United States District Court, D. South Carolina
BRENDA A. COVINGTON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.
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.).
applied for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) 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).
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
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
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.”
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
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).
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.
review of the evidence and testimony in the case, the ALJ
determined that, although Plaintiff does suffer from the
“severe” impairments 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,
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).
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.
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. 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.
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. 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. § 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 ...