Williams v. Commissioner of Social Security Administration

Filing 17

ORDER RULING ON 12 REPORT AND RECOMMENDATION It is ordered that the Commissioner's final decision of no disability is affirmed. Signed by Honorable Margaret B Seymour on 09/05/2018. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Robin Lynn Williams,

)
)
Plaintiff,
)
)
v.
)
)
Nancy A. Berryhill,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)

C/A No. 9:17-cv-01206-MBS

ORDER AND OPINION

On May 9, 2017, Plaintiff Robin Lynn Williams (“Plaintiff”) filed the within action pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Acting Commissioner
of Social Security (the “Commissioner”) denying her claim for Disability Insurance Benefits
(“DIB”).
I. PROCEDURAL HISTORY
Plaintiff filed her DIB application on March 7, 2013, alleging disability beginning December
4, 2013.1 R. 146.

Plaintiff’s application was denied initially on May 8, 2013, and upon

reconsideration on July 23, 2013. R. 146. A hearing was held before an Administrative Law Judge
(“ALJ”) on January 6, 2015, at which Plaintiff and a vocational expert testified. Id. at 28-94. The
ALJ issued her decision on March 22, 2015. Id. at 146-63. The ALJ determined that Plaintiff has
the following severe impairments: degnerative disc disease and myofascial pain syndrome. Id. at
149.

The ALJ also determined that Plaintiff has the following non-severe impairments:

fibromyalgia, rheumatoid arthritis, myofascial pain syndrome, carpel tunnel syndrome, and asthma.
Id. at 150. The ALJ found that Plaintiff did not have an impairment or combination of impairments

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Plaintiff previously had filed an application for DIB, which was on December 3, 2010. R. 29.

that met or equaled a listing set forth in 20 C.F.R. Pt. 404, subpt. P, App. 1. The ALJ further found
that Plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. §
404.1567(b), and that while “some of the [Plaintiff’s] medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms[, . . . ] the [Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible
for the reasons explained in this decision.” R. 153. The ALJ noted that the record contained no
updated studies, that the progress notes prepared by Plaintiff’s treating physician, Neal Goldberger,
M.D., showed Plaintiff had good flexion extension, and side rotation of her lumbar spine, no
significant tenderness over her cervical facets to palpitation, good and equal strength throughout
both upper and lower extremities. Id. at 156-58. The ALJ observed that Dr. Goldberger’s notes
regarding Plaintiff’s myofascial pain syndrome, lumbar nerve root irritation, and cervical nerve root
irritation were not supported by medical evidence. Id. at 158. Thus, the ALJ concluded that
Plaintiff was not under a disability as defined in the Social Security Act. Id. at 163. Plaintiff filed
a request for review of the ALJ’s decision, which was denied by the Appeals Council on September
30, 2016, making the ALJ’s decision the “final decision” of the Commissioner. Id. at 1-5.
Plaintiff challenges the ALJ’s decision on two grounds: (1) the ALJ failed to properly
evaluate the opinion evidence, and (2) the ALJ made inconsistent findings regarding Plaintiff’s
impairments. ECF No. 8. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 (D.S.C.),
this matter was referred to United States Magistrate Judge Bristow Marchant for a Report and
Recommendation. On June 7, 2018, the Magistrate Judge filed a Report and Recommendation in
which he recommended that the Commissioner’s decision to deny benefits be affirmed. ECF No.
12. Plaintiff filed objections to the Report and Recommendation on June 21, 2018, to which the
Commissioner filed a reply on July 3, 2018.
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The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions.
II. STANDARD OF REVIEW
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 that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. § 4059(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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “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 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 [her] conclusion is rational.” Vitek,
438 F.2d at 1157-58.
The Commissioner’s findings of fact are not binding if they were based upon the application
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of an improper legal standard. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). However, the
Commissioner’s denial of benefits shall be reversed only if no reasonable mind could accept the
record as adequate to support that determination. Richardson v. Perales, 402 U.S. 389, 401 (1971).
III. DISCUSSION
Plaintiff was born on August 31, 1963 and was forty-nine years old on the day of her alleged
disability date onset date. R. 161. She has a high school education and has past work experience as
an account manager/executive. R. 161. Plaintiff alleges disability due to a slip and fall accident that
occurred in 2006. R. 35. Plaintiff’s accident resulted in lumbar discectomy surgery in October 2007
and cervical disc fusion surgery in March 2009. R. 35. Plaintiff further alleges that she has extreme
muscle fatigue, muscle spasms, and numbness due to steroid injections, R. 36, and also has carpal
tunnel, bilateral carpal tunnel, and nerve damage in her left arm and left leg, R. 58.
A.

Objection One: Opinion of Plaintiff’s Treating Physician
Pursuant to 20 C.F.R. § 404.1527(c), the Commissioner will evaluate every medical opinion

received and ordinarily will accord greater weight to the opinion of treating medical sources because
treating physicians are best able to provide “a detailed, longitudinal picture” of a claimant’s alleged
disability. The ALJ gave Dr. Goldberger’s opinions little weight because of “their inconsistency
with each other, his treatment notes, and the record as a whole.” R. 159. The ALJ then specified
instances to support this statement. Id. at159-60. The Magistrate Judge found no reversible error
in the ALJ’s decision. ECF No. 12, 7 (citing Poling v. Halter, No. Civ. A. 1:00CV40, 2001 WL
34630642, at *7 (N.D.W. Va. Mar. 29, 2001) (“It is the duty of the ALJ, rather than the reviewing
court, to assess the evidence of record and draw inferences therefrom.”)).
Plaintiff objects to the Magistrate Judge’s finding that the ALJ properly evaluated the
opinion of Plaintiff’s treating physician, Dr. Goldberger. ECF No. 14, 1. Plaintiff contends that the
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Magistrate Judge “does not address the fact that myofascial pain, and fibromyalgia, cause tenderness
and produce essentially normal findings.” Id. at 2. Plaintiff further alleges that the ALJ’s reasoning
for giving little weight to Dr. Goldberger’s opinion is inconsistent with the record. Id. at 4. Plaintiff
asserts that she is not attempting to re-weigh the evidence, as the Magistrate Judge suggests, but is
instead requesting remand to the Commissioner for further consideration. Id.
Plaintiff relies on Godwin v. Colvin, C/A No. 4:15-cv-1953, 2016 WL 5425011 (D.S.C. Sept.
29, 2016), and Smith v. Colvin, C/A No. 1:14-cv-4400-BBH, 2016 WL 1089302 (D.S.C. Mar. 21,
2016). In Godwin, the court found that the ALJ failed to point to substantial evidence to support his
decision to deny the opinion of a doctor who treated plaintiff over several years for fibromyalgia.
Godwin, 2016 WL 5425011, at *12. Accordingly, the Commissioner’s decision was reversed and
remanded for further administrative action. Id. at *13. In Smith, the court found that the ALJ
erroneously relied on a lack of objective medical evidence to evaluate Plaintiff’s fibromyalgia.
Smith, 2016 WL 5425011, at *8. Specifically, the Smith court found that the ALJ’s analysis failed
to account for Plaintiff’s testimony detailing her subjective complaints of fibromyalgia. Id. The
Commissioner’s decision was reversed and remanded for the Commissioner to reevaluate the
severity of Plaintiff’s fibromyalgia.
The court finds that Godwin and Smith are distinguishable from the present case. Here, the
ALJ noted the lack of objective medical evidence to support Plaintiff’s diagnosis; however, the ALJ
also considered Plaintiff’s testimony and provided an explanation for giving Dr. Goldberger’s
opinion little weight with respect to Plaintiff’s fibromyalgia diagnosis. R. 150, 155. Particularly,
the ALJ noted that “at the hearing [Plaintiff] testified that she had a longstanding history of
fibromyalgia and rheumatoid arthritis, dating back to when she was in her 20’s.” R. 150. The ALJ
noted that “she was able to work for decades with these impairments.” Id. The ALJ further noted
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that “[Plaintiff] also testified that she has not had any recent treatment for these impairments.” Id.
The ALJ found that while “[t]here was no supporting objective testing or imaging, yet Plaintiff
continued to receive injections and refills of her medications from Dr. Goldberger.” Id. at 156. The
ALJ noted that “[a]lthough the [Plaintiff] testified that the injection and medication did not fully
relieve her pain, she reported to Dr. Goldberger that the medications, were, in fact, helping.” Id.
As the Magistrate Judge noted, “the ALJ found that Plaintiff’s medical evidence and records,
including updated evidence and medical records from Dr. Goldberger, did not show that Plaintiff’s
condition had significantly worsened or become disabling since the date of her prior decision
through the date she was last insured for disability benefits (December 31, 2012).” ECF No. 12, 6.
The ALJ evaluated the opinion of Dr. Goldberg as follows:
I have considered the opinions of Dr. Goldberger but have given the opinions little
weight due to their inconsistency with each other, his treatment notes, and the record
as a whole. Dr. Goldberger completed a Physical Capacities Evaluation dated
October 28, 2014, in which he indicated that the claimant could not sit, stand or walk
longer than one hour in an eight-hour workday. He opined that the claimant could
lift and carry zero to five pounds frequently and five to ten pounds occasionally. Dr.
Goldberger indicated that the claimant could never bend, squat, crawl, or climb and
could occasionally reach above shoulder level. He noted that the claimant would
have moderate environmental restrictions. In the evaluation, Dr. Goldberger noted
that he based his opinion on a MRI. However, there was no updated MRI submitted
into the current medical record. He seemed to rely on a now 5 year old MRI, and
offered the same opinion he had previously. How could a Doctor base an opinion on
such outdated medical evidence? Furthermore, Dr. Goldberger stated that the
claimant “has cognitive issues secondary to medication.” Oddly, none of Dr.
Goldberger’s treatment notes during the alleged disability period indicate that the
claimant had cognitive problems or any side effects from medications.
R. 159.
The court finds that the Magistrate Judge did not err in finding that the ALJ’s conclusions
with regard to Dr. Goldberger’s opinion were supported by substantial evidence.

