United States District Court, D. South Carolina
Marsha O. Davis, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security, Defendant.
Richard Mark Gergel, United States District Judge
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 her claim for
Disabled Widow's Benefits. 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 November 16, 2018,
recommending that the Court affirm the decision of the
Commissioner. (Dkt. No. 20). Plaintiff filed objections to
the R & R, arguing that the opinions of Plaintiff s
treating physician were not given appropriate weight and that
the R & R had other alleged deficiencies, and the
Commissioner filed a reply. (Dkt. Nos. 22, 23). As explained
more fully below, the Court concludes that there is not
substantial evidence in the record to support the findings of
the Commissioner that Plaintiff retains the residual
functional capacity to perform light work and that jobs exist
in significant numbers in the national economy that Plaintiff
can perform. Consequently, the Court reverses the decision of
the Commissioner and remands the matter to the agency with
instructions to award benefits.
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).
Commissioner, in passing upon an application for disability
benefits, is required to undertake a five-step sequential
process. At Step One, the Commissioner must determine whether
the applicant is engaged in substantial gainful work. 20
C.F.R. § 404.1520(a)(4). If the claimant is not engaged
in substantial gainful employment, the Commissioner proceeds
to Step Two, which involves a determination whether the
claimant has a "severe medically determinable physical
or mental impairment." Id. If the claimant has
one or more severe impairments, the Commissioner proceeds to
Step Three, which involves a determination whether any
impairment satisfies one of a designated list of impairments
that would automatically render the claimant disabled. Where
a claimant has one or more severe impairments but none meet
the requirements of the listed impairments, the Commissioner
must proceed to Step Four, which involves a determination of
the claimant's residual functional capacity
("RFC"). Id. The Commissioner then
proceeds to Step Five to determine if "work ... exists
in significant numbers either in the region where [the
claimant] lives or in several regions of the country"
that the claimant can perform in light of her RFC.
Id. At Step Five, the burden shifts to the
Commissioner to "show that the claimant retains the
capacity to . .. perform work activity that this specific
type of job exists in the national economy." Grant
v. Schweiker, 699 F.2d 189, 191 (4th Cir.
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. §§ 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). Further, the opinions of non-examining
sources and state agency medical consultants must be weighed
under the same standards of the Treating Physician Rule,
including the source's "medical specialty and
expertise . . ., the supporting evidence in the case record,
supporting explanations . .. and other factors relevant to
the weighing of opinions." Id. §§
matter arises out of an application for Disabled Widow's
Benefits by a 50 year old claimant in which there is no
dispute that she suffers from multiple severe impairments
which have significantly limited her capacity to perform
gainful work under the Social Security Act. The
Administrative Law Judge ("ALJ") found that due to
Plaintiffs severe impairments of fibromyalgia, obesity, and
lumbar degenerative disc disease, she is limited to a reduced
range of light work, the lowest level of functional capacity
that would not result in a finding of disability.
The critical area of difference between the ALJ and
Plaintiffs long-serving treating physician, Dr. Vesna
Solheim, concerns Plaintiffs capacity to stand and walk. Dr.
Solheim has opined that Plaintiff "is limited to
standing and walking for no more than two hours during an
eight hour work day." Tr. 73, 609. The ALJ found that
Plaintiff can perform a reduced range of light work, which
requires the claimant to have the capacity to stand six hours
in an eight hour workday. SSR 83-10, 1983 WL 31251 at *5-6
(1983). A claimant lacking the capacity to stand six hours in
an eight hour workday is limited to sedentary work, which,
due to Plaintiffs age, would render her disabled under Social
Security Act regulations. 20 C.F.R. Part 404, Subpart P,
The Commissioner's finding that Plaintiff has the
capacity to perform a reduced range of light work is not
supported by substantial evidence.
essential element of light duty is the claimant's
capacity to stand or walk at least six hours in an eight hour
day. Despite the critical nature of the issue of Plaintiff s
capacity to stand and walk, the decisions of the ALJ and the
Appeals Council provide little attention to the record
evidence on this issue. Indeed, the ALJ's decision fails
to even mention the opinion of Dr. Solheim that Plaintiff was
limited to two hours of standing in an eight hour day. Tr.
609. The Appeals Council attempted to correct this glaring
deficiency in the ALJ's decision by noting Dr.
Solheim's opinion, but criticized her for not relying on
objective medical evidence and concluding that "the
medical evidence of record reflects mild symptoms . . ."
Tr. 194. Without addressing the specific evidence in ...