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Covington v. Berryhill

United States District Court, D. South Carolina

June 20, 2019

BRENDA A. COVINGTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

         Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)[1] on May 22, 2015 (protective filing date), alleging disability beginning October 16, 2014, due to a bulging disc, neck and shoulder pain, and high cholesterol. (R.pp. 16, 200, 207, 227). Plaintiffs claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on November 16, 2017. (R.pp. 34-72). The ALJ thereafter denied Plaintiff's claims in a decision issued February 7, 2018. (R.pp. 16-28). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).

         Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the Court should remand her case for further administrative proceedings or for an award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by ‘substantial evidence.'” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Discussion

         A review of the record shows that Plaintiff was fifty-one years old on her alleged onset of disability date, and fifty-four years old at the time at the time of the ALJ's decision. She has a high school education and a college degree, but has no past relevant work experience. (R.pp. 26, 58, 68, 200, 228). In order to be considered “disabled” within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.

         After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the “severe” impairments[2] of obesity, degenerative disc disease, bipolar disorder, anxiety disorder, and major joint dysfunction (R.p. 18), she nevertheless retained the residual functional capacity (RFC) to perform medium work, [3] with limitations of only frequently reaching overhead to the left and right, climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; occasionally climbing ladders, ropes, or scaffolds; and occasional exposure to unprotected heights, moving mechanical parts, humidity and wetness, dusts, odors, fumes, and pulmonary irritants. The ALJ also found that Plaintiff had the mental capacity to frequently respond appropriately to supervisors, co-workers, and the public; that she would be off task for five percent of an eight-hour workday in addition to normal breaks; and would be absent from work for one day each month. (R.p. 21). Although Plaintiff had no past relevant work experience (R.p. 26), the ALJ obtained testimony from a vocational expert (VE) and found at step five that Plaintiff could perform jobs existing in significant numbers in the national economy with her limitations, and thus was not disabled during the time period at issue. (R.pp. 26-27).

         Plaintiff asserts that in reaching this decision the ALJ failed to properly assess the medical source opinion evidence, failed to properly explain his RFC findings, and erred in his evaluation of her subjective symptomology, including by failing to properly consider her inability to afford treatment. Specifically with respect to the opinion evidence, Plaintiff argues that the ALJ failed to fully consider the entire opinion of, and failed to assign a specific weight to the opinion of, physical therapist (PT) Chris Ballew. Plaintiff also alleges that the ALJ erred in according little weight to the opinions of the state agency medical consultants where they were supported by the medical evidence and consistent with other opinion evidence. The Commissioner contends that the ALJ properly assigned only “some weight” to PT Ballew's opinion and “little weight” to the opinions of the state agency physicians, and further argues that even if Plaintiff could only perform light work, any error would be harmless because the VE also identified three light jobs that Plaintiff could perform. However, after careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly evaluate the opinion evidence, thereby requiring a remand of this case for additional review.

         The law applicable to this case provides that a “treating” physician's opinion is ordinarily entitled to great weight; see Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996)[Noting importance of treating physician opinion]; is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. §§ 404.1527, 416.927. See SSR 96-2p.[4] However, in this case, while various medical records, including Plaintiff's primary case records, are discussed, the ALJ does not evaluate or give any weight to opinions from any treating physicians. Instead, the ALJ weighed the opinions from nurse practitioner (NP) Anna Moak of the Pain Center, PT Ballew, and the state agency medical consultants. In reaching his decision, the ALJ stated that he gave significant weight to an opinion from NP Moak (given a few days after Plaintiff's alleged onset date of disability), some weight to the opinion of PT Bellow, and little weight to the opinions of the state agency physicians. (R.pp. 26-27).

         Concededly, the ALJ was not required to assign the opinions of PT Ballew or NP Moak any particular weight, because nurse practitioners and physical therapists were not “acceptable medical sources” under the regulations applicable at the time of Plaintiff's application for benefits.[5] Even so, such opinions may be considered by the ALJ under the same factors as an acceptable medical source. See 20 C.F.R. §§ 404.1513(a), (d)(2013), 404.1502 (2011); SSR 06-03p; Craig v. Chater, 76 F.3d at 590. Moreover, with regard to the opinions of PT Ballew and NP Moak, the law applicable to this case provides that, regardless of the source, the Commissioner should evaluate every medical opinion received; 20 C.F.R. ยง 404.1527(c); and in weighing these opinions, the ALJ is instructed to apply the same factors applicable to treating medical sources to all medical opinions, including those from consultative or one-time examiners. These factors include: (1) the examining relationship between the claimant and the medical source; (2) the treatment relationship between the claimant and the medical source, including the length of the treatment relationship, frequency of treatment, and the nature and extent of the treatment relationship; (3) the supportability of the medical source's opinion; (4) the consistency of the opinion with other evidence in the record; (5) the specialization of the source ...


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