United States District Court, D. South Carolina
RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE
brought this action pursuant to 42 U.S.C. § 405(g) to
obtain relief from the final decision of the Commissioner of
the Social Security Administration denying him Disability
Insurance Benefits ("DIB") under the Social
Security Act. 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 pretrial handling. The
Magistrate Judge issued a Report and Recommendation ("R
& R") on November 1, 2017, recommending that the
Commissioner's decision be reversed and remanded to the
agency. (Dkt. No. 20). The Commissioner has filed a reply
indicating that she will not file objections to the R &
R. (Dkt. No. 22). As explained more fully below, the decision
of the Commissioner is reversed in part and affirmed in part
and remanded to the agency with instructions to award
benefits on and after July 22, 2013.
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 R & R to which specific
objection has been made, and 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 of
the Social Security Act is a limited one. Section 405(g) of
the Act provides that "[t]he 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 factual circumstances that substitutes
the Court's findings for those of the Commissioner.
Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).
the federal court's review role is limited, "it does
not follow, however, that the findings of the administrative
agency are 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). "[T]he
courts must not abdicate their responsibility to give careful
scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner's] findings."
Vitek, 438 F.2d at 1157-58.
who was 57 years of age at the time of the alleged onset of
his disability on June 6, 2010, asserted that he was disabled
due to severe pain and physical limitations associated with
degenerative disc disease located in the lower lumbar spine
region. An administrative law judge (ALJ) conducted an
evidentiary hearing on March 6, 2013 and issued a decision on
March 29, 2013 finding that Plaintiff was not disabled. In
reaching that conclusion, the ALJ found that while Plaintiffs
degenerative disc disease was a severe impairment under the
Social Security Act, he retained the residual functional
capacity to perform medium work. Tr. 109-116. The record at
that time documented Plaintiffs complaints of chronic back
pain but the examinations and diagnostic studies were not
particularly remarkable. For instance, Plaintiffs medical
records documented that he had negative straight leg raises
and no palpable tenderness on the lumbar spine on
examination, and plain films of the lumbar spine documented
degenerative changes but no evidence of nerve root
compression. Tr. 465, 469-471. Further, a consulting
examination was conducted by Dr. Harriett Steinert on March
15, 2012, which documented a normal physical examination and
the absence of tenderness in the lumbar spine on palpation.
Tr. 407-10. Two non-examining physicians offered opinions on
March 29, 2012 and June 25, 2012 indicating that Plaintiff
was capable of performing medium work. Tr. 86-88, 99-101. No
treating provider offered any opinions regarding the degree
of Plaintiff s impairments.
Appeals Council granted review of the ALJ's decision and
remanded the case to the ALJ on June 25, 2014 to address
various deficiencies in the decision. Tr. 122-124. New
medical records were submitted prior to a second evidentiary
hearing on February 11, 2015, which offered new and material
evidence regarding the progression of Plaintiff s
degenerative disc disease. An examination by Rebecca
Rakestraw, P.A.-C, who was Plaintiffs primary care provider
at the Veterans Administration, documented in a July 22, 2013
office note that Plaintiff had palpable tenderness in his
lower lumbar spine and positive straight leg raises on the
right side. These were notable changes from Plaintiffs prior
physical examinations. Ms. Rakestraw also noted that
Plaintiffs pain radiated to his right lower extremity and he
was requesting a cane to assist in ambulation. Tr. 564-65.
Ms. Rakestraw ordered radiographic studies, increased
Plaintiffs pain medicine dosage, and approved a prescription
for a cane. Tr. 565. Thereafter, an MRI of the lumbar spine
was performed on August 9, 2013 and was interpreted by Dr.
Bradley Amerson, a board certified radiologist. Dr. Amerson
reported that Plaintiffs MRI revealed "multi-level
degenerative disc disease of the lumbar spine, most
pronounced at ¶ 5-S1"" with a "broad
based disc bulge bilaterally" that produced "severe
bilateral neuroforaminal stenosis, compressing the exiting L5
nerve roots within the neural foramen." Tr. 507-08.
testified at his February 11, 2015 evidentiary hearing that
his symptoms had worsened since the last hearing. Tr. 32.
Plaintiff stated he was limited to walking approximately one
block and any additional walking produced
"excruciating" pain. Tr. 33-4. He told the ALJ
"I just can't do nothing because if I try to do
anything, my pain comes on." Tr. 36. Plaintiff stated
that he lived with his sister and spent most of the time on
the coach and around the house. Tr41-2.
Rakestraw completed a questionnaire on February 26, 2014
concerning the nature and degree of Plaintiff s impairments.
She stated that Plaintiff could not stand or walk more than
two hours in an eight hour workday, never lift greater than
20 pounds, and would likely be absent approximately two days
a month due to his degenerative disc disease. She noted the
August 2013 MRI findings and her earlier clinical findings of
"palpable tenderness over the lumbar spine" and
"straight leg raise positive on r[ight]." She also
stated that Plaintiffs pain would likely be exacerbated with
heavy lifting. Tr. 482-85. If Ms. Rakestraw's opinions
are correct, Plaintiff cannot remotely perform a medium level
these significant new findings, the ALJ again concluded in a
decision of April 13, 2015 that Plaintiff possessed the
residual functional capacity for medium work. Tr. 11-21. In
reaching that conclusion, the ALJ stated that "the
treatment records failed to reveal evidence of any
significant findings or limitations." Tr. 19. The ALJ
gave "little weight" to the findings of Ms.
Rakestraw, finding that her opinions were "not supported
by the clinical findings." Tr. 18- 19. The ALJ also gave
"little weight" to the testimony of plaintiff,
finding his testimony was "not consistent with the
relatively benign clinical findings." Tr. 17. Although
recognizing that the two chart reviewers had not reviewed
Plaintiffs medical records since 2012 and Dr. Steinert had
not examined Plaintiff or seen any medical records since her
single May 2012 examination, the ALJ gave "great
weight" to their findings that Plaintiff was capable of
performing medium work. Tr. 18-19.
The ALJ's finding that "treatment records failed to
reveal evidenceof any significant findings
or limitations" is is not ...