Davis v. Commissioner of Social Security

Filing 15

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 14 THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE. Plaintiff's 9 motion for summary judgment is GRANTED IN PART and the defendant's 11 motion for summary judgment is DENIED. It is further ORDERED that this case be REMANDED to the Commissioner for further action. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Because the defendant has failed to object, she has waived her right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 1/7/2015. (copy to counsel of record via CM/ECF) (nmm)

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

Civil Action No. 5:14CV83
(STAMP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I.
The

plaintiff

seeks

Background
judicial

review

of

the

defendant’s

decision to deny her claims for both supplemental security income
(“SSI”) and disability insurance benefits (“DIB”). The plaintiff
applied for SSI and DIB in 2010, claiming she was disabled since
2008. The plaintiff points to her bipolar disorder and her chronic
hepatitis C as her disability. Further, she maintains other health
maladies

and

symptoms,

which

are

attributed

to

her

mental

disorders. Those include the following: (1) suicide attempts, (2)
drug abuse, (3) hyper-anxiety, (4) anger management issues, (5)
severe insomnia, (6) severe weight loss (7) physical pains, (8)
perpetual fatigue, and (9) depression. Her doctor prescribed a
series of medications for treatment, all of which failed to resolve
her medical issues. Further, as a result of the mental disorders
and their symptoms, the plaintiff has been unable to maintain
steady employment because of her alleged disability, and also lost

custody of her son. Following her initial application for benefits,
the state agency first denied the plaintiff’s application both
initially and on reconsideration. After the state agency’s denial,
the plaintiff sought a hearing before Administrative Law Judge
(“ALJ”) Kim Nagle in 2012. The ALJ held that the plaintiff was not
disabled, and the Appeals Council denied the plaintiff’s request
for review of the ALJ’s decision.
The ALJ used a five step evaluation process pursuant to 20 CFR
§§ 404.1420 and 416.920. Using that process, the ALJ made the
following findings: (1) the plaintiff satisfied the insured status
requirements of the Social Security Act; (2) the plaintiff did not
engage

in

plaintiff

substantial
suffered

gainful

from

activity

severe

since

impairments,

2008;

(3)

including

the
mood

disorder, anxiety disorder, personality disorder, and polysubstance
abuse disorder; (4) the plaintiff did not have an impairment that
satisfied the severity requirement; and (5) that the plaintiff has
a functional capacity to perform work at the “medium exertional
level.” Therefore, the ALJ found that the plaintiff did not have a
disability as defined under the Social Security Act.
The plaintiff and the defendant then filed motions for summary
judgment (ECF Nos. 9 and 11, respectively). The plaintiff argues
that the ALJ failed to fully evaluate all of her impairments and
mischaracterized

the

record

when

addressing

the

plaintiff’s

credibility. Further, the plaintiff claims that the ALJ “used

2

evidence from [the plaintiff’s] prior claim without addressing any
re-opening issues.” As such, the plaintiff argues that her case
must be remanded. In the defendant’s motion for summary judgment,
the defendant claims that substantial evidence supported all of the
ALJ’s findings, including the credibility of the plaintiff and the
weighing of medical opinions. The plaintiff filed a reply (ECF No.
13) to the defendant’s motion for summary judgment, wherein she
restates the same arguments and attempts to discredit the argument
that substantial evidence supported the ALJ’s decision.
The

magistrate

judge

then

entered

his

report

and

recommendation, to which neither party filed objections. ECF No.
14. The magistrate judge recommended that this Court deny the
defendant’s

motion

for

summary

judgment,

grant

in

part

the

plaintiff’s motion for summary judgment, and accordingly remand
this civil action. More specifically, the magistrate judge first
found no error by the ALJ in finding that the plaintiff’s alleged
bipolar disorder and post-traumatic stress disorder (“PTSD”) were
not “severe impairments” of a mood disorder. The magistrate judge
determined that regarding the PTSD claim, the plaintiff did not
initially allege disability due to PTSD, and so the ALJ never
considered it. Nonetheless, the magistrate judge noted that the ALJ
continued through the entire five step analysis, and considered all
of the plaintiff’s impairments. Because of this, the magistrate
judge

found

no

error

in

the

ALJ’s

3

determination

that

the

plaintiff’s

PTSD

and

bipolar

disorder

failed

to

satisfy

the

severity requirement.
However, the magistrate judge did find error regarding the
ALJ’s assessment of the plaintiff’s credibility. In the report and
recommendation, the magistrate judge cited the two step process for
determining whether a person is disabled by pain or other symptoms
found

in

Craig

v.

