Erickson v. Commissioner of Social Security et al
Filing
17
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 16 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. ORDER granting 11 Plaintiff's Motion for Summary Judgment and denying 13 Defendant's Motion for Summary Judgment. It is further O RDERED that this case be REMANDED to the Commissioner for further action in accordance with this order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 6/24/15. (copy to counsel via CM/ECF) (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TERESA ANN ERICKSON,
Plaintiff,
v.
Civil Action No. 5:14CV74
(STAMP)
CAROLYN M. COLVIN,
Acting Commissioner
of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Procedural History
The plaintiff, Teresa Ann Erickson, filed an application for
Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act. In the application, the plaintiff alleged disability
since March 15, 2009 because of mucosa-associated lymphoid tissue
lymphoma (“MALT”), irritable bowel syndrome (“IBS”), fibromyalgia,
chronic fatigue syndrome, generalized anxiety disorder, major
depressive disorder, anxiety, carpal tunnel syndrome, rheumatoid
arthritis,
and
bursitis
in
the
hips.
The
Social
Security
Administration denied the plaintiff’s application initially and on
reconsideration.
The plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), and a hearing was held at which
the plaintiff was represented by counsel.
At the hearing, the plaintiff testified on her own behalf, as
did a vocational expert.
The ALJ issued a decision finding that
the plaintiff was not disabled under the Social Security Act.
The
plaintiff then timely filed an appeal of the decision to the
Appeals Council. The Appeals Council remanded the case for another
hearing before the ALJ. The Appeals Council directed the ALJ to do
the following: (1) reevaluate the treating source opinion from
Edward R. Shaman, M.D.; (2) further evaluate the plaintiff’s severe
impairments, specifically the plaintiff’s fibromyalgia and carpal
tunnel syndrome; (3) update the record as to the plaintiff’s
fibromyalgia, carpal tunnel syndrome, and IBS; and (4) further
evaluate
the
plaintiff’s
subjective
complaints
and
obtain
supplemental evidence from a vocational expert to clarify the
effect of assessed limitations on the plaintiff’s occupational
base.
At the second hearing, the plaintiff was again represented by
counsel.
The plaintiff again testified on her own behalf, as did
a different vocational expert.
The ALJ again issued a decision
finding that the plaintiff was not disabled under the Social
Security Act.
Council.
The plaintiff appealed the decision to the Appeals
The Appeals Council denied the plaintiff’s request for
review.
The plaintiff then filed a request for judicial review of the
ALJ’s decision in this Court.
States
Magistrate
proposed
findings
Judge
of
The case was referred to United
Robert
fact
and
W.
Trumble
for
recommendation
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submission
for
of
disposition
pursuant to 28 U.S.C. § 636(b)(1)(B).
Both the plaintiff and the
defendant filed motions for summary judgment.
After consideration
of those motions, the magistrate judge entered a report and
recommendation recommending that the defendant’s motion for summary
judgment be denied, the plaintiff’s motion for summary judgment be
granted, and that this action be remanded to the Commissioner for
further action.
Upon submitting his report, Magistrate Judge
Trumble 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 14 days after
being served with a copy of the report.
The magistrate judge
further informed the parties that failure to timely object would
result in a waiver of the right to appeal a judgment resulting from
the report and recommendation.
II.
Neither party filed objections.
Facts
The plaintiff is a single forty-four year old woman who has
four children.
Previously, the plaintiff was a homemaker but has
also worked as a waitress, baker/cook/server, as a server/worker
for hotel food service, and in retail sales.
The plaintiff has a
significant medical history relating to her physical impairments
starting in 2009 when she was diagnosed with MALT while living in
Minnesota.
Further, the plaintiff underwent numerous evaluations
related to her mental impairments.
The magistrate judge has set
forth a detailed history regarding both.
3
ECF No. 16 at 3-31.
In the second administrative hearing, the plaintiff testified
that since her diagnosis in 2009, she has not worked except for a
failed attempt in 2010 which was curtailed because she was unable
to keep a job as a waitress because of her alleged limitations.
