Opinion
Case No. 1:14-cv-41
02-03-2015
MARILYN E. COPENHAVER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 11-19) (ALJ's decision)).
I.
Plaintiff filed her application for SSI on July 20, 2010, alleging disability beginning on August 1, 2003. (Tr. 100-03). Plaintiff alleges that she is disabled because of a herniated disc in her neck and back and arthritis in her hips and hands, endometriosis, a tumor in her head, and depression. (Tr. 13, 26). This claim was denied initially (Tr. 46) and upon reconsideration (Tr. 51). The ALJ held an administrative hearing on July 9, 2012, at which time Plaintiff, who was represented by counsel, and a vocational expert ("VE") testified. (Tr. 11, 21-43). On August 27, 2012, the ALJ issued a decision denying benefits. (Tr. 11-20). The Appeals Council denied Plaintiff's request for review on November 19, 2013 (Tr. 1-4), rendering the ALJ's decision the final decision of the Commissioner. Pro se Plaintiff now seeks judicial review pursuant to Section 205(g) of the Act. 42 U.S.C. § 405(g), 1383(c)(3).
Plaintiff is 50 years old. (Tr. 25). Plaintiff has a high school education and no relevant work experience. (Tr. 25, 38).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since July 20, 2010, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative disc disease of the cervical and lumbar spine and depression (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except that she can only occasionally climb ramps and stairs, stoop, and crouch. The claimant has no capacity for climbing ladders, ropes, or scaffolds and is limited to occasional overhead reaching with both upper extremities. The claimant retains the ability to perform three and four step tasks in situations where duties are relatively static and changes can be explained.
5. The claimant has no past relevant work (20 CFR 416.965).(Tr. 13-19).
6. The claimant was born on September 13, 1964 and was 45 years old, which is defined as a younger individual age 18-44, on the date the application was filed. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work. (20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since July 20, 2010, the date the application was filed (20 CFR 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to SSI. (Tr. 20).
Plaintiff argues that the Appeals Council did not properly consider "new and material" evidence that she submitted after the ALJ issued her decision.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
Neither party presented the facts, so the Court adopts facts from the ALJ's decision.
The medical record confirms that the claimant has measurable work limitations due to degenerative disc disease of the cervical and lumbar spine. The record also indicates that Plaintiff was recently diagnosed with nephrotic syndrome marked by significant proteinuria. (Tr. 14). However, there is no clear indication that this diagnoses resulted in any symptoms or affected her ability to function in any way. (Id.)
Nephrotic syndrome is a nonspecific kidney disorder.
Proteinuria means the presence of an excess of serum proteins in the urine.
In addition to physical impairments, the claimant has been found to have a pain disorder due to both psychological factors and her general medical condition, more specifically identified as depression. (Tr. 14). Plaintiff's depression imposes additional and measurable work limitations and to constitute a severe psychological impairment. (Id.) Although Plaintiff was also diagnosed with borderline intellectual functioning, there is no indication in the record that she has work limitations as a result of diminished intelligence or that her borderline intellectual functioning should be considered a severe impairment. (Id.)
In social functioning, Plaintiff has mild difficulties. Although the psychologist who reviewed the record found no difficulty in this area, and the consultative examining psychologist concluded that Plaintiff is not impaired in her ability to relate to others, from Plaintiff's testimony it is clear that she has a very limited social life. (Tr. 15). She stays at home most of the time and only visits her mother once per week. (Id.)
With regard to concentration, persistence, and pace, Plaintiff has moderate difficulties. This was the finding of the psychologist who reviewed the record on behalf of the administration in November 2010. (Tr. 15). The consultatively examining psychologist confirmed that Plaintiff has a moderately impaired ability to maintain her concentration and attention. (Tr. 15). Plaintiff testified that she has a difficult time remaining on task. (Id.) The record as a whole supports finding moderate difficulty in this area. (Id.)
Plaintiff has no past relevant work experience, and it cannot be assumed on the basis of her very limited employment history that she would be working if she could. (Tr. 16). Although the objective medical record establishes that Plaintiff has spinal deformities to account for a certain level of pain and discomfort in the back and neck, these deformities are not of such magnitude that they would be expected to produce the debilitating level of discomfort described by Plaintiff. (Id.) Prior to being involved in a motor vehicle accident in April 2010, Plaintiff already had complaints of lower back pain. (Id.) However, an MRI of the lumbar spine in December 2007 showed no stenosis or disc herniation. (Id.) Plaintiff's main treating physician at that time, Mitchell Simons, MD, reported in July 2010 that Plaintiff "has a very exaggerated response even to light touch" along with some possible positive Waddell findings. (Id.) At the time, Plaintiff had already established a pattern of refusing to follow recommended treatment, and Dr. Mitchell had expressed concern over her described level of pain in light of the level of pain medication she was receiving. (Id.) He specifically noted that Plaintiff appeared to be exclusively focused on the fact that "she seems to want more narcotics." (Id.)
Waddell's signs are a group of physical signs which may indicate non-organic or psychological components to chronic low back pain. Historically, Waddell signs have been used to detect malingering.
A physician who reviewed the record on behalf of the administration in December 2010 reported that Plaintiff is now status post cervical fusion and has degeneration of the lumbar spine resulting in her being limited to light exertional work where she can only occasionally climb ramps and stairs, stop and crouch and has no capacity of climbing ladders, ropes, or scaffolds. (Tr. 17). The reviewing physician found that Plaintiff was limited to occasional overhead reaching with both upper extremities. (Id.) This assessment was affirmed by a second reviewing state agency physician in My 2011. (Id.)
B.
