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Hogue v. Colvin

United States District Court, D. South Carolina

February 3, 2016

Tara Elizabeth Hogue, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


Richard Mark Gergel United States District Judge

Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). In accord with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate Judge for pre-trial handling. The Magistrate Judge issued a Report and Recommendation ("R & R") on January 4, 2016, recommending that the Commissioner's decision be affirmed. (Dkt. No. 23). Plaintiff timely filed objections to the R & R, arguing that the Commissioner had failed to evaluate the opinions of claimant's treating pain management physician, Dr. Albert Read Lewin, in accord with the standards of the Treating Physician Rule and had failed to address and weigh the opinions of physicians who provided care to Plaintiff at the Medical University of South Carolina (MUSC") Pain Management Clinic. (Dkt. No. 25). The Commissioner has filed a response arguing that there is substantial evidence to support the decision of the Commissioner. (Dkt. No. 26). As set forth more fully below, the Court reverses the decision of the Commissioner and remands the matter to the agency because the Administrative Law Judge ("ALJ") failed to address and weigh the opinions of Dr. Lewin and the opinions of other experts in accord with the standards of the Treating Physician Rule or to address at all the opinions of Plaintiff s treating physicians at the MUSC Pain Management Clinic.

Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court, Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. The Act provides that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes de novo review of the factual circumstances that substitutes the Court's findings of fact for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971).

Although the federal court's review role is a limited one, "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 an uncritical rubber stamping of the administrative action." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Further, the Commissioner's findings of fact are not binding if they were based upon the application of an improper legal standard. Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987).

Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. § 404.1527(b). Known popularly as the "Treating Physician Rule, " the regulation requires the Commissioner to "evaluate every medical opinion we receive." Id. § 404.1527(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." Id. § 404.1527(c)(2).

Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh all medical opinions in light of a broad range of factors, including the examining relationship, the treatment relationship, length of treatment, nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. Id. §§ 404.1527(c)(l)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492 (July 2, 1996). Further, the Commissioner pledges that because non-examining physicians who offer opinions "have no examining or treating relationship" with the claimant, "the weight we will give their opinions will depend on the degree which they provide supporting explanations for their opinions" and the "degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources." § 404.1527(c)(3).

Factual Background

Plaintiff presents a complicated and, to her treating physicians, an often confounding picture that included severe back pathology documented on radiographic studies, gross obesity, PTSD from a traumatic childhood, and a history of significant drug abuse that included a period of incarceration. As one of her treating physicians observed, "she has ... lots of problems that she comes in with." Tr. 484. Plaintiff presented to multiple providers with complaints of severe right knee pain in 2008 - 2010 and persistently sought pain medications for this condition, often generating suspicion from her providers that she was engaged in drug seeking behavior. Tr. 247, 251, 395-96, 532, 534, 560. In early 2011, Plaintiff began complaining about severe lower back pain following a fall. Tr. 38-39, 767. Her treating physicians were understandably suspicious that Plaintiff was drug seeking, particularly after her back examinations were not strikingly abnormal. Tr. 390, 392, 393, 525, 527. However, after insisting that she was experiencing almost unbearable pain, she was admitted to MUSC from March 10 -12, 2011, for pain control, treatment of suspected psychological conditions and a full diagnostic workup, including a lumbar spine MRI. Tr. 389-91.

In what was perhaps a surprise to her treating physicians, Plaintiffs MRI demonstrated severe degenerative disc disease in the lumbar spine with "significant facet arthropathy at L4-5 with narrowing of the lateral recesses and displacement of L5 transiting nerve root." Tr. 400, 482. Further, it was noted that the facet degeneration was so significant "she has fluid collections in there." Tr. 485, Plaintiffs treating attending physician at the MUSC Pain Clinic, Dr. Steven Gilbert, documented that the abnormalities on the MRI were "quite concordant with radiating pain of [a] neuropathic nature" described by the patient. Tr. 484. Dr. Gilbert concluded that Plaintiffs "lumbar degenerative disease is undoubtedly causing some of these problems" but observed that because of her obesity surgery was not an option, Tr. 485, A plain film of the lumbar spine performed two months later, in May 2011, confirmed these spinal abnormalities and suggested the condition might be worsening. Tr. 500.

Plaintiffs treating physicians at MUSC remained concerned about Plaintiffs persistent requests for pain medications and observed inconsistencies between what she claimed to be limitations because of pain and her actual physical limitations. For instance, one physician noted that she came in on crutches but did not need them upon leaving the exam room. He also observed that she was unable to get out of the chair during the examination but was able to do so when leaving the room. Tr. 386. She also claimed that she was no longer using cocaine but a drug test administered during the March 2011 hospitalization was positive for cocaine. Tr. 369, 382.

Plaintiff persistently sought pain medications, often unsuccessfully, from her MUSC physicians. Because of her addiction history, they were reluctant to prescribe potentially addictive medications but did administer a series of epidural blocks in an effort to provide her pain relief. These epidurals provided temporary relief but Plaintiff complained of continuing, severe pain. Tr. 477, 478, 480. Plaintiff sought, and at times obtained, short-term prescriptions for pain medications from other providers. Tr. 518-19, 553, 590, 614, 676.

Beginning in the latter part of 2011, Plaintiff became a patient of Dr. Albert Reed Lewin, who undertook an intense regime of epidural injections and potent pain medications in an effort to provide the patient pain relief. Dr. Lewin examined and treated Plaintiff more than 30 times from late 2011 until the time the record ends in this case in 2012. Tr. 638-39, 641, 716, 717-18, 719-20, 724, 725, 727, 728-29, 732, 735, 738, 741, 744, 746, 748, 752, 753, 754-55, 757-58, 759-60, 762, 764-5, 767-68, 774, 775, 777, 778, 779, 781, 782, 783, 784, 785, 787, 789, 793, 796. From Dr. Lewin's many examinations of Plaintiff and observations from the multiple epidural injections, he clearly believed her pain was genuine and severe. In a February 28, 2012 office visit, he described Plaintiffs pain as "bilateral in the lumbar and sacral spine radiating down the left leg." ...

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