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Peterson v. Berryhill

United States District Court, D. South Carolina, Charleston Division

February 1, 2019

Ronald Peterson, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.



         On August 9, 2017, Plaintiff Ronald Peterson (“Plaintiff”) filed the within action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of Defendant Acting Commissioner of Social Security (the “Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) and for Supplemental Security Income Benefits (“SSI”).

         I. Procedural History

         Plaintiff first filed his DIB and SSI applications on February 15, 2011, alleging disability beginning July 15, 2007. Plaintiff's application was denied initially and he did not appeal. Plaintiff filed the underlying DIB and SSI applications on July 30, 2013, again alleging disability beginning July 15, 2007. Tr. 260-263, 266-271. Plaintiff's application was denied initially, as well as on reconsideration. A hearing was held before an Administrative Law Judge (“ALJ”) on March 2, 2016. Tr. 52. The ALJ issued his decision on April 8, 2016. Tr. 32. He determined that Plaintiff had medically determinable impairments of “proctalgia with irritable bowel syndrome, rectal pain with history of congenital rectal reconstruction, constipation and diarrhea, ” and that these impairments could reasonably be expected to cause Plaintiff's alleged symptoms. Tr 35. However, he further determined that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [Plaintiff's] symptoms [were] not entirely credible.” Tr. 40. Thus, the ALJ concluded that Plaintiff was not under a disability within the meaning of the Social Security Act. Tr. 46. Plaintiff filed a request for review of the ALJ's decision, which was denied by the Appeals Council on June 13, 2017, making the ALJ's decision the “final decision” of the Commissioner. Tr. 1.

         On March 14, 2018, Plaintiff filed his brief challenging the ALJ's decision on four grounds: (1) the ALJ failed to adequately explain his findings regarding Plaintiff's residual functional capacity, as required under Social Security Ruling (“SSR”) 96-8p; (2) the ALJ erred in finding that Plaintiff's “decreased concentration and memory impairment were not medically determinable impairments and subsequently fail[ed] to consider those impairments in the [residual functional capacity (“RFC”)] assessment”; (3) the “ALJ failed to properly assess the medical source opinion evidence”; and (4) the ALJ failed to properly consider Plaintiff's subjective complaints as required under SSR 16-3p. ECF No. 18 at 17, 18, 22, 27. The Commissioner filed her response to Plaintiff's brief on April 19, 2018. ECF No. 19.

         In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 (D.S.C.), this matter was referred to United States Magistrate Judge Mary Gordon Baker for a Report and Recommendation (“Report”). On October 17, 2018, the Magistrate Judge filed her Report recommending that the Commissioner's decision to deny benefits be affirmed. ECF No. 21. The Magistrate Judge addressed Plaintiff's first and fourth arguments together, on the basis that “Plaintiff's allegations of error largely center on the ALJ's treatment of Plaintiff's alleged limitations as a result of his rectal issues including constipation and diarrhea.” Id. at 6. As to Plaintiff's first issue, the Magistrate Judge concluded that the “ALJ thoroughly addressed the evidence in the medical record and articulated his reasoning for why the evidence supported his finding that Plaintiff's RFC need not accommodate frequent bathroom breaks.” Id. at 9. As to Plaintiff's fourth issue, the Magistrate Judge concluded that “after a thorough discussion of the record, the ALJ ultimately found Plaintiff's testimony as to the severity of his fecal urgency [] inconsistent with the available evidence, ” and that “[w]hile Plaintiff argues that there is evidence in the record to support his subjective statements regarding his fecal urgency, such reweighing of the evidence is not within the province of this Court.” Id. at 12. As to Plaintiff's third argument regarding the ALJ's assessment of his treating physician's medical opinions, the Magistrate Judge concluded that the ALJ properly explained his reasons for affording the treating physician's opinion little weight and for affording the opinions of the state medical consultants great weight, and further concluded that Plaintiff has “failed to demonstrate that the ALJ's conclusions regarding the medical opinions are unsupported by substantial evidence.” Id. at 15. Lastly, as to Plaintiff's contention that the ALJ failed to consider Plaintiff's decreased concentration and memory loss as medically determinable impairments, the Magistrate Judge disagreed and found that the ALJ's opinion includes an examination of the evidence relevant to those limitations. Id. at 16. Plaintiff filed objections to the Report on October 31, 2018, ECF No. 23, to which the Commissioner responded, ECF No. 24.

         This matter is now before the court for review of the Magistrate Judge's Report. The court is charged with making a de novo determination of any portions of the Report to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28. U.S.C. § 636(b).

         II. Standard of Review

         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Section 205(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. § 4059(g). “Substantial evidence has been defined innumerable times as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). The court must uphold the Commissioner's decision as long as it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this 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 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, and that [her] conclusion is rational.” Vitek, 438 F.2d at 1157-58.

