Cowin v. Berryhill

• Decision Date: 23 February 2017
• Docket Number: Civil Action No. 6:15-3625-TMC
• Parties: Stephanie Marie Cowin, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of South Carolina

Stephanie Marie Cowin, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

Civil Action No. 6:15-3625-TMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

February 23, 2017

ORDER

The plaintiff, Stephanie Marie Cowin ("Cowin"), brought this action pursuant to the Social Security Act ("SSA"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner"),¹ denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before this court is the magistrate judge's Report and Recommendation ("Report"), recommending the court to affirm the Commissioner's decision. (ECF No. 23).² Cowin filed objections to the Report (ECF No. 25), and the Commissioner responded to those objections (ECF No. 26). Accordingly, this matter is now ripe for review.

BACKGROUND

Cowin applied for DIB and SSI on November 27, 2012, alleging disability beginning on November 5, 2010. Cowin's application was denied initially and on reconsideration. OnFebruary 5, 2015, an Administrative Law Judge ("ALJ") heard testimony from Cowin and a vocational expert. On March 27, 2015, the ALJ issued a decision denying Cowin's claim.

In his decision, the ALJ found that Cowin suffered from the following severe impairments: degenerative disc disease of the lumbar and cervical spine. (ECF No. 10-2 at 24). The ALJ found that, despite Cowin's limitations, she was capable of performing past relevant work as a cashier II and pre-press operator (ECF No. 10-2 at 33). Cowin sought review of her case by the Appeals Council. The Appeals Council denied Cowin's request for review, making the ALJ's decision the final decision of the Commissioner. This action followed.

STANDARD OF REVIEW

The federal judiciary has a limited role in the administrative scheme established by the SSA. Section 405(g) of the Act provides, "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 . . . 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). Thus, in its review, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

However, "[f]rom this it does not follow . . . 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 agency." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Rather, "the courts must not abdicate their responsibility to givecareful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that this conclusion is rational." Vitek, 438 F.2d at 1157-58.

DISCUSSION

In her objections, Cowin contends that the magistrate judge erred by finding that substantial evidence supported the ALJ's (1) reciprocal functional capacity ("RFC") analysis, (2) evaluation of the consultative examinations, and (3) credibility determination of Cowin.

I.

First, Cowin alleges that the ALJ erroneously cherry-picked evidence in order to support her RFC finding and failed to account for an assistive device in the form of a wheelchair or cane. Cowin asserted that her symptoms were not improving, but instead were "waxing and waning" and that the ALJ failed to explain how an individual with such symptoms could sustain work. (ECF No. 25 at 2). However, the record indicates the ALJ did not cherry-pick evidence to support her conclusion, rather, she weighed both positive and negative findings in the medical record, discussing doctor examinations and records spanning from 2009 to 2015. She also considered additional evidence such as Cowin's daily activities in order to conclude that Cowin retained the ability to perform light work with the ability to alternate standing or sitting at thirty-minute intervals; no left-leg foot control operation; only occasional climbing of ramps or stairs, balancing, stooping, kneeling or crouching; no climbing of ladders, ropes, or scaffolds; no crawling; and avoidance of exposure to vibration, hazardous machinery, unprotected heights and uneven terrain. (ECF NO. 10-2 at 27-33).

The inquiry before the court is whether the ALJ's determination was supported by substantial evidence. See Craig, 76 F.3d at 589. Pursuant to the above description, the courtfinds that the ALJ properly explained the type of work a person with Cowin's symptoms could sustain and supported the explanation with substantial evidence.

Furthermore, Cowin's allegation that the ALJ failed to account for an assistive device in the RFC assessment is without merit. Specifically, Cowin asserts that the ALJ improperly failed to acknowledge that consultative examiner Dr. Schacher's opinion³ noted, "ambulation assistive device - no but needs one" in her RFC analysis. However, as the magistrate judge detailed, the ALJ specifically mentioned that the claimant "notes occasional reliance on a cane or wheelchair; yet the medical evidence of record fails to show that such aids are medically necessary, and a Cooperative Disability Investigation (CDI) report indicates the claimant was observed to ambulate in public without her aids, despite occasionally using them." (ECF No. 10-2 at 31).

The ALJ discussed and weighed Dr. Schacher's opinion multiple times throughout her RFC analysis. (ECF No. 10-2 at 29 and 32). The fact that Dr. Schacher's note about an ambulation assistive device was not specifically mentioned does not cause the ALJ's analysis to be deficient. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (stating that "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision"). Rather, an ALJ "need only 'minimally articulate' his reasoning so as to 'make a bridge' between the evidence and his conclusions." Jackson v. Astrue, C.A. No. 8:08-cv-2855, 2010 WL 500449, at *10 (D.S.C. Feb. 5, 2010) (quoting Fischer v. Barnhart, 129 Fed. App'x 297, 303 (7th Cir. 2005)). "The touchstone for determining what evidence must be addressed is whether the evidence is so material that failing to address it would prevent the court from determining if the ALJ's decision was supported by substantial evidence." Woodbury v. Colvin,C.A. No. 9:15-CV-2635-DCN, 2016 WL 5539525, at *3 (D.S.C. Sept. 30, 2016). See also Bowen Transp. Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (stating "[w]hile [the court] may not supply a reasoned basis for the agency's action that the agency itself has not given, . . . [the court] will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned."). In this case, it is sufficiently apparent that by examining the medical record (and explicitly discussing Dr. Schacher's opinion multiple times), the ALJ considered Dr. Schacher's complete opinion along with the rest of the medical reports to conclude that, as a whole, the record did not suggest that Cowin needed an assistive device.

However, even if the ALJ should have mentioned Dr. Schacher's note in her discussion, failure to do so was, at most, harmless error.

While the general rule is that "an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained," SEC v. Chenery Corp., 318 U.S. 80, 95 (1943), reversal is not required when the alleged error "clearly had no bearing on the procedure used or the substance of the decision reached," Massachusetts Trs. of E. Gas & Fuel Associates v. United States, 377 U.S. 235, 248 (1964). Accord In re Watts, 354 F.3d 1362, 1370 (Fed. Cir. 2004) (stating that the Chenery principle "does not obviate the need to consider the issue of harmless error"); Nazaraghaie v. INS, 102 F.3d 460, 465 (10th Cir. 1996) (concluding that the BIA's alleged failure to consider certain evidence was harmless error since "the result in this case would be no different"); Sahara Coal Co. v. Office of Workers' Comp. Programs, 946 F.2d 554, 558 (7th Cir. 1991) (noting that "harmless-error doctrine is available in judicial review of administrative action; it is an exception to the Chenery principle").

Ngarurih v. Ashcroft, 371 F.3d 182, 190 n. 8 (4th Cir. 2004). In this case, the ALJ noted that none of Cowin's "treating or examining physicians issued a medical opinion or medical source statement concerning the claimant's impairments or any resulting limitations." (ECF No. 10-2 at 32). Accordingly, as the record shows, Cowin's treating physicians did not prescribe any assistive devices and Cowin admitted that the assistive devices that she used on occasion werenot prescribed. (ECF No. 10-2 at 27, 93, 103). Multiple treating physicians concluded that Cowin's condition could be adequately managed with medication. (ECF No. 10-2 at 26-27). The sole evidence supporting Cowin's need for an assistive device was her own testimony, which the ALJ found not to be credible (ECF No. 30),⁴ and Dr. Schacher's opinion, which the ALJ gave limited weight based on mixed findings and findings inconsistent with the record (ECF No. 32).⁵ Moreover, Dr. Schacher failed to provide a basis for the opinion or explain circumstances under which the cane or wheelchair would be necessary, as required by SSR 96-9p. SSR 96-9p, 1996 WL...