Chater,

76

F.3d

585

(4th

Cir.

1996).

Specifically, the magistrate judge referred to the two step process
where an ALJ examines the objective medical evidence and then the
subjective evidence, which is often provided by a claimant’s
testimony of the intensity and persistence of any pain and its
effect

on

one’s

occupation.

The

parties

do

not

dispute

the

objective analysis prong.1
Regarding the second or “subjective” prong, the magistrate
judge

found

that

the

ALJ

erred

in

assessing

the

intensity,

persistence, and limiting effects of the plaintiff’s symptoms.
Specifically, the ALJ provided that the plaintiff was consistently
assessed to have a Global Assessment of Functioning (“GAF”)between
50 and 60. However, the magistrate judge found that the record

1

The magistrate judge also indicated that the plaintiff made
two arguments in her reply that she did not make in her opening
brief, which means she waived her challenge to those issues. Those
two arguments were that: (1) the ALJ mischaracterized the impact of
the plaintiff’s maladies on her daily activities, and (2) the ALJ’s
finding that plaintiff earned income from working between 1997 to
2010 mischaracterized the impact of the disability on her
occupational capacity.
4

actually showed that the plaintiff’s GAF score generally was a 50,
with few exceptions. This indicates that the plaintiff had either
serious symptoms or serious impairments in social, occupational, or
school functioning. Because of this, the magistrate judge found
that the ALJ’s considerations of intensity and such were not based
on substantial evidence. The magistrate judge also found error in
the ALJ’s drawing of inferences about the plaintiff’s symptoms from
failure to seek medical treatment without first considering the
plaintiff’s explanations. The plaintiff had several intermittent
periods where she stopped treatment for her disabilities, such as
failing to take certain medications. However, under Social Security
Ruling (“SSR”) 96-7p, an ALJ must first inquire about why a
potential claimant failed to seek or continue medical treatment for
the disabilities before drawing inferences about a claimant’s
symptoms and their functional effects. Here, the magistrate judge
found that the ALJ erred because the ALJ never questioned the
plaintiff as to why she had long periods of time where she failed
to comply with her prescribed treatment. Therefore, the magistrate
judge found that substantial evidence did not support the ALJ’s
credibility determination.
Finally, the magistrate judge found error in the ALJ’s use of
Dr. William S. Thomas and Dr. Tony Goudy’s medical opinions.
Because of the overall error found in determining the plaintiff’s
credibility, the magistrate judge found that the ALJ gave too

5

little weight to Dr. Thomas’s opinion

regarding the plaintiff.

Specifically, the magistrate judge determined that the ALJ’s error
in determining the plaintiff’s credibility influenced her analysis
of Dr. Thomas’s opinion, and thus substantial evidence did not
support the ALJ’s finding to give Dr. Thomas’s opinion “little
weight” as the ALJ said was warranted. Further, regarding Dr.
Goudy’s opinion, that opinion contains new and material evidence
that requires the civil action to be remanded. The magistrate judge
also indicated that Dr. Goudy’s opinion was not before the ALJ at
the time of the decision. In accordance with the information
presented

above,

the

magistrate

judge

found

that

substantial

evidence did not support the defendant’s denial of the plaintiff’s
application

for

SSI

and

DIB.

Thus,

he

determined

that

the

defendant’s motion for summary judgment should be denied, the
plaintiff’s motion for summary judgment should be granted in part,
and that the civil action should be remanded and decided in line
with the report and recommendation. The parties did not file any
objections to the report and recommendation. For the reasons set
forth below, the magistrate judge’s report and recommendation is
affirmed and adopted.
II.

