United States District Court, D. South Carolina
Richard Mark Gergel, United States District Judge
has brought this action pro se pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of the final decision
of the Commissioner of Social Security denying his claim for
Disability Insurance Benefits ("DIB") and
Supplemental Insurance 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 on December 6, 2016, recommending that the
Commissioner's decision be affirmed. (Dkt. No. 33).
Plaintiff filed no response to the Report and Recommendation.
As more fully set forth below, the decision of the
Commissioner is reversed and remanded for further action
consistent with this order.
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 may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge, 28 U.S.C. §
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 (4th Cir. 1971).
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).
the regulations of the Social Security Administration, the
Commissioner is obligated to consider all medical evidence
and the opinions of medical sources, including treating and
examining physicians. Id. §404.1545. This
includes the duty to "evaluate every medical opinion we
receive." Id. § 404.1527(c). Special
consideration is to be given to the opinions of treating and
examining physicians of the claimant. As the agency
regulations provide, "generally, we give more weight to
opinions of a source who has examined you than to the opinion
of a source who has not examined you." Id.
§ 404.1527(c)(1). The opinions of treating and examining
physicians are weighed under 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. §§
Social Security claimant who satisfies the legal requirements
for a work-related disability may nonetheless be denied
benefits under some circumstances if he has been noncompliant
with medical treatment. Preston v. Heckler, 769 F.2d
988, 990 (4th Cir. 1985). The Fourth Circuit has ruled,
however, that "[i]f noncompliance is ultimately to be
found the basis for denying benefits, " the Commissioner
carries the burden of producing evidence and making a
"particularized inquiry" that the claimant's
condition was "reasonably remediable" and he
"lack[edj good cause for failing to follow a prescribed
treatment plan." Id. at 990-91; Fleming v.
Barhart, 284 F.Supp.2d 256, 274 (D. Md. 2003).
"Essential to a denial of benefits" for
noncompliance is a finding that if the claimant followed his
prescribed treatment he could return to work. Rousey v.
Heckler, 11\ F.2d 1065, 1069 (7th Cir. 1985). Further, a
claimant's lack of compliance with prescribed medical
treatment caused by poverty or lack of access to medical care
cannot be the basis for denial of Social Security benefits.
Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir.
then 42 years of age, applied for DIB and SSI with the Social
Security Administration on August 21, 2013, alleging that he
had been disabled since July 17, 2008. Plaintiff asserted
that he suffered from a variety of impairments, including the
recurrence of severe back pain following a 2006 back surgery,
liver disease and diabetes. It is uncontested that Plaintiff
has not been gainfully employed since the alleged onset date
of July 17, 2008. Tr. 12.
of the Social Security Administration review of his
disability application, Plaintiff underwent an examination by
a consulting physician, Dr. George Mills, on December 23,
2009. Dr. Mills documented Plaintiffs history of significant
back pain (a constant 6 on a 1-10 pain scale) with radiating
pain down both legs. Dr. Mills further documented Plaintiffs
inability to walk greater than 60-80 feet at any one time and
to lift any appreciable weight. He concluded that "the
man is not getting any treatment at all and his progress is
downhill. His prognosis is certainly guarded because of the
constant pain." Tr. 273-276.
underwent a second examination by a consulting physician, Dr.
Pravin Patel, on June 8, 2012. Dr. Patel documented
Plaintiffs complaints of severe back pain and radiating leg
and foot pain. He noted that Plaintiffs back pain was
exacerbated with walking, lifting, standing, and sitting and
was improved with rest. Dr. Patel document a relatively
normal and benign back examination. He also noted that
Plaintiff was not then receiving medical treatment for his
back ailments. Dr. Patel further documented Plaintiffs
admitted heavy use of alcohol, with the Plaintiff stating
that the drinking relieved his back pain. Tr. 341-344.
was seen at the Sandhills Medical Foundation, a charitable
medical clinic, beginning in August 2013 regarding his severe
back pain. He reported that he had not seen a physician in
years, explaining that he had no insurance or other means to
pay for his medical care. A MRI of the lumbar spine was
ordered and performed on August 28, 2013, and documented the
presence of significant spinal pathology. This included
recurrent disc desiccation with a focal right central disc
protrusion at ¶ 4-5 that produced "anterior
effacement of the right and left L5 nerve roots." Tr.
361-2. Sandhills treating physicians recommended Plaintiff
for referral to an orthopaedist for back surgery, physical
therapy and pain management. However, he repeatedly advised
Sandhills physicians he had no insurance or other means to
afford such medical treatment. Tr. 363-4, 365-366, 367-68,
application for disability benefits was denied
administratively within the Social Security Administration,
and he timely filed an appeal. An administrative law judge
("ALJ") conducted an evidentiary hearing regarding
his appeal on April 29, 2015. Plaintiff and a vocational
expert testified at the administrative hearing. Plaintiff
confirmed his medical history of severe back and radiating
leg pain and a limited ability to walk, sit and stand for any
appreciable period. Tr. 30-34. The ALJ asked Plaintiff why he
had not received medical treatment for his back pain, and he
stated "I can't afford it." Tr. 35-36. The ALJ