The plaintiff further testified that her impairments make it
difficult to work as she has significant pain and swelling in her
hands, has to use the restroom frequently, and has to lie down
frequently because of the effect of her medications and her chronic
fatigue.
The vocational expert testified that the plaintiff was unable
to
perform
her
past
relevant
work.
However,
based
on
a
hypothetical provided by the ALJ, the vocational expert testified
that there would be jobs in the regional or national economy that
could be performed given the restrictions presented by the ALJ.
The plaintiff’s attorney then questioned the vocational expert,
adding restrictions to the ALJ’s hypothetical, and the vocational
expert found that if those limitations were considered, those jobs
previously mentioned would not exist.
Further
evidence
regarding
the
plaintiff’s
day-to-day
activities was also provided at the second administrative hearing.
This evidence shows that the plaintiff can perform some light
cooking, light chores, and short trips to complete errands.
The
plaintiff also testified that she goes without eating to ensure
that she does not have to use the restroom while completing
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errands.
Additionally,
two
letters
were
submitted
by
the
plaintiff’s long-time friend who described the plaintiff’s current
condition and the plaintiff’s 2010 employer who stated that the
plaintiff departed her job due to health related limitations.
The ALJ utilized the five-step evaluation process required by
the Social Security Administration in making his decision and
considering the evidence in this case.
The ALJ found that the
plaintiff has not engaged in substantial gainful activity since her
most recent application for SSI.
Further, the ALJ found that the
plaintiff had the following severe impairments: residual effect,
status post remote (2005) cervical spine fusion surgery at C2-4;
generalized osteoarthritis/question of fibromyalgia and chronic
fatigue; “mild” right carpal tunnel syndrome; IBS; MALT; question
of rheumatoid arthritis; major depressive/dysthymic disorder(s);
and generalized anxiety/posttraumatic stress disorder(s). However,
the ALJ found that the plaintiff’s impairments individually, or in
combination, did not meet the severity threshold required to
provide SSI.
The ALJ found that the plaintiff has the residual functional
capacity (“RFC”) to perform sedentary level work although she
cannot perform any “vocationally relevant” past work.
Given the
plaintiff’s RFC, age, level of education, and work experience, the
ALJ found that she remained capable to work as there were jobs that
exist in significant numbers within the national economy that she
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can perform.
Thus, the ALJ found that the plaintiff has not been
under a disability as defined in the Social Security Act.
In her motion for summary judgment, the plaintiff asserts that
the ALJ incorrectly considered and weighed the opinions of the
plaintiff’s treating physicians.
Further, the plaintiff argues
that the ALJ failed to comply with the Appeals Council’s June 1,
2012 remand order (“remand order”).
The defendant contends that
the ALJ’s decision is supported by substantial evidence and that
the
ALJ
followed
the
remand
order
and
the
Commissioner’s
regulations.
In reviewing the plaintiff’s argument regarding the ALJ’s
compliance with the remand order, the magistrate judge performed a
harmless error analysis in conformity with a recent United States
District Court for the Southern District of West Virginia opinion.
In applying the harmless error rule, the magistrate judge found
that the ALJ failed to comply with the remand order as to three of
the four Appeals Council directives. Further, the magistrate judge
found that the ALJ’s failure to comply with those directives
resulted in harm to the plaintiff as the ALJ’s decision was not
supported by substantial evidence.
As such, the magistrate judge
recommended that this action be remanded for further consideration
by the ALJ.
For the reasons that follow, this Court finds that the
magistrate judge’s report and recommendation should be affirmed and
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adopted.
Thus, the defendant’s motion for summary judgment should
be denied, the plaintiff’s motion for summary judgment should be
granted,
and
this
case
remanded
to
the
ALJ
for
further
consideration.
III.
Applicable Law
As there were no objections filed to the magistrate judge’s
recommendation, his findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
28 U.S.C.
§ 636(b)(1)(A). Additionally, because no party filed objections to
the report and recommendation, the parties waived their right to
appeal from a judgment of this Court based thereon. Thomas v. Arn,
474 U.S. 140, 148-53 (1985).
IV.
