Opinion
C/A No. 0:17-196-RBH-PJG
01-17-2018
Hugh D. Hardy, II, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Hugh D. Hardy, II, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In June 2013, Hardy applied for DIB and in October 2013 he applied for SSI, alleging disability beginning June 15, 2009. Hardy's applications were denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on May 27, 2015 at which Hardy, who was represented by Robertson H. Wendt, Jr., Esquire, appeared and testified. At the hearing, Hardy amended his alleged onset date to March 30, 2013. After hearing testimony from a vocational expert, the ALJ issued a decision on July 17, 2015 concluding that Hardy was not disabled from March 20, 2013 through the date of the decision. (Tr. 51-61.)
Hardy was born in 1962 and was fifty years old at the time of his amended alleged disability onset date. (Tr. 264.) He has a high school education and has past relevant work experience as an animal control technician and a hospital registrar. (Tr. 269.) Hardy alleged disability due to spinal/cervical stenosis, degeneration of the neck and spine, Von Willebrand disease, and diabetes. (Tr. 268.)
In applying the five-step sequential process, the ALJ found that Hardy had not engaged in substantial gainful activity since March 20, 2013—his amended alleged onset date. The ALJ also determined that Hardy's degenerative disc disease, status post remote anterior cervical discectomy and fusion ("ACDF"), status post ACDF and partial vertebroplasty; Von Willebrand disease; and diabetes mellitus were severe impairments. However, the ALJ found that Hardy did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found, after consideration of the entire record, that Hardy retained the residual functional capacity to
perform light work[] as defined in 20 CFR 404.1567(b) and 416.967(b) except frequently pushing and pulling bilaterally with the upper extremities, no climbing
ladders, ropes, and scaffolds, occasionally climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; frequently reaching overhead bilaterally and unlimited in other directions; frequent handling bilaterally, and avoiding concentrated exposure to extreme cold and hazards.(Tr. 55.) The ALJ found that Hardy was capable of performing past relevant work as a hospital registrar, and that this work did not require the performance of work-related activities precluded by Hardy's residual functional capacity. Therefore, the ALJ found that Hardy was not disabled from March 20, 2013 through the date of the decision.
Hardy submitted additional evidence to the Appeals Council, which denied Hardy's request for review on December 8, 2016, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-6.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Hardy raises the following issues for this judicial review:
I. The Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of the newly submitted evidence.(Pl.'s Br., ECF No. 13.)
II. The ALJ's finding that Mr. Hardy is capable of performing his "past relevant work as a hospital registrar" is not supported by substantial evidence as such work was, in fact, a "composite job" also entailing medium and heavy duties.
III. The ALJ reversibly erred by failing to properly assess Mr. Hardy's credibility.
IV. The ALJ reversibly erred by improperly weighing the medical opinion evidence of Timothy Zgleszewski, M.D., an independent medical examiner.
DