Opinion
C/A No. 0:16-1340-TMC-PJG
07-19-2017
Jay Randolph Rush, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Jay Randolph Rush, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that this matter should be remanded for further proceedings.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In October 2013, Rush applied for DIB, alleging disability beginning January 26, 2013. Rush's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on September 18, 2015, at which Rush appeared and testified, and was represented by Marie Contrucci Lowery, Esquire. The ALJ issued a decision on October 26, 2015 finding that Rush was not disabled. (Tr. 16-31.)
Rush was born in 1969 and was forty-three years old on his disability onset date. (Tr. 29.) He has an eighth-grade education and has past relevant work experience as a roofer, an apartment maintenance person, a masonry laborer, a remodeling foreman, and an assembly person at a manufacturing company. (Tr. 189.) Rush alleged disability due to an automobile accident; back, neck, and spine pain; and hepatitis C. (Tr. 188.)
In applying the five-step sequential process, the ALJ found that Rush had not engaged in substantial gainful activity since his alleged onset date of January 26, 2013. The ALJ also determined that Rush's degenerative disc disease, anxiety, depression, and substance abuse disorder were severe impairments. However, the ALJ found that Rush did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that Rush retained the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except no climbing ladders/scaffolds or crawling; occasional climbing ramps/stairs, stooping, kneeling, crouching, balancing; no overhead reaching; frequent fingering and handling with the dominant right upper extremity; no exposure to work hazards; simple, repetitive tasks; no direct customer service; no work in a team setting; no fast-paced production environment[.](Tr. 20.) The ALJ found that Rush was unable to perform any past relevant work, but that, considering Rush's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Rush could perform. Therefore, the ALJ found that Rush was not disabled from the alleged onset date of January 26, 2013 through the date of the decision.
The Appeals Council denied Rush's request for review on March 8, 2016, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Rush raises the following issues for this judicial review:
I. The ALJ failed to adequately discuss the cumulative eff[e]ct of Mr. Rush's multiple impairments; and(Pl.'s Br., ECF No. 17.)
II. The ALJ's RFC analysis is not based on substantial evidence.
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527, 416.913, 416.927. Because the instant claim was filed in 2013, all references in the instant Report and Recommendation are to the prior versions of the regulations in effect at the time Rush's application for benefits was filed, unless otherwise specified.
Underpinning both issues raised by Rush is his argument regarding the ALJ's decision to give the opinion of his treating psychiatrist, Dr. Todd Magro, little weight. (See generally Pl.'s Br. at 19, ECF No. 17 at 19.) The law applicable to Rush's application provides that regardless of the source, the Commissioner will evaluate every medical opinion received. 20 C.F.R. § 404.1527(c). Typically, the Social Security Administration accords 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. See 20 C.F.R. § 404.1527(c)(2). However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Rather, a treating physician's opinion is evaluated and weighed "pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). In the face of "persuasive contrary evidence," the ALJ has the discretion to accord less than controlling weight to such an opinion. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Further, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id. (quoting Craig, 76 F.3d at 590).
Additionally, SSR 96-2p provides that a finding that
a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to "controlling weight," not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.SSR 96-2p, 1996 WL 374188, at *5. This Ruling also requires that an ALJ's decision "contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Id.
In his decision, the ALJ afforded "little weight" to Dr. Magro's opinion, giving three reasons for doing so. The court agrees that these reasons are not supported.
First, the ALJ found that Dr. Magro's "treatment record of continuing to provide the claimant with high dosages of benzodiazepine despite the claimant's well documented history of abuse is questionable and damages the credibility of Dr. Magro's opinion." (Tr. 29.) Such medical conclusions and second-guessing of a physician's treatment, however, with no supporting medical evidence to the contrary, amount to the ALJ's improperly "playing doctor." See, e.g., Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017).
Next, the ALJ discounted Dr. Magro's opinion because he found "no treatment notes since June 2015 that would corroborate Dr. Magro's assertion that the claimant is no longer abusing drugs and alcohol . . . ." (Tr. 29.) As Rush points out, this statement simply seems to be incorrect. (See, e.g., Tr. 770, 772.)
Finally, the ALJ discounted Dr. Magro's opinion because "Dr. Magro's treatment notes contain check block mental status findings which show limited abnormalities on examination inconsistent with the limitations given the claimant by Dr. Magro." (Tr. 29.) The court again agrees with Rush that this reason does not provide substantial evidence supporting the ALJ's decision to give Dr. Magro's opinion little weight. In his opinion, Dr. Magro stated:
He continues to suffer from severe pain that causes physical limitations and worsens his mental illness, resulting in severe impairment in his functioning. To my knowledge, he has not misused prescription drugs, alcohol, or illicit drugs since June 2015. It is my opinion that his addiction is a contributing factor but not causal of his disability. Despite avoiding drugs and alcohol since June, he continues to be severely disabled. He continues to suffer from intense mood swings, poor frustration tolerance, poor focus, severe impairment in problem-solving, poor comprehension, limited ability to engage in normal conversations, poor social interaction, impairment in maintaining household responsibilities, and difficulty completing activities of daily living without assistance including bathing, dressing, and leaving the home. Severe pain and his unstable mental illness are the major causal factors of his disability. Past substance abuse has worsened his symptoms, but he is likely to be significantly and permanently disabled regardless of drug and alcohol use.(Tr. 826.) In relying on the treatment notes (Ex. 22F) to discount Dr. Magro's opinion, the ALJ appears to have noted the symptoms or descriptions checked by Dr. Magro at Rush's examinations that support a finding of "limited abnormalities" while ignoring notations in the treatment notes that indicate limitations. (See, e.g., Tr. 828 (treatment note appearing to be dated April 8, 2015 checking boxes for "alert and oriented"; "normal rate/rhythm/tone"; and fair insight and judgment, but also indicating a sad, anxious mood; positive respiratory findings related to anxiety, back and neck pain; and a slow gait); Tr. 829 (treatment note appearing to be dated March 4, 2015 checking boxes for "alert and oriented" and general fund of knowledge intact but also indicating back and neck pain, slow gait, irritable mood, blunted affect and noting Rush was "frustrated")). Such "cherrypicking" has been found to be improper in this circuit. See Lewis, 858 F.3d at 869.
Although not specifically cited in the opinion, treatment notes from Dr. Magro also appear in Exhibit 17F. (See Tr. 770-74.)
Because the reasons provided by the ALJ for giving little weight to Dr. Magro's opinion that Rush's limitations stem from severe pain and mental illness and exist regardless of any drug or alcohol abuse are not supported, the case should be remanded for further consideration of Dr. Magro's opinion.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE July 19, 2017
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).