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Davis v. Berryhill

United States District Court, D. South Carolina

December 27, 2018

Marsha O. Davis, Plaintiff,
Nancy Berryhill, Acting Commissioner of Social Security, Defendant.


          Richard Mark Gergel, United States District Judge

         Plaintiff 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.

         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).

         The 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. 1983).

         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 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).

         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). 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. §§ 404.1527(e)(2)(ii).


         This 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.

         Tr. 16. 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, Appendix 2.

         A. The Commissioner's finding that Plaintiff has the capacity to perform a reduced range of light work is not supported by substantial evidence.

         An 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 ...

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