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Smith v. Berryhill

United States District Court, D. South Carolina

September 7, 2017

Lori Anne Smith, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE.

         Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security denying his claim for Disability Insurance Benefits ("DIB"). 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 Commissioner's decision be affirmed. (Dkt. No. 18). Plaintiff timely filed objections to the R & R, and the Commissioner filed a response. (Dkt. No. 22, 23). For reasons set forth below, the Court reverses the decision of the Commissioner and awards benefits to the claimant.

         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, 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 niedical evidence and the opinions of medical sources. 20 C.F.R. § 404.1527(b). The regulation, popularly known as the "Treating Physician Rule, " requires the Commissioner to "evaluate every medical opinion we receive." Id. § 404.1527(c). The Commissioner pledges to give special consideration to the opinions of treating and examining physicians, noting explicitly that "we will give more weight to the opinion of a source who has examined you than the opinion of a source who has not examined you." Id. 404.1527(c)(1)(2).

         The Commissioner is obligated to weigh all medical opinions in light of 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. §§ 404.1527(c)(1)-(5). Further, since the Commissioner recognizes that the non-examining expert has "no treating or examining relationship" with the claimant, she pledges to weigh the opinions of non-examining physicians under the same standards as any other medical opinion and to consider the supporting explanations for their opinions and "the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and examining sources." Id. §§ 404.1527(c)(3), (e)(2)(ii). The Commissioner is also prohibited from "playing doctor, " by substituting the medical opinions of the Commissioner or the Administrative Law Judge (ALJ) for those of physicians. Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017).

         The Commissioner is also obligated to weigh and consider a claimant's subjective complaints of pain beyond consideration of objective medical evidence. Under the agency's regulatory scheme, the ALJ must first determine if there is objective medical evidence showing a condition that reasonably could produce the claimant's symptoms. If such objective medical evidence is present, the ALJ must then evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit the claimant's activities. 20 C.F.R. § 404.1529. In making this determination at the second stage of the pain assessment process, the ALJ may not require objective medical evidence to document the intensity of the claimant's pain since this would improperly increase his burden under the regulatory scheme. Lewis, 858 F.3d at 866.[1]

         Factual Background

         This application for disability benefits has a protracted administrative and appellate history, dating back over eight years. The relevant time period for this disability claim is from October 6, 2004 until the date of last insured of March 31, 2008. This Court has twice reversed the decision of the Commissioner denying benefits for Plaintiff, both times1 finding that the ALJ had failed to consider all of the medical evidence in the record and to properly apply the provisions of the Treating Physician Rule. In the Court's first decision in this matter, the decision was reversed because the ALJ did not evaluate the opinions of Dr. Nancy Lembo, the claimant's treating pain specialist. Lori Anne Smith v. Michael J, Astrue, C.A. No. 9:11-376-RMG, 2012 WL 2376898 (2012). Two years later, the Court again reversed the decision of the Commissioner because the ALJ found there was no objective evidence to support the claimant's persistent complaints of severe pain when the record contained multiple radiographic studies demonstrating significant spinal abnormalities. The Court further found reversible error in the ALJ's failure to address the ongoing treatment afforded by the claimant's family physician, Dr. Patricia Campbell, who managed the Plaintiffs pain therapy when she was no longer able to afford the specialist pain management services of Dr. Lembo. Lori Ann Smith v. Carolyn W. Colvin, C.A. No. 9:13-1993 (2014). The Court observed that it was "mystifying ... why the treatment provided by the Plaintiffs treating family physician, Dr. Campbell, which involved frequent pain assessments and prescriptions for pain medications, went unmentioned." Id. at 8-9.

         This latest order, which the Court now reviews here, acknowledged that the claimant did have abnormal radiographic findings in her cervical spine and reduced claimant's residual functional capacity level from the light work level found in the earlier administrative decisions to less than the full scope of sedentary work.[2] Tr. 626128. Rather than assessing the claimant's subjective complaints of pain in accord with the standards set forth in 20 C.F.R. § 404.1529, the ALJ evaluated the record evidence to determine whether the claimant had an objective basis for a second orthopaedic surgery of her cervical spine during the relevant time period ending on March 31, 2008. The ALJ pointed to objective evidence of progressively worsening MRI findings after the date last insured to support his conclusion that the claimant was not disabled during the relevant time period. As the Court will address more fully later in this order, it is clear legal error to determine the validity of a claimant's subjective complaints of pain on the basis of whether there was objective evidence of a need for further surgery during the insured period.

         By way of background, Plaintiff was involved in a motor vehicle accident on October, 6, 2004, in which her neck was flexed both forward and backward. Tr. 286. Plaintiff initially was treated non-surgically by her orthopaedic surgeon, Dr. Stephen Rawe, for her complaints of persistent neck pain and radiating left arm pain. When her condition did not improve, she underwent a major orthopaedic surgery in May 2005, which involved an anterior cervical diskectomy and an anterior interbody fusion. Tr. 298-300. Plaintiff experienced some initial improvement following her surgery but her neck pain soon worsened. Tr. 290, 291, 292, 293. A repeat MRI performed in February 2006 showed flattening of the anterior cord at C/4- C7, but Dr. Rawe concluded that Plaintiffs condition did not indicate a need for a second surgery. Tr. 293, 305-06.

         With no surgical option then available, Plaintiffs medical care, including her complaints of severe neck pain, was managed by her family physician, Dr. Campbell. Plaintiff was treated by Dr. Campbell with powerful narcotic pain medications, including Oxycontin and Percocet, to assist Plaintiff in tolerating her severe neck pain. Tr. 294. Thereafter, Dr. Campbell referred Plaintiff to a pain medicine specialist, Dr. Lembo, to assist in the medical management of Plaintiffs severe neck pain. In a March 2007 note, Dr. Lembo "documented Plaintiffs frustration with her chronic pain, which involved the neck with radiating pain down the shoulders. Efforts were being made to move Plaintiff from Oxycontin to Percocet and Mepergan, all narcotic medications ...


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