United States District Court, D. South Carolina
Deobrah A. Cohen, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security, Defendant.
Richard Mark Gergel United States District Judge
has brought this action 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 Security Income ("SSI"). In accordance
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 July 31, 2017,
recommending that the Court reverse the decision of the
Commissioner and award DIB. (Dkt. No. 23). The Commissioner
filed objections to the Report and Recommendation. (Dkt. No.
25). As more fully set forth below, the Court adopts the R
& R of the Magistrate Judge as the order of the Court,
reverses the decision of the Commissioner, and remands for
the award of DIB.
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).
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
physicians. 20 C.F.R. § 404.1545. The regulation, known
as the "Treating Physician Rule, " imposes a duty
on the Commissioner to "evaluate every medical opinion
we receive." Id. § 404.1527(c). The
Commissioner "[g]enerally . . . give[s] more weight to
opinions from .. . treating sources" 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 impairments) 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). Further, the Commissioner
"[g]enerally . . . give[s] more weight to the opinion of
a source who has examined [the claimant] than to the opinion
of a source who has not examined [the claimant]."
Id., § 404.1527(c)(1).
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 those opinions in light of a broad range of
specifically identified factors, including the examining
relationship, the nature and extent of the treatment
relationship, supportability of the opinions in the medical
record, consistency, and whether the treating physician is a
specialist. Id. §§ 4O4.l527(c)(1)-(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). Under the Treating Physician Rule, preference
is generally given to the opinions of treating physicians
over the opinions of non-examining chart reviewers or one
time examiners. 20 C.F.R. §§ 404.1527(c)(1), (2).
important at the outset to set forth the present posture of
this appeal. This case arises from an appeal in which the
Commissioner awarded benefits to the claimant from October 1,
2013, based upon the claimant reaching 55 years of age and
qualifying as a "person of advanced age." Tr. 636.
Therefore, this appeal addresses the claimant's
application of benefits from his alleged disability onset
date of August 1, 2010 until September 30, 2013. Tr. 632.
Further, in the course of this protracted appeal, now running
nearly seven years, the claimant passed away (on November 7,
2016), and his daughter was allowed to be substituted as the
plaintiff for purposes of obtaining judicial review of the
DIB claim. (Dkt. No. 22).
Magistrate Judge has skillfully set forth the factual
background of the claimant's disability appeal (making
recitation here unnecessary) and correctly concluded that
reversal of the decision of the Commissioner is required
under controlling law. The R & R further sets forth the
remarkable circumstances presented by this appeal and
properly concludes that this Court should remand this matter
to the agency with an order to award DIB. For these reasons,
the Court adopts the R & R of the Magistrate Judge as the
order of this Court, with further elaboration set forth
appeal raises two fundamental legal principles vital to the
proper enforcement of the Social Security Act and its
controlling regulations: the duty of the Commissioner to (1)
apply and enforce the provisions of the Treating Physician
Rule; and (2) abide by the decisions of the United States
District Court in reversing and remanding a decision under
the Social Security Act. The Treating Physician Rule
obligates the Commissioner to weigh all medical opinions
under standards which provide special deference to the
opinions of treating, examining and specialist physicians. 20
C.F.R. § 404.1527(c). Administrative law judges are
further prohibited from substituting their medical opinions
for those of medical providers, which the Fourth Circuit
recently referred to as the prohibited practice of the ALJ
"playing doctor." Lewis v. Berryhill, 858
F.3d 858, 869 (4th Cir. 2017).
disability claim appeal first came before the District Court
following a December 2012 decision in which the ALJ gave
"little weight" to the opinions of Dr. Brent
Hamilton, the claimant's treating nephrologist. Dr.
Hamilton provided a written opinion that Plaintiffs chronic
kidney disease limited him to sedentary work. This opinion
was based on the fact that the claimant's kidney disease
produced fluid retention and anemia, causing "fatigue,
decreased energy, and concentration difficulties." Tr.
616. Due to the claimant's age and other factors, a
limitation to sedentary work would render the claimant
disabled under the Social Security Act.
concluded that Dr. Hamilton's opinions were entitled to
"little weight" because his opinion regarding the
claimant's fatigue was not related to exertional activity
and it appeared that the physician "prepared this report
as an accommodation to the claimant and based on his
subjective complaints." Tr. 20. The ALJ decision was
reversed by this Court in a July 2015 order, which found that
the ALJ's stated bases for rejecting Dr. Hamilton's
opinions did not constitute "good reasons" under
the Act. Tr. 677-78, 680-91. The Court specifically noted
that the rejection of Dr. Hamilton's opinion regarding
fatigue because it was a non-exertional symptom of the
claimant's chronic kidney disease was legally improper
and the ALJ had failed to accord proper weight to Dr.
Hamilton's opinions because of his status as a treating
specialist physician. Tr. 684-89 The Court's July 2015
order reversed and remanded the matter to the Social Security
Administration "for further proceedings consistent with
this order." Tr. 678. The agency thereafter assigned
this disability appeal to the same ALJ, who issued a new
decision in March 2016 denying the claimant's disability
claim and finding again that Dr. Hamilton's opinions were
entitled to "little weight." The ALJ gave virtually
identical reasons for ...