         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, 517 (4th Cir. 1987). However, the Commissioner's denial of benefits shall be reversed only if no reasonable mind could accept the record as adequate to support that determination. Richardson v. Perales, 402 U.S. 389, 401 (1971).

         III. Applicable Law

         An individual is eligible for DIB benefits under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33, if he is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). Under Title XVI of the Act, 42 U.S.C. §§ 1381-83(c), SSI benefits are available to an individual who is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C. § 1382. An individual is determined to be under a disability only if his “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .” 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least twelve consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, for DIB benefits, the claimant must prove he was disabled prior to his date last insured. Bird v. Commissioner of Social Security Administration, 699 F.3d 337, 340 (4th Cir. 2012) (citing 42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. §§ 404.101(a), 404.131(a)).

         The Commissioner has developed the following five-step evaluation process for determining whether a claimant is disabled under the Act: (1) whether the claimant engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the impairment meets or equals the severity of an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520(a)(4)(v). Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). At step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Id. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).

         IV. Discussion

         Plaintiff was born in 1963 and was forty-four years old as of his alleged disability onset date. Tr. 260. He has a high school education and past relevant work experience as a material handler and forklift operator. Tr. 63. Plaintiff alleges disability related to a congenital condition, a result of which he was born without a rectum and underwent rectal reconstruction surgery as a child. In response to the ALJ's question asking Plaintiff to describe what happened on the date he became unable to work, Plaintiff testified, “I remember one day I was working-driving and everything, and I kept getting this pain constantly . . . .” Tr. 62. Plaintiff testified that he experiences daily rectal pain and constant rectal bleeding that abates only with pain medication, which is not always available to him. Tr. 67, 68. Plaintiff further alleges disability due to impaired concentration and memory loss. ECF No. 18 at 18.

         The ALJ found that Plaintiff met the insured status requirements of the Act through March 31, 2012; Plaintiff had not engaged in substantial gainful activity since July 15, 2007, the alleged onset date of disability; Plaintiff had severe impairments associated with history of congenital rectal reconstruction; Plaintiff did not have an impairment or combination of impairments that meets or equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1; Plaintiff has the RFC to perform less than the full range of unskilled, light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with certain exceptions; and, considering Plaintiff's age, education, work experience, and RFC, a significant number of jobs exist in the national economy that Plaintiff can perform. Tr. 34-45. Accordingly, the ALJ determined that Plaintiff is not disabled.

         A. Objection One: Assessment of Impairment at Step Two

         Plaintiff argues that the ALJ “failed to explain why Peterson's decreased concentration and memory impairment were not medically determinable impairments.” ECF No. 23 at 1. He contends that the ALJ failed to consider the physicians' documentation of “cognitive slowing, decreased concentration and memory impairment, ” which, he asserts, support his subjective report of symptoms. Id. at 2. Plaintiff objects that the Magistrate Judge similarly did not address the physicians' documentation and rather “merely repeats the ALJ's dismissal of Peterson's reported problems.” Id.

         Plaintiffs objection implicates step two of the sequential evaluation.[1] The ALJ determined that Plaintiff suffered from the following severe impairments: proctalgia with irritable bowel syndrome; rectal pain with history of congenital rectal reconstruction; constipation and diarrhea. Tr. 35. The ALJ also determined that Plaintiff suffered from the following non-severe impairments: lumbar spine pain; hypertension; and diabetes mellitus. Id. Plaintiff asserted additional complaints, which the ALJ determined were not medically determinable impairments: learning disability;[2] memory loss; dizziness; sweating; gastroesphageal reflux disease; pain in hands; arthritis; malaise; allergic rhinitis; and hypercholesterolemia. Id. Plaintiff takes issue only with the ALJ's treatment of his learning disability, which the court hereafter refers to as concentration deficit and memory loss.

         A medically determinable impairment is one that “results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 1382c(a)(3)(D), 423(d)(3). See 20 C.F.R. § 404.1508. “An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A). Rather:

there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.


         The Magistrate Judge observed that “the ALJ considered every impairment alleged by Plaintiff or present in the medical evidence in determining which impairments were severe, ” and “expressly analyzed Plaintiff's alleged ‘learning disability' and ‘memory loss,' discussing Plaintiff's statements and the medical evidence concerning these impairments.” ECF No. 21 at 16 (citing Tr. 35). The Magistrate Judge noted that “[r]elevant to Plaintiff's learning disability, the ALJ found that ‘there is no documentary evidence to indicate that the claimant was in special education classes and per his testimony, he graduated from high school and received a diploma.'” Id. The Magistrate Judge also noted that relevant to the alleged memory loss, the ALJ stated:

At the hearing, the claimant reported problems with memory loss, and when seen at MUSC in September 2014, reported problems with memory issues (Exhibit 15F, page 2); however, there is nothing in the documentary evidence indicating the claimant sought or received any treatment for memory problems, but that he reported symptoms of confusion and ...

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