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Lowe v. Colvin

United States District Court, D. South Carolina, Florence Division

September 14, 2016

Thomas P. Lowe, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          PATRICK MICHAEL DUFFY United States District Judge.

         This matter comes before the Court on Plaintiff Thomas Lowe's objections to the Magistrate Judge's report and recommendation (“R & R”) (ECF Nos. 18 & 16). The Magistrate Judge recommends that the Court affirm the Commissioner's final decision denying Lowe's claim for social security benefits. For the reasons stated herein, the Court sustains one objection, reverses the Commissioner's decision, and remands to the agency.


         The Magistrate Judge makes only a recommendation to this Court. The R & R has no presumptive weight, and the responsibility for making a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). Parties may make written objections to the Magistrate Judge's proposed findings and recommendations within fourteen days after being served with a copy of the R & R. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo review of any portion of the R & R to which a specific objection is made, and the Court may accept, reject, or modify the Magistrate Judge's findings and recommendations in whole or in part. Id. Additionally, the Court may recommit the matter to the Magistrate Judge with instructions. Id. A party's failure to object is taken as the party's agreement with the Magistrate Judge's conclusions. See Thomas v. Arn, 474 U.S. 140 (1985). Absent a timely, specific objection-or as to those portions of the R & R to which no specific objection is made-this Court “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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).


         Lowe makes several objections. The Court need address only one of them.

         As one would expect in a disability proceeding, the evidence before the ALJ included Lowe's medical records. Many of those records consisted of notes that Lowe's primary care providers made of his treatment visits. The notes cover visits over the course of several years. The ALJ frequently cited them throughout his written decision and used them in his determination of Lowe's residual functional capacity.

         The notes for several of Lowe's visits contain glaring contradictions. For example, on April 27, 2010, Lowe presented to his physician for what Lowe described as chronic neck and back pain; increasing pain in both of his feet; tingling and numbness in his hands, legs, and feet; burning and tingling in other parts of his body; and dizziness. Lowe said his back and neck were constantly in pain, and he described it feeling like someone was stabbing him in the back with a knife and then twisting it. Elsewhere, however, the notes state Lowe denied having any joint pain, muscle pain, dizziness, or other symptoms. As the Magistrate Judge correctly pointed out, similar contradictions appear in the notes for Lowe's primary care visits in July and December 2010.[2]

         The ALJ highlighted those contradictions in his written decision. For example, in his discussion of Lowe's July 2010 visit, the ALJ recited that Lowe presented with complaints of chronic back pain, arm and finger numbness, and headaches. The ALJ then wrote the following:

Despite the subjective complaints, the claimant continued to deny several symptoms, and the physical exam remained largely normal. For instance, at this visit, the claimant denied weight change, malaise, joint pain, swelling, stiffness, weakness, myalgias [sic], headache, poor vision, poor hearing, tinnitus, breathing problems, syncope, paresthesias [sic], cardiac problems, and gastrointestinal problems, among others. The claimant denied dysuria, polyuria, polydipsia, appetite change, and heat/cold intolerance. He denied numbness, dizziness, depression, anxiety, and memory changes.

         (ALJ Decision dated May 24, 2013, ECF No. 9-3, at 16 (emphasis added).) The ALJ drew similar contrasts in his discussion of the April and July 2010 visits. Those contrasts, as well as other portions of the ALJ's decision, demonstrate that the ALJ chose to believe the symptom denials over Lowe's complaints. The ALJ found those contradictions, and those symptom denials, to be significant to his conclusion that Lowe is not disabled.

         In each of the three sets of visit notes, the symptom denials appear as a list under the heading “review of systems.” Lowe contends it was improper for the ALJ to rely on those lists because they are flatly inconsistent with the stated purposes of his visits and with the descriptions of his pain found elsewhere in the notes. As mentioned above, the Magistrate Judge recognized the notes' contradictions. Nonetheless, the Magistrate Judge concluded, any potentially improper reliance by the ALJ on those contradictory notes was harmless because the ALJ also considered the notes of Lowe's complaints, as well as other portions of the record. Lowe now objects to that harmless-error conclusion.

         The Magistrate Judge stopped short of stating that the ALJ erred, instead assuming error in the harmlessness analysis. This Court, however, does find that the ALJ erred in two respects. The first involves the ALJ's use of the symptom denials to discount Lowe's “subjective complaints” of pain and other problems. To be clear, the ALJ did not err merely by relying on internally contradictory pieces of evidence, nor was it error per se to give the denial statements more weight than the complaints. Cf. Vo v. Astrue, 518 F.Supp.2d 715, 727 (D.S.C. 2007) (“[W]hen the medical testimony or conclusions are conflicting, the ALJ is not only entitled but required to choose between them . . . .” (citation and quotation marks omitted)). However, ALJs cannot resolve conflicts in the evidence arbitrarily or using improper reasons. See, e.g., Mullinax v. Colvin, No. 5:13-CV-00169-GCM, 2014 WL 6997766, at *5 (W.D. N.C. Dec. 10, 2014) (stating ALJ could not arbitrarily choose one piece of conflicting evidence over another without explaining the choice); Vo, 518 F.Supp.2d at 727 (indicating district court's review includes determining whether the ALJ's reasons for rejecting evidence were improper). To ensure that ALJs are not making such unreasoned or ill-reasoned choices, reviewing courts require ALJs to explain their basis for discounting or rejecting otherwise probative evidence. See Vo, 518 F.Supp.2d at 727 (stating ALJs must explain why they reject probative medical evidence “so that a reviewing court can determine whether the reasons for rejection were improper” (citation and quotation marks omitted)); see also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016) (stating remand may be appropriate where “inadequacies in the ALJ's analysis frustrate meaningful review.”). The ALJ erred here by not providing that explanation. He may well have had a legitimate basis for choosing to believe the terse lists of denied symptoms over Lowe's descriptions of his ailments, which the notes often quote. However, that basis is not apparent, frustrating this Court's review.

         The second, more substantive error is that, in all three of Lowe's 2010 doctor visits, the ALJ misstated what symptoms were listed as denied. The ALJ wrote that Lowe denied paresthesia and numbness in the April and July visits and that Lowe denied weight change in the December visit. The ...

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