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Cohen v. Berryhill

United States District Court, D. South Carolina

August 23, 2017

Deobrah A. Cohen, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security, Defendant.


          Richard Mark Gergel United States District Judge.

         Plaintiff 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.

         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 (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. § 404.1545. 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 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). 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).

         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 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. §§ 404.1527(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).


         It is 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).

         The 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 below.

         This 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).

         This 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 neurologist. 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.

         The ALJ concluded that Dr. Hamilton's opinions were entitled to "little weight" because his opinion regarding the claimant's fatigue was not related to assertional 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 ...

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