Report by reference
to the extent not inconsistent with this order, but otherwise declines to adopt the Report in full.
The decision of the Commissioner to deny benefits is, therefore, REVERSED and REMANDED
for additional consideration and analysis consistent with this Order.
IT IS SO ORDERED.
/s/ A. Marvin Quattlebaum, Jr.
United States District Judge
August 29, 2018
Greenville, South Carolina

1

Plaintiff makes two additional objections in arguing that: (1) the ALJ overlooked serious mental
health symptoms suffered by Plaintiff in making her findings (ECF No. 20 at 3-4); and (2) the ALJ
improperly gave treating physician Dr. Hank Burger’s opinion less weight in light of Plaintiff’s
treatment history (ECF No. 20 at 5-6.) The Court has reviewed the record and finds no error in
that the ALJ explained her findings on these points in great detail and they are supported by
substantial evidence in the record. But because this Court finds that the ALJ’s failure to adequately
explain her RFC assessment and analysis of Plaintiff’s subjective complaints of pain and
credibility is a sufficient basis for remand, the Commissioner should take into account these issues
on remand, particularly to the extent they may impact the RFC assessment.
11