Davis v. Commissioner of Social Security

Filing 16

MEMORANDUM OPINION AND ORDER Affirming And Adopting 13 Report And Recommenation of Magistrate Judge; granting Pla's 9 Motion for Summary Judgment by REMAND; denying Dft's 11 Motion for Summary Judgment. This case is DISMISSED and STRICKEN from the active docket. Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 7/28/11. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID J. DAVIS,
Plaintiff,
v.

Civil Action No. 5:10CV72
(STAMP)

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

The plaintiff, David J. Davis, filed an application for
Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act on March 22, 2007.

In his application, the plaintiff

alleges disability beginning August 28, 2005 due to an injury to
his right hand, deafness in his left ear, limited hearing abilities
in his right ear, restless legs, knee pain, and hypertension.
The Social Security Administration denied the plaintiff’s
application

initially

and

on

reconsideration.

The

plaintiff

requested a hearing, and a hearing was held on November 13, 2008,
before

an

administrative

law

judge

(“ALJ”).

The

plaintiff,

represented by a non-attorney representative,1 testified on his own
behalf, as did a vocational expert (“VE”).
1

On January 26, 2009,

Title 20, Code of Federal Regulations, Section 404.1705(b)
provides that a person other than an attorney may serve as a
representative.

the ALJ issued a decision finding that the plaintiff was capable of
a reduced range of light exertional work.

The Appeals Council

denied the plaintiff’s request for review, rendering the ALJ’s
decision final.
The case was referred to United States Magistrate Judge John
S.

Kaull

for

recommendation

submission
for

of

proposed

disposition

findings

pursuant

of

to

fact

28

and

U.S.C.

§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions
for summary judgment.2

On June 22, 2011, the magistrate judge

issued

recommendation

a

report

defendant’s

and

motion

for

summary

recommending

judgment

be

that

the

and

the

denied

plaintiff’s motion for summary judgment be granted by a remand of
this

matter

to

the

Commissioner

for

further

action.

Upon

submitting his report, Magistrate Judge Kaull informed the parties
that if they objected to any portion of his proposed findings of
fact and recommendation for disposition, they must file written
objections within fourteen (14) days after being served with a copy
of the report. The defendant filed timely objections, to which the
plaintiff responded.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

2

of

the

magistrate

judge’s

In these appeal proceedings, in which the plaintiff seeks
review of the final decision of the Commissioner pursuant to 42
U.S.C. § 405(g), the plaintiff was represented by counsel.
2

recommendation to which objection is timely made.

As to those

portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
Supp.

825

(E.D.

Cal.

1979).

See Webb v. Califano, 458 F.

Because

the

defendant

filed

objections, this Court will undertake a de novo review as to those
portions of the report and recommendation to which objections were
made.
III.

Discussion

In his motion for summary judgment, the plaintiff alleges that
the

Commissioner’s

decision

is

not

supported

by

substantial

evidence because the VE’s testimony, in total, shows that the
plaintiff

cannot

perform

substantial

gainful

activity.

The

plaintiff further argues that the ALJ failed to develop the record
concerning the plaintiff’s depression.
The Commissioner asserts the following in his motion for
summary judgment: (1) the plaintiff failed to demonstrate that the
ALJ was biased; (2) the ALJ’s credibility findings are supported by
substantial evidence; (3) the ALJ properly relied on the VE’s
testimony in finding the plaintiff not disabled; and (4) the ALJ
properly developed the record.
Magistrate Judge Kaull issued a report and recommendation in
which he found that substantial evidence does not support the ALJ’s
determination

that

the

plaintiff’s

3

statements

regarding

his

impairments and his ability to function are not entirely credible.
Specifically, Magistrate Judge Kaull found that the ALJ failed to
discuss: (1) the plaintiff’s second surgery and continuous physical
therapy; (2) pain as a residual effect of the plaintiff’s injury;
and (3) the diagnosis of Dr. Currence, the plaintiff’s treating
physician.

Further, the magistrate judge found no evidence that

the plaintiff was malingering or attempting to get benefits that he
did not earn.

The magistrate judge notes that, in fact, the State

agency reviewing physicians found that the plaintiff’s complaints
regarding his symptoms were credible.
Next, the magistrate judge found that the ALJ failed to
mention the plaintiff’s mental impairments, which were diagnosed by
his long-term treating physician.

Thus, the magistrate judge

concluded that substantial evidence does not support the ALJ’s step
two finding regarding the plaintiff’s impairments.

According to

the magistrate judge, it follows that substantial evidence does not
support the ALJ’s findings at steps three, four, and five, and his
ultimate conclusion that the plaintiff was not disabled at any time
relevant to this claim.
Thereafter, the defendant filed objections to the magistrate
judge’s report and recommendation.

First, the defendant argues

that the magistrate judge erroneously substituted his opinion in
finding that the ALJ’s credibility analysis was not supported by
substantial evidence.

Specifically, the defendant contends that

4

the ALJ did not discount the plaintiff’s allegations of pain and
symptoms.

The defendant also argues that the ALJ considered the

objective

medical

evidence

and

the

plaintiff’s

response

to

treatment in his credibility analysis. Third, the defendant claims
that the magistrate judge re-weighed the evidence, despite the fact
that the ALJ thoroughly explained his credibility analysis which
was based on substantial medical evidence.
The defendant also argues that the ALJ properly found that the
plaintiff did not have a severe mental impairment at step two of
the sequential evaluation process. According to the defendant, the
plaintiff

did

not

meet

his

burden

of

proving

disability.

Specifically, the plaintiff did not identify any mental impairments
in any of his disability application materials, nor did he ever
mention depression as an impairment.

Because the only indication

of the plaintiff’s alleged depression in the record are handwritten
treatment

notes

from

Dr.

Currence,

establish a mental impairment.

the

plaintiff

failed

to

Further, the May 28, 2009 letter

from the plaintiff to the Appeals Council stating that he was
depressed was submitted after the record had closed and should
therefore, not be considered by this Court.

Thus, the defendant

contends that the ALJ correctly did not find a severe mental
impairment and had no further duty to develop the record.
In his response to the defendant’s objections, the plaintiff
argues that the ALJ was required to complete a Psychiatric Review

5

Technique

Form

(“PRTF”)

and

append

it

to

his

decision

or

incorporate its mode of analysis into his findings and conclusions.
Because he failed to do so, the plaintiff contends that remand is
necessary.

Again, the plaintiff highlights the fact that the ALJ

did not discuss the opinions of Dr. Currence, the plaintiff’s
treating physician.
An ALJ’s findings will be upheld if supported by substantial
evidence.

See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528

(4th Cir. 1998). Substantial evidence is that which a “‘reasonable
mind might accept as adequate to support a conclusion.’”

Hays v.

Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).

Further, the “‘possibility

of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by
substantial evidence.’”

Sec’y of Labor v. Mutual Mining, Inc., 80

F.3d 110, 113 (4th Cir. 1996) (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)).
This Court turns first to the magistrate judge’s findings
regarding ALJ bias, pain, and credibility.

When analyzing claims

of bias against an ALJ, this Court must presume that the ALJ is
unbiased.

See Schweiker v. McClure, 456 U.S. 188, 195 (1982).

This presumption can be rebutted by showing that the ALJ “displayed
deep-seated and unequivocal antagonism that would render fair
judgment impossible.”

Liteky v.

United States, 510 U.S. 540, 556

6

(1994).

After reviewing the record, this Court agrees that the

plaintiff has failed to establish that the ALJ was biased against
him.

The ALJ’s statements regarding the plaintiff’s workers’

compensation

case

do

not,

as

the

plaintiff

suggests,

reveal

prejudice or bias against workers’ compensation claimants. Because
the plaintiff has failed to show a conflict of interest or other
reason for disqualification, he has failed to rebut the presumption
that the ALJ was unbiased.
With regard to the ALJ’s credibility analysis, this Court
agrees

with

evidence

the

does

magistrate

not

support

judge
the

and

ALJ’s

finds

that

substantial

determination

that

the

plaintiff’s statements regarding his impairments and his ability to
function are not entirely credible.

The evidence in the record

supports the magistrate judge’s conclusion that the plaintiff tried
his best to regain the use of his dominant hand by undergoing
numerous painful procedures and lengthy physical therapy.

The

plaintiff makes it clear that his goal was to return to his job of
twenty-two

(22)

years,

but

his

permanent

impairment

made

it

impossible for him to do so.
In his objections to the report and recommendation, the
defendant argues that the ALJ meaningfully discussed the evidence
in the record as it related to the credibility analysis.

This

Court acknowledges that the ALJ did consider the plaintiff’s
activities of daily living and some objective medical evidence, but

7

agrees with the magistrate judge that the ALJ’s decision omits
important evidence.

Specifically, the ALJ does not provide any

evidence to support his determination that the plaintiff’s pain is
adequately relieved by medication.

In fact, the ALJ does not

discuss the diagnosis of Dr. Currence, the plaintiff’s treating
physician, who in February of 2008 determined that the plaintiff
still had chronic pain in his right hand.

Moreover, the ALJ’s

opinion omits any mention of the plaintiff’s second surgery and
continuous physical therapy for almost a year and a half. Further,
there is no indication that the State Agency physicians found the
plaintiff’s complaints regarding his symptoms to be anything other
than credible. While this Court agrees with the defendant that the
ALJ is not required to use a particular format in conducting his
analysis, the ALJ must sufficiently develop the record and explain
his findings to permit meaningful review.
364 F.3d 501, 505 (3d Cir. 2004).

See Jones v. Barnhart,

As explained above, this Court

finds that the ALJ has offered inadequate support for his finding
that the plaintiff is not entirely credible.
In his report and recommendation, the magistrate judge also
found that because the ALJ failed to mention the plaintiff’s mental
impairment, substantial evidence does not support the conclusion
that the plaintiff was not disabled at any time.

According to the

defendant, the plaintiff did not identify any mental impairments in
any of his disability application materials, nor did he mention

8

depression

as

an

impairment

during

the

hearing.

Thus,

the

defendant contends that the plaintiff has failed to meet his burden
of establishing a mental impairment.

See 20 C.F.R. § 404.1512(a)

(“In general, you have to prove to us that you are blind or
disabled.

Therefore, you must bring to our attention everything

that shows that you are blind or disabled.

This means that you

must furnish medical and other evidence that we can use to reach
conclusions about your medical impairment(s) . . . . We will
consider only impairment(s) you say you have or about which we
receive evidence.”).
This Court recognizes that it is the claimant’s responsibility
to prove that he is disabled.

Although the plaintiff did not

mention depression specifically at the hearing, he did state that
he has a hard time sleeping and that he worries “about everything
and anything.” (R. 33.) Additionally, there are multiple documents
in the record that contain references to or allude to depression.
In his function report, the plaintiff states that he worries a lot
and cannot sleep.

(R. 134.)

He writes that he is short and angry

with his family.

(R. 138.)

Also, the plaintiff states that he

handles stress by going into his room and putting a pillow over his
head.

(R. 139.)

In response to the question regarding changes in

routine, the plaintiff writes that he handles these with anger.
(R. 139.)

In a letter dated May 28, 2009, the plaintiff claims

that he has been very depressed since the accident and that he sits

9

and cries from pain and frustration.3

(R. 166.)

A progress note

from June 26, 2007 reveals that the plaintiff complained of
depression and was prescribed an antidepressant by Dr. Currence.
(R. 664-65.)

Finally, a progress note dated February 7, 2008

states that the plaintiff’s depression has improved.

(R. 666.)

Despite the existence of these documents, the ALJ did not question
the plaintiff about his mental health at the hearing or reference
the mental impairment in his decision.

Although the plaintiff did

not claim disability on the basis of any psychiatric condition in
his original application for benefits, “the failure to raise the
issue

during

the

administrative

agency

foreclose consideration of the issue now.”

proceedings

does

not

Calcek v. Comm’r of

Soc. Sec., No. 3:CV-01-1664, 2003 WL 21911069, at *5 (M.D. Pa. July
31, 2003) (citing Sims v. Apfel, 530 U.S. 103 (2000)).

“The more

pertinent question . . . is whether the ALJ had an obligation to
complete the [PRTF].”

Id.

The Third Circuit has observed:

The ALJ cannot ignore evidence of a mental impairment in
the record . . . . When there is evidence of a mental
impairment that allegedly prevents a claimant from
working, the Commissioner must follow the procedure for
evaluating mental impairments set forth in 20 C.F.R.
§ 404.1520a.
Calcek, 2003 WL 21911069, at *6 (citing Plummer v. Apfel, 186 F.3d
422, 432-33 (3d Cir. 1999)).

3

This letter was submitted only after the initial
reconsideration stages of the plaintiff’s application.
10

and

In this case, the evidence was sufficient to place the ALJ on
notice that depression compromised the plaintiff’s vocational
abilities.

By failing to consider the numerous indications of the

plaintiff’s depression, the ALJ neglected to resolve a crucial
issue.

See also Prentice v. Apfel, 11 F. Supp. 2d 420, 426 (S.D.

N.Y. 1998) (“[T]he fact that plaintiff did not cite depression as
a basis for disability is not dispositive of the issue of whether
[the ALJ] had a duty to investigate the possibility that plaintiff
was disabled by a mental impairment.”).

“Where the claimant has

presented a colorable claim of mental impairment, as here, the
failure to incorporate the special technique [as described in 20
C.F.R. § 404.1520a(b)-(e)] into the ALJ’s decision warrants remand
for further proceedings.”

Sparrow v. Astrue, No. 4:09-CV-143-D,

2010 WL 2910013 (E.D. N.C. June 28, 2010); see also White v.
Barnhart, 321 F. Supp. 3d 800, 804 (N.D. W. Va. 2004) (holding that
because the record contains substantial evidence indicating the
claimant

suffered

agoraphobia,

the

from
ALJ

anxiety

should

and

have

panic

ordered

disorders
a

with

psychological

examination and further developed the record with respect to the
possibility of a mental impairment prior to rendering a decision).
Accordingly, this Court agrees that remand is warranted.
In his objections, the defendant focuses on the fact that the
plaintiff has not shown that he suffers from a severe mental
impairment.

This

Court,

however,

11

will

not

assume

that

the

plaintiff’s depression is too minor to have an affect on the ALJ’s
decision.

“The determination as to the severity and effect of an

impairment is to be made by the ALJ rather than by a court on
judicial review.”

Graves v. Astrue, No. 2:07CV306, 2008 WL

4093726, at *4 (S.D. Miss. Aug. 27, 2008).
Significantly, the plaintiff in this case was represented by
a

non-attorney

representative.

Title

20,

Code

of

Federal

Regulations, Section 404.1705 permits a person other than an
attorney to serve as a representative, but some courts have held
that when a claimant is not represented by counsel, the ALJ “is
under a heightened duty to scrupulously and conscientiously explore
all relevant facts.”

Castillo v. Barnhart,

325 F.3d 550, 552-53

(5th Cir. 2003); Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996).
According to the Fifth Circuit, this heightened duty to develop the
record exists even when the claimant is represented by a nonattorney representative.

McNeil v. Astrue, No. H-07-3664, 2009 WL

890553, at *12 (S.D. Tex. March 31, 2009).

Other courts have held

that “[a]n ALJ does not have a special duty to develop the record
when a Social Security claimant chooses to be represented by a nonattorney representative.”

Nichols v. Comm’r of Soc. Sec., No.

1:09-cv-1091, 2010 WL 5178069, at *6 (W.D. Mich. Nov. 18, 2010)
(citing Kidd v. Comm’r of Soc. Sec., 283 F. App’x 336, 344-45 (6th
Cir. 2008)).

In this case, the ALJ failed to explore all of the

relevant facts regarding the plaintiff’s depression.

12

Even if the

presence

of

a

non-attorney

representative

does

not

place

a

heightened burden on the ALJ, this Court finds that the ALJ did not
meet his basic obligation to develop and full and fair record.
This Court has reviewed the record, as well as the parties’
motions for summary judgment, and for the reasons set forth in the
report and recommendation, concurs with the magistrate judge that
the Commissioner’s decision denying the plaintiff’s application for
DIB is not supported by substantial evidence.

Accordingly, the

magistrate

is

judge’s

report

and

recommendation

affirmed

and

adopted.
IV.

Conclusion

Based upon a de novo review, this Court hereby AFFIRMS and
ADOPTS the magistrate judge’s report and recommendation in its
entirety.

Thus, for the reasons stated above, the defendant’s

motion for summary judgment is DENIED and the plaintiff’s motion
for summary judgment is GRANTED by a REMAND of this matter to the
Commissioner for further action in accordance with the report and
recommendation of the magistrate judge and this opinion.

It is

further ORDERED that this case be DISMISSED and STRICKEN from the
active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal

13

Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

July 28, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

14