A.
Discussion
Application of the Harmless Error Rule
In the report and recommendation, the magistrate judge noted
that there is a split among federal courts as to whether the
failure to follow an Appeals Council’s remand order may serve as an
independent ground for reversal absent other error.
The Social
Security regulations state that the “administrative law judge shall
take any action that is ordered by the Appeals Council.” 20 C.F.R.
§ 404.977(b).
As the magistrate judge found, some courts have
interpreted this section as requiring remand if the directives are
not followed by the ALJ whereas other courts have found that an
inquiry regarding substantial evidence is still required.
7
See
Mortise v. Astrue, 713 F. Supp. 2d 111, 123 (N.D.N.Y. 2010); cf.
Huddleston v. Astrue, 826 F. Supp. 2d 942, 954 (S.D.W. Va. 2011).
The magistrate judge determined that a finding that the ALJ’s
decision was supported by substantial evidence is still required
even where the ALJ failed to follow the directives of a remand
order.
The magistrate judge thus completed a harmless error
analysis in conjunction with a review for substantial evidence
based on the Southern District of West Virginia’s application of
the harmless error rule in Huddleston.
Id.
This Court finds that the magistrate judge’s use of the
harmless error rule was not clearly erroneous or contrary to law as
there is a split among the courts at this time.
Further, in the
context of Social Security disability determinations, the United
States Court of Appeals for the Fourth Circuit has employed a
harmless error analysis. See Morgan v. Barnhart, 142 F. App’x 716,
722-23 (4th Cir. 2005) (unpublished); Bishop v. Barnhart, 78 F.
App’x 265, 268 (4th Cir. 2003) (unpublished).
As such, it was not
clear error for the magistrate judge to conduct a harmless error
analysis in this action.
B.
ALJ’s Noncompliance With the Remand Order
The magistrate judge found that the ALJ failed to follow the
remand order.
The ALJ did not follow the remand order directives
to give further consideration to the plaintiff’s diagnosis of
fibromyalgia, specifically, whether the condition was severe; to
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update the record concerning the plaintiff’s fibromyalgia; and to
further
consider
the
plaintiff’s
RFC
in
support
of
assessed
limitations evaluating the plaintiff’s treating source opinions.
A review of the remand order and the ALJ’s decision supports the
magistrate judge’s finding that the ALJ did not follow the remand
order directives and thus this Court finds that the magistrate
judge’s finding was not in clear error.
C.
Substantial Evidence Threshold
The magistrate judge found that the ALJ’s decision was not
supported by substantial evidence and thus the ALJ’s failure to
consider the directives set forth in the remand order was not
harmless error.
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)).
The ALJ is required to
consider all relevant evidence and probative exhibits.
Secretary, 567 F.2d 258, 259 (4th Cir. 1977).
Arnold v.
A court “cannot
determine if findings are supported by substantial evidence unless
the [ALJ] explicitly indicates the weight given to all of the
relevant evidence.”
Gordon v. Scweiker, 725 F.2d 231, 235 (4th
Cir. 1984).
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1.
Fibromyalgia
The
ALJ
found
that
the
plaintiff’s
treating
physicians’
fibromyalgia diagnoses were questionable and thus rejected them.
However, the magistrate judge found that the ALJ failed to address
other evidence that contradicted that finding, specifically, a 2010
fibromyalgia diagnosis by the Mayo Clinic.
The magistrate judge
also found that the fact that a nurse practitioner conducted the
fibromyalgia evaluation at the Mayo Clinic, despite the defendant’s
argument otherwise, does not explain the ALJ’s failure to consider
the
report
as
Additionally,
the
the
ALJ
did
magistrate
not
provide
judge
such
correctly
an
explanation.
noted
that
such
evidence, even if not conducted by an approved medical provider,
may still be used to help evaluate the severity of a person’s
condition.
This Court agrees with the magistrate judge that the ALJ is to
consider and discuss all relevant evidence, especially when the
remand order focused on such evidence and specifically mentioned
the consideration of the plaintiff’s fibromyalgia claim in its
directives. Thus, the magistrate judge’s finding that it cannot be
determined whether the ALJ’s decision was supported by substantial
evidence as to the reliability of the plaintiff’s fibromyalgia
diagnosis is not clearly erroneous.
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2.
Plaintiff’s RFC Assessment
The magistrate judge found that it was unclear whether or to
what extent the ALJ considered the plaintiff’s fibromyalgia in
formulating his RFC.
Again, the ALJ was required to consider all
relevant evidence to assess the plaintiff’s RFC.
§§ 404.1545(a)(1); 416.945(a)(1).
20 C.F.R.
Further, the magistrate judge
found that it was unclear to what extent the plaintiff’s carpal
tunnel syndrome was considered.
The magistrate judge reviewed the
various medical records available in this action regarding the
plaintiff’s carpal tunnel syndrome and noted the failure of the ALJ
to discuss a majority of that evidence. Thus, the magistrate judge
found
that
the
ALJ’s
substantial evidence.
RFC
assessment
was
not
supported
by
Based on a review of the record, this Court
finds that such a finding was not made in clear error.
3.
Evaluation of Treating Source Opinions
The ALJ assigned the opinion of the plaintiff’s treating
physician, Dr. Shaman, little weight because he found that it was
inconsistent with the evidence and was based on the plaintiff’s
subjective complaints.
The magistrate judge found that this
finding was not supported by substantial evidence.
The magistrate
judge found that the ALJ failed to support his analysis with the
evidence in the record. For instance, the ALJ had noted that there
was no evidence that the plaintiff needed to lie down more than
four of every eight hours and thus discredited Dr. Shaman’s report.
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However, the magistrate judge and this Court reviewed the evidence
and no such specific recommendation is included in Dr. Shaman’s
opinion.
Additionally, contrary to the ALJ’s finding, there is
significant evidence that Dr. Shaman conducted several objective
tests and examinations that did not rely on the plaintiff’s
subjective complaints.
Moreover, the magistrate judge is correct in finding that the
ALJ failed to properly consider the other treating and agency
sources.
The ALJ failed to provide full explanations and instead
provided superficial reasons for finding that one medical source
should be given more weight than another.
As such, this Court
agrees with the magistrate judge that the ALJ’s evaluation of the
treating sources in this case was not supported by substantial
evidence and thus the magistrate judge’s decision was not in clear
error.
V.
Conclusion
For the reasons set forth above, this Court finds that the
magistrate judge’s recommendation is not clearly erroneous and
hereby AFFIRMS and ADOPTS the report and recommendation of the
magistrate judge.
DENIED.
It
is
The defendant’s motion for summary judgment is
The plaintiff’s motion for summary judgment is GRANTED.
further
ORDERED
that
this
case
be
REMANDED
to
Commissioner for further action in accordance with this order.
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the
As such, on remand, the Commissioner is DIRECTED to review and
follow the directives of the Appeals Council’s June 1, 2012 remand
order.
The Commissioner should give further consideration to all
evidence
relevant
to
the
plaintiff’s
fibromyalgia
diagnosis,
including the August 10, 2010 Mayo Clinic evaluation, with specific
consideration to whether it is a medically determinable impairment
and if so, whether such impairment is severe.
The Commissioner
should also further consider the plaintiff’s residual functional
capacity
in
light
of
the
assessed
limitations,
including
limitations associated with the plaintiff’s fibromyalgia, carpal
tunnel syndrome, and irritable bowel syndrome.
Additionally, the
Commissioner should further consider and weigh all medical opinions
contained in the record pursuant to 20 C.F.R. § 416.927 and SSRs
96-2p and 96-5p.
Finally, the Commissioner should reassess the
plaintiff’s credibility in light of the entire record.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the petitioner has failed to
object, he has waived his right to seek appellate review of this
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
IT IS SO ORDERED.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
June 24, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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