Applicable Law

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

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

6

judge’s

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.
III.

Discussion

As the United States Court of Appeals for the Fourth Circuit
has held, “Under the Social Security Act, [a reviewing court] must
uphold the factual findings of the Secretary if they are supported
by substantial evidence and were reached through application of the
correct legal standard.”
Cir. 1996).

Craig v. Chater, 76 F.3d 585, 589 (4th

“Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Id.

A

reviewing

court

“does

not

reweigh

evidence

or

make

credibility determinations in evaluating whether a decision is
supported by substantial evidence; ‘[w]here conflicting evidence
allows reasonable minds to differ,’ we defer to the Commissioner’s
decision.”

Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir.

2011) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)).

Further, as the Supreme Court of the United States stated

in U.S. v. U.S. Gypsum Co., “a finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” 333 U.S. 364, 395. After
reviewing the record before this Court, no clearly erroneous
findings exist.

7

A. Plaintiff’s Credibility Assessment
As stated earlier, the magistrate judge first found that the
ALJ erred in assessing the credibility of the plaintiff. In
particular, the ALJ determined that the plaintiff’s GAF score was
consistently assessed within the 50 to 60 range. However, as the
magistrate judge correctly determined, the plaintiff’s GAF score
was almost consistently assessed to be a 50, subject to a few
exceptions. See ECF Nos. 7 and 14. A consistent assessment of 50
means

that

the

plaintiff

suffers

from

serious

symptoms

or

impairments in social, occupational, or school functioning. Based
on the record, this Court agrees with the magistrate judge’s
determination regarding the plaintiff’s GAF score. The record shows
that the plaintiff’s GAF score aligns with the magistrate judge’s
findings. Accordingly, the ALJ erred interpreting the plaintiff’s
GAF score.
Regarding the ALJ’s assessment of the plaintiff’s credibility,
the magistrate judge also found that the ALJ failed to seek an
explanation by the plaintiff about her alleged noncompliance with
her medical treatment. Under SSR 96-7p, the ALJ

may not “draw any

inferences about an individual's symptoms and their functional
effects from a failure to seek or pursue regular medical treatment
without first considering any explanations that the individual may
provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical

8

treatment.” Despite that requirement, the ALJ did not adhere to it.
The record shows that the ALJ questioned the plaintiff about her
failure to comply with her prescribed medical treatments. However,
the ALJ did not ask the plaintiff about why she failed to comply.
Further, the magistrate judge correctly determined the plaintiff
maintained several explanations as to why she did not take her
medications, which were not discussed at the ALJ hearing. Those
explanations ranged from her medications being stolen to her
inability to pay for the medications. Whether those explanations
are valid or not is immaterial at this stage. What is material,
however, is that the ALJ needed to seek an explanation from the
plaintiff

as

to

why

she

did

not

comply

with

her

prescribed

treatments. Therefore, the magistrate judge correctly determine
that the ALJ erred by failing to seek an explanation from the
plaintiff. Thus, substantial evidence does not support the ALJ’s
credibility determination.
B. Medical Opinions of Dr. Thomas and Dr. Goudy
Finally, the report and recommendation indicates that the ALJ
erred in her assessment of Dr. Thomas’s opinion. Further, the
magistrate judge also found that the medical opinion of Dr. Goudy,
which the ALJ did not have before it at that time, requires the
remand of this civil action so that Dr. Goudy’s opinion can be
considered by the ALJ. Regarding the ALJ’s assessment of Dr.
Thomas’s opinion, the magistrate judge found that the ALJ’s error

9

in assessing the plaintiff’s credibility influenced her analysis of
Dr.

Thomas’s

opinion.

