United States District Court, D. South Carolina
Melvin C. Baker, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
Richard Mark Gergel United States District Judge.
matter comes before the Court for judicial review of the
final decision of the Commissioner of Social Security denying
Plaintiffs application for Disability Insurance Benefits
("DIB"). In accordance with 28 U.S.C. § 636(b)
and Local Rule 73.02, D.S.C., this matter was referred to the
United States Magistrate Judge for pretrial handling. The
Magistrate Judge issued a Report and Recommendation on
December 12, 2016 recommending that the decision of the
Commissioner be reversed and remanded because of an
inadequate assessment of the claimant's residual
functional capacity ("RFC") by the Administrative
Law Judge (ALJ) related to the Plaintiffs persistent
complaints of fatigue associated with his diagnosis of
multiple sclerosis. (Dkt. No. 21 at 16-19). The Magistrate
Judge concluded that the record relied upon by the ALJ, which
primarily derived from a one-page report by Dr. Richard
Polin, was insufficient to determine if there was substantial
evidence to support the Commissioner's RFC finding.
(Id. at 19-20). The Commissioner has filed a
response to the Magistrate Judge's Report and
Recommendation indicating that she will file no objections.
(Dkt. No. 23).
application for disability benefits has a protracted and
troubled history. Plaintiff initially applied for Disability
Insurance Benefits (DIB) on November 11, 2010 and asserted a
disability onset date of July 15, 2010. The application was
denied by the ALJ on November 1, 2012, and Plaintiff
thereafter timely filed an appeal to this Court. This Court
reversed the denial of benefits and remanded the matter to
the agency on June 20, 2014, after the Commissioner moved to
remand the matter to allow further evaluation of Plaintiff s
complaints related to fatigue associated with his multiple
sclerosis. Baker v. Colvin, C.A. No. 4:14-2316-RMG
(June 20, 2014). While Plaintiffs appeal was pending in this
Court, he made a second application for Social Security
disability benefits based on the same medical conditions,
which were ultimately awarded by the Appeals Council
effective November 1, 2011. Tr. 293.
agency's award of benefits effective November 1, 2011 was
well supported by the record. Plaintiff was initially
diagnosed with multiple sclerosis complicated by severe
fatigue in March 2010 by his family physician, Dr. S.C.
Evans. Plaintiff was thereafter referred to Dr. Aljoeson
Walker, a board-certified neurologist at the Medical
University of South Carolina. From Dr. Walker's initial
assessment of Plaintiff in September 2010 through the last
evaluation in the record in May 2012, she consistently
diagnosed him with "remitting-relapse multiple
sclerosis" with "severe fatigue and
tiredness." Tr. 167-68, 195-96, 230-31, 232-233, 242-44.
A neurological evaluation conducted for the Social Security
Administration by Dr. Kerri Kolehma on April 27, 2011 noted
Plaintiffs fatigue and diagnosed him with
"relapsing-remitting MS ... in the relapsing phase"
that "continues with deficits from prior episodes."
Social Security Administration's award of disability
benefits to Plaintiff effective November 1, 2011 left open
the issue of his entitlement to benefits for the period from
his alleged onset date of July 15, 2010 until October 31,
2011. In light of the documented medical record in this
matter from Plaintiffs treating physicians and an examining
physician, one might have thought that an award of benefits
on remand from the alleged onset date of July 15, 2010 until
October 31, 2010 would be something of a formality. Tr. 154,
157, 167. To the contrary, the agency summoned the assistance
of an Oregon-based chart reviewer, Dr. Richard Polin, who one
court has described as "a medical consultant for the
Social Security Administration." Mulhall v.
Colvin, C.A. No. 8:11-441, 2013 WL 959003 (D. Neb. Mar.
12, 2013). In a one-page report, Dr. Polin, who has never
examined or treated Plaintiff, concluded that "the
claimant was capable of light work." Tr. 428. He
provided no support for this conclusion, which is
inconsistent with a conclusion already reached by the agency
that Plaintiff has been disabled at least since November 1,
2011. Dr. Polin made no reference to this agency finding in
his truncated report and offered no evidence to suggest that
this very same conclusion would not be reached from the July
2010 onset date asserted by Plaintiff until October 31, 2011.
Magistrate Judge correctly noted that Dr. Polin's report
is so sparse that substantial evidence review is not
possible. (Dkt. No. 21 at 19-20). The Court further notes
that as a non-examining and non-treating physician, Dr.
Polin's opinions should be accorded the lowest level of
deference under the Treating Physician Rule, and greater
weight should be given to examining and treating physicians,
such as Drs. Walker, Evans and Kolehma. 20 C.F.R. §
404.1527(c). The ALJ's decision reflects no application
of the standards of the Treating Physician Rule and provides
an additional basis for reversal and remand beyond the
well-reasoned Report and Recommendation of the Magistrate
Court has reviewed the Report and Recommendation and the
record evidence and finds that the Magistrate Judge has ably
addressed the factual and legal issues in this matter.
Therefore, the Court ADOPTS the Report and Recommendation as
the order of this Court, as further explained by this
Court's order. The Court REVERSES the decision of the
Commissioner pursuant to Sentence Four of 42 U.S.C. §
405(g), and REMANDS the matter to the Commissioner for
further proceedings consistent with this order. In the event
the agency feels it needs further medical information
regarding Plaintiff, it ...