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B.

Objection Two: Inconsistent Findings Regarding Plaintiff’s Impairments
As noted on page 1, supra, the ALJ characterized Plaintiff’s myofascial pain as both a

“severe” impairment, R. at 149-50, and a “nonsevere” impairment, id. at 151. The Magistrate Judge
found that “[t]he ALJ’s discussion and analysis of the medical evidence and the extent of Plaintiff’s
pain is consistent and is not contradictory.” ECF No. 12, 12. The Magistrate Judge noted that “the
ALJ’s inclusion of myofascial pain syndrome as a ‘severe’ impairment in the heading of his Finding
of Fact number 3 would appear to be no more than a typographical error that certainly does not
warrant a reversal of this case.” Id. The Magistrate Judge concluded that “even if this court were
to find that the ALJ committed an error in her characterization of Plaintiff’s claim of myofascial
pain syndrome, it was harmless under the facts of this case because the ALJ considered all of
Plaintiff’s impairments as part of the sequential evaluation of Plaintiff’s claim.” Id. at 13. Plaintiff
objects to the Magistrate Judge’s determinations.
The ALJ found Plaintiff’s claims of degenerative disc disease and myofascial pain syndrome
would cause more than a minimal effect on Plaintiff’s ability to perform basic work activities, and,
as such, they are severe within the meaning of 20 C.F.R. § 404.1520(c). However, the ALJ also
observed that, according to Dr. Goldberger, Plaintiff had some tenderness in her outer thigh muscles
and muscles in the area from her hip to her buttocks, but never mentioned what trigger points were
involved, never performed tilt testing, or provided information as to the cause of the muscle pain.
R. at 150. The ALJ further noted that, according to Dr. Goldberger, Plaintiff had no weakness in
her extremities, and her strength was 5/5, including her legs. Id. at 151. The ALJ then found
Plaintiff’s myofascial pain syndrom to be non-severe. Id.
The ALJ then considered all Plaintiff’s medically determinable impairments to determine
whether Plaintiff meets or equals Listings. The ALJ considered Plaintiff’s myofascial pain
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syndrome as similar to fibromyalgia. Under SSR 12-2p, an applicant must provide objective
medical evidence to establish the presence of the medically determinable impairment of
fibromyalgia. When a person claims to experience fibromyalgia, the diagnosis must be supported
by “longitudinal records reflecting ongoing medical evaluation and treatment from acceptable
medical sources[.]” Id. The ALJ found that “the record shows several diagnosis of myofascial pain
syndrome, but there is no laboratory findings in the record to support the existence of such
condition. There is no evidence that Dr. Goldberger obtained updated imaging studies, conducted
laboratory tests, or administered tender point testing during physical examinations to support his
diagnosis of myofascial pain syndrome.” Id. at 152. The ALJ determined that Plaintiff’s myofascial
pain syndrome does not met or equal a listing. Id. The ALJ then considered whether Plaintiff had
an impairment or combination of impairments that met or medically equaled the severity of a listed
impairment, and found that the treatment notes did not support Dr. Goldberger’s diagnosis of
myofascial pain syndrome.
The court concludes that the ALJ intended to treat myofascial pain syndrome as a non-severe
impairment, and that the Magistrate Judge did not err in finding substantial assistance to support the
ALJ’s decision.

See Weber v. Massanari, 156 F. Supp. 2d 475 (E.D. Pa. 2001) (noting that

although the ALJ inconsistently described Plaintiff’s mental impairments as both “severe” and “nonsevere,” it is clear from a careful reading of the decision that the ALJ unequivocally found that
Plaintiff’s depression is a non-severe impairment); see also Henderson v. Colvin, No. C15-0081,
2016 WL 4599920, at *17 (N.D. Iowa 2016) (finding that the ALJ’s classification of Plaintiff’s
osteoarthritis both as a severe and non-severe impairment is a clear inconsistency, but a
typographical error when reviewing the ALJ’s decision as a whole).

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IV. CONCLUSION
After reviewing the entire record, the applicable law, the briefs of counsel, the Report and
Recommendation, and Plaintiff’s objections as well as Defendant’s reply, this court adopts the
Magistrate Judge’s Report and Recommendation and incorporates it herein by reference. For the
reasons set out hereinabove and in the Report and Recommendation, the Commissioner’s final
decision of no disability is AFFIRMED.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
September 5, 2018
Charleston, South Carolina

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