Todd v. Social Security et al

Filing 65

ORDER adopting 60 Report and Recommendations. This action is reversed pursuant to sentence four of 42 U.S.C. 405(g) and 1383(c)(3) and is remanded to the Commissioner to take appropriate action regarding an award of DIB benefits to the plaintiff based on disability alleged to have commenced November 15, 2000, and continuing through July 22, 2004. Signed by Honorable Joseph F Anderson, Jr on 3/3/09. (jtho, )

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA B illie Jean Johnson Todd, o /b/o Joseph D. Johnson, ) C/A No.: 8:07-3557-JFA-BHH ) ) P l a i n t if f , ) v. ) ) ORDER Michael J. Astrue, ) C o m m is s io n e r of Social Security, ) ) D e f e n d a n t. ) ______________________________________ ) T h is is an action brought by the plaintiff, Billie Jean Johnson Todd,1 on behalf of her s o n , Joseph D. Johnson, pursuant to section 205(g) of the Social Security Act, as amended, to obtain judicial review of the final decision of the Commissioner of the Social Security A d m in is tra tio n denying her son's claim for disability insurance benefits (DIB) and s u p p le m e n ta l security income (SSI) under Titles II and XVI of the Social Security Act. The Magistrate Judge assigned to this action 2 has prepared a Report and Although Mrs. Todd is the claimant, and her son Joseph Johnson is deceased, the court will refer to the him as the plaintiff. The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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 to which specific objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). 1 2 1 R e c o m m e n d a tio n wherein she suggests that the Commissioner's decision to deny benefits s h o u ld be reversed under sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3), and remanded to the Commissioner for an award of DIB benefits. I n the Report and Recommendation, the Magistrate Judge provides a detailed d is c u ss io n of the undisputed and relevant medical evidence as stated by the plaintiff and the s ta n d a rd s of law. This court incorporates such without a recitation. T h e parties were advised of their right to file objections to the Report and R e c o m m e n d a tio n . Although the plaintiff did not file objections, the Commissioner filed a n o tice stating that he would not file objections to the Report. Thus, it appears the matter is rip e for review by this court. B A CK G RO U N D T h e plaintiff was 37 years old at the time he applied for DIB and SSI and 40 years old o n the date of his death. He had a high school education and past relevant work experience a s a restaurant manager, produce associate, and frozen food stocker. He alleges that he was d is a b le d since November 15, 2000 due to fibromyalgia, chronic fatigue, Hepatitis B, m ig ra in e headaches, depression, and anxiety. T h e plaintiff filed applications for DIB and SSI on January 4, 2002. His applications w e re denied initially and upon reconsideration. Before an Administrative Law Judge could h e a r his case, the plaintiff died on July 22, 2004 as a result of a narcotics overdose. The p lain tiff 's mother, Billie Jean Johnson Todd, was substituted as the claimant. 2 A hearing was held on August 23, 2004 at which Mrs. Todd, her attorney, and a v o c a tio n a l expert were present. The ALJ found that Mr. Johnson was not under a disability. T h e Appeals Council dismissed plaintiff's request to review the SSI portion of his claim, but re m a n d e d the DIB portion of his claim for further evaluation. O n July 19, 2006, another hearing was held before the ALJ who again found that the p lain tiff was not disabled. The Appeals Council adopted the ALJ's decision as final. T h e plaintiff filed this action on October 29, 2007. S TANDARD OF REVIEW The role of the federal judiciary in the administrative scheme established by the Social S e c u rity Act is a limited one. Section 205(g) of that Act provides: "The findings of the C o m m is s io n e r . . . as to any fact, if supported by substantial evidence, shall be conclusive." 4 2 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. 1 9 6 4 ) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 217); see, e.g., Daniel v. G a r d n e r, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); T y le r v. Weinberger, 409 F. Supp. 776 (E.D. Va. 1976). This standard precludes a de novo r e v ie w of the factual circumstances that substitutes the court's findings for those of the C o m m is s io n e r. See, e.g., Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971); Hicks v. Gardner, 3 9 3 F.2d 299 (4th Cir. 1968). "[T]he court [must] uphold the [Commissioner's] decision e v e n should the court disagree with such decision as long as it is supported by `substantial 3 e v id e n c e.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). As noted by Judge S o b e lo f f in Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969), "[f]rom this it does not follow, h o w e v e r, that the findings of the administrative agency are to be mechanically accepted. The s ta tu to rily granted right of review contemplates more than an uncritical rubber stamping of th e administrative action." Id. at 279. "[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 [ C o m m is s io n e r's ] findings, and that his conclusion is rational." Vitek, 438 F.2d at 1157-58. T HE ALJ'S FINDINGS In making his determination that the plaintiff is not entitled to benefits, the ALJ m a d e the following findings: (1 ) T h e claimant meets the insured status requirements of the Social Security Act th ro u g h September 30, 2003, but not thereafter. T h e claimant has not engaged in substantial gainful activity since November 1 5 , 2000, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 4 1 6 .9 2 0 (b ) and 416.971 et seq.). The claimant has the following severe impairments: post traumatic stress d iso rd er (PTSD), major depressive disorder, anxiety, personality disorder, h e p a titis B, chronic fatigue syndrome, fibromyalgia and substance abuse (20 C F R 404.1520(c), 416.920(c)). The claimant does not have an impairment or combination of impairments that m e e ts or medically equals one of the listed impairments in 20 CFR Part 404, S u b p art P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 4 1 6 .9 2 0 (d ), 416.925 and 416.926). After careful consideration of the entire record, I find that the claimant has the re sid u a l functional capacity to lift and carry 20 pounds occasionally, 10 p o u n d s frequently with restrictions which required routine, repetitive tasks 4 (2 ) (3) (4) (5 ) in v o lv in g simple 1-2 step instructions, as in unskilled work and no public c o n tac t. (6 ) The claimant is unable to perform any past relevant work (20 CFR 404.1565 an d 416.965). T h e claimant was born on June 16, 1964, and was 35 years old on the alleged d is a b ility onset date, which is defined as a younger individual age 18-44. The c la im a n t died on July 22, 2004, and was age 40, which is defined as a younger in d iv id u a l. (20 CFR 404.1563 and 416.963). T h e claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964). Transferability of job skills is not material to the determination of disability b e c au s e using the Medical-Vocational Rules as a framework supports a finding th a t the claimant is "not disabled", whether or not the claimant has transferable jo b skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). Considering the claimant's age, education, work experience and residual f u n c tio n a l capacity, there are jobs that exist in significant numbers in the n atio n al economy that the claimant can perform (20 CFR 404.1560(c), 4 0 4 .1 5 6 6 , 416.960(c), 416.966). T h e claimant has not been under a "disability," as defined in the Social S e c u rity Act, from November 15, 2000, through the date of this decision (20 C F R 404.1520(g) and 416.920(g)). (7 ) (8) (9 ) (1 0 ) (1 1 ) D ISCUSSION T h e plaintiff contends that the ALJ erred in finding him not disabled. Specifically, th e plaintiff argues that the ALJ erred in (1) failing to give "controlling weight" to the p la in tif f 's treating physician; (2) failing to properly evaluate the plaintiff's credibility; (3) g iv in g controlling weight to a non-treating psychologist's opinion; (4) failing to consider the m e n ta l requirements of the plaintiff's ability to perform any kind of work on a sustained 5 b asis; and (5) concluding that the plaintiff was a drug abuser. F o r eighteen years, Dr. Willie Moseley treated the plaintiff. Dr. Moseley diagnosed h im with Post-Traumatic Stress Disorder, dysthymia, chronic pain disorder, narcissistic p e r s o n a l ity disorder, chronic fatigue syndrome, fibromyalgia, chronic migraine headaches, h e p a titis , major depression and anxiety. Dr. Moseley and the plaintiff's other treating p h ys ic ia n s opined that the plaintiff was disabled from gainful employment due to a c o m b i n a tio n of these severe physical and mental impairments. In her Report, the Magistrate Judge concludes that the ALJ lacked substantial e v id e n c e to reject Dr. Moseley's opinion as non-controlling. The Magistrate also notes that th e ALJ has not cited sufficient evidence to reject the concurrence of plaintiff's treating p h ys ic ia n s that the plaintiff is markedly limited in his functioning. T h e plaintiff died before the first hearing before the ALJ. At that hearing, the ALJ c o n c lu d e d that the plaintiff's subjective complaints were not fully credible due to evidence o f the plaintiff abusing drugs. The Magistrate Judge finds that the ALJ did not properly a p p ly the two-step process of evaluating subjective complaints outlined in Craig v. Chater, 7 6 F.3d 585, 593 (4th Cir. 1996). A s to the ALJ's consideration of the mental requirements of the plaintiff's ability to p e rf o rm any kind of work on a sustained basis, the Magistrate Judge suggests that the ALJ p ro p e rly considered and explained his conclusions and that there was no error here. In the Report, the Magistrate Judge concludes that there is substantial evidence on the 6 re c o rd to show that the plaintiff was disabled and that a remand for further proceedings w o u ld serve no useful purpose. Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987). Thus, th e Magistrate Judge opines that the Commissioner should award DIB benefits to the p la in tif f . C O N C LU S IO N A f te r a careful review of the record, including the findings of the ALJ, the briefs from th e plaintiff and the Commissioner, and the Magistrate Judge's Report, the court finds the R e p o rt provides an accurate summary of the facts and correct conclusions of law. The M a g is tra te Judge's findings are specifically incorporated herein by reference. Accordingly, this action is reversed pursuant to sentence four of 42 U.S.C. § § 405(g) a n d 1383(c)(3) and is remanded to the Commissioner to take appropriate action regarding a n award of DIB benefits to the plaintiff based on disability alleged to have commenced on N o v e m b e r 15, 2000 and continuing through July 22, 2004. IT IS SO ORDERED. March 3, 2009 C o lu m b ia , South Carolina J o s e p h F. Anderson, Jr. U n ite d States District Judge 7

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