In

particular,

the

ALJ

discussed

the

plaintiff’s noncompliance with her medications and Dr. Thomas’s
medical opinion, finding that “the persuasiveness of [Dr. Thomas’s]
opinion is further diminished by its failure to acknowledge or
account for the claimant’s intermittent but repeated episodes of
noncompliance with the medications.” ECF No. 7 *33. As both the
magistrate judge and this Court determined earlier, the ALJ failed
to properly determine the plaintiff’s credibility. In accordance
with that finding, the ALJ also incorrectly assessed Dr. Thomas’s
medical opinion because she relied on her incorrect credibility
determination when discussing that medical opinion. Thus, this
Court agrees with the magistrate judge’s determination of error
regarding the discrediting of Dr. Thomas’s medical opinion.
Concerning the opinion of Dr. Goudy, the magistrate judge
construed the plaintiff’s argument as being that the Appeals
Council erred by failing to remand her case to the ALJ for
consideration of Dr. Goudy’s opinion. As mentioned earlier, the ALJ
did not have Dr. Goudy’s opinion at the time of the hearing. The
magistrate

judge

correctly

requesting

review

evidence.

20 C.F.R. § 41.1470(b).

by

the

noted
Appeals

that

a

claimant

Council,

submit

may,

when

additional

If that is the case, the

Appeals Council must consider such evidence submitted with a
request for review “if the additional evidence is (a) new, (b)

10

material, and (c) relates to the period on or before the date of
the ALJ’s decision.”

Wilkins v. Sec’y, Dep’t of Health and Human

Services, 953 F.2d 93, 95-96 (4th Cir. 1991) (internal citations
omitted).

“New”

evidence

means

that

Id. at 96.

duplicative or cumulative.

the

evidence

is

not

In addition, “material”

evidence means that a reasonable possibility exists that “the new
evidence would have changed the outcome.”

Id.

As the magistrate judge correctly determined, Dr. Goudy’s
report

aligned

with

Dr.

Thomas’s

report.

Dr.

Goudy’s

report

confirmed that the suffered from a host of mental illnesses, that
as a result the plaintiff was impaired. More importantly, the
magistrate judge correctly determined that Dr. Goudy’s report is
new

evidence

under

Wilkin.

Here,

Dr.

Goudy’s

report

clearly

contradicts the ALJ’s findings, thus demonstrating that the report
is new. Further, Dr. Goudy’s report is material because it further
supports the plaintiff’s credibility. The magistrate judge also
correctly determined that Dr. Goudy’s report sufficiently “relates
to the period on or before date of the ALJ’s decision,” as required
under Wilkin. In particular, this Court agrees with the magistrate
judge’s finding that Dr. Goudy’s report, although issued three to
four months after the ALJ’s decision, reinforces assertions already
made in Dr. Thomas’s report. Further, the brief three to four month
time span supports the magistrate judge’s decision in finding that
Dr. Goudy’s report needs to be fully evaluated in order to properly

11

reconsider the weight to be assigned to Dr. Thomas’s opinion.
Accordingly, this Court agrees with the magistrate judge’s finding.
It should be noted, however, that a portion of Dr. Goudy’s
report discusses the plaintiff’s PTSD diagnosis. This Court agrees
with the magistrate judge’s recommendation concerning that portion,
meaning that such portion of Dr. Goudy’s report should not be
considered when this civil action is remanded. The plaintiff did
not initially allege PTSD as a disability, and thus that portion of
Dr. Goudy’s report may not be considered on remand.
IV.

Conclusion

For the reasons above, the magistrate judge’s report and
recommendation

is

hereby

AFFIRMED

and

ADOPTED.

Thus,

the

plaintiff’s motion for summary judgment is GRANTED IN PART and the
defendant’s motion for summary judgment is DENIED.

It is further

ORDERED that this case be REMANDED to the Commissioner for further
action

in

accordance

with

the

magistrate

judge’s

report

and

recommendation. It is ORDERED that this civil action be DISMISSED
and STRICKEN from the active docket of this Court.
Finally, this Court finds that the parties were 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 defendant has failed to

object, she has waived her right to seek appellate review of this

12

matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
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
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

January 7, 2015

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

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