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Singleton v. Berryhill

United States District Court, D. South Carolina

November 16, 2017

Norman Lee Singleton, Plaintiff,
v.
Nancy 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) 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.

         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 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).

         The 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).

         Although 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.

         Factual Background

         Plaintiff, 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.

         The 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.

         Plaintiff 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.

         Ms. 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 of work.

         Despite 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.

         Discussion

         A. The ALJ's finding that "treatment records failed to reveal evidenceof any significant findings or limitations" is is not ...


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