Plaintiff argues that the Appeals Council erred in failing to properly consider "new and material" evidence she submitted after the ALJ issued her decision. The additional material that Plaintiff submitted, more than one year after the ALJ issued her written decision, is related to a later time period, so the Appeals Council properly denied Plaintiff's request for review.
After the ALJ issued her August 27, 2012 written decision, Plaintiff submitted additional documentation to the Appeals Council. This documentation consisted of medical evidence from The Christ Hospital dated between May 15, 2013 and May 17, 2013, as well as medical evidence from The Christ Hospital Medical Specialist II, LLC, dated May 15, 2013 through September 10, 2013. (Tr. 2). This additional medical documentation indicates that Plaintiff was diagnosed with multiple myeloma in May 2013, nearly nine months after the date of the ALJ's decision. The Appeals Council will only review new and material evidence that was not before the ALJ where it relates to the period on or before the date of the ALJ's decision. 20 C.F.R. § 416.1470(b). In this case, the Appeals Council found that the additional evidence did not affect the decision about whether Plaintiff was disabled beginning on or before August 27, 2012, because the additional medical evidence was related to a later time. (Tr. 2). The Appeals Council denied Plaintiff's request for review, and informed Plaintiff that if she wished the Agency to consider whether she was disabled after August 27, 2012, she would need to apply again. (Tr. 2).
Multiple myeloma is cancer of the plasma cells. Multiple myeloma is considered incurable but treatable.
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Evidence that was not before the ALJ cannot be considered when determining whether the ALJ's decision is supported by substantial evidence. Foster, 279 F.3d at 357. However, a reviewing court may remand a case for consideration of additional evidence submitted to the Appeals Council if the party seeking remand proves that the additional evidence is new and material, and that the party had good cause for her failure to incorporate the additional evidence into the record during the administrative hearing. 42 U.S.C. § 405(g).
When an ALJ renders the final decision of the Commissioner, additional evidence submitted to the Appeals Council before or after the Appeals Council denied review should be considered only for the purposes of a sentence six remand. See, e.g., Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993). Sentence Six of Section 405(g) provides that the Court "may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding[.]"
Thus, Section 405(g) imposes three requirements for a Sentence Six remand: (1) the evidence must be new; (2) the evidence must be material; and (3) the plaintiff must show good cause exists for her failure to include the evidence in the prior proceeding. Delgado v. Comm'r of Soc. Sec., 30 F. App'x 542, 549 (6th Cir. 2002). The good cause requirement is satisfied if there is a "valid reason" for the failure to obtain evidence prior to the hearing. Oliver v. Sec'y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986). The additional evidence is material if there is a "reasonable probability" that the Commissioner "would have reached a different disposition of the disability claim if presented with the new evidence." Sizemore v. Sec'y of Health & Human Services, 865 F.2d 709, 711 (6th Cir. 1988). Evidence is "new" if it was not available to the claimant at the time of the administrative proceeding. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).
Since the additional evidence was not before the ALJ at the time of her decision, this Court may not consider it for purposes of substantial evidence review. Melkonyan v. Sullivan, 401 U.S. 89, 98 (1991). Instead, the Court may only determine whether the Appeals Council committed legal error when it considered the additional evidence and found that, because this information was about a later time, it did not affect the ALJ's decision about whether Plaintiff was disabled beginning on or before August 27, 2012. (Tr. 2).
The additional evidence submitted to the Appeals Council in this case was "new" but it is not "material" as it does not relate to the relevant time period. Specifically, the new evidence is all dated on or after May 2013, nine months after the ALJ issued her decision. Plaintiff appears to argue that although she was not diagnosed with multiple myeloma until May 2013, the evidence constitutes a retroactive diagnosis of symptoms she had prior to the ALJ's issuance of her written decision. However, this is not the case.
The evidence indicates that Plaintiff's condition worsened in early 2013, culminating in a diagnosis of multiple myeloma as of May 2013. (Doc. 15 at 3). Specifically, in May 2012, just three months before the ALJ issued her written decision, Plaintiff's lab results were "negative for any myeloma proteins." (Tr. 399). However, the record does indicate that Plaintiff had kidney problems and high levels of proteinuria at that time. (Tr. 397-99). Giving Plaintiff the benefit of the doubt, she may argue that the evidence of her kidney disease and elevated levels of proteinuria as of May and June 2012 indicates that she suffered from undiagnosed myeloma at this time. (Tr. 397-99). However, although Plaintiff had diagnostically-proven significant proteinuria at that time, there was no indication of the presence of myeloma, and, in fact, there were laboratory findings that myeloma was not present at that time. (Tr. 399). The fact that her condition worsened, and that she developed multiple myeloma the following year, does not dictate a different result in this case. As the Appeals Council properly advised Plaintiff, she would need to apply for disability again in order for the Agency to determine whether she became disabled sometime after August 27, 2012. (Tr. 2).
Accordingly, the Appeals Council did not err when it considered the newly submitted evidence post-dating the ALJ's written decision and found that, because this information was about a later time, it did not affect the decision as to whether Plaintiff was disabled at any time prior to August 27, 2012. Strong v. Soc. Sec. Admin., 88 F. App'x 141, 846 (6th Cir. 2004) ("Claimant simply failed to present any contemporaneous medical evidence of disability form the relevant time period."). The agency's final decision is supported by substantial evidence and this Court declines to remand.
III.
For these reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Marilyn Copenhaver was not entitled to supplemental security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED.
The Clerk shall enter judgment accordingly, whereupon, as no further matters remain pending for the Court's review, this case is CLOSED in this Court. Date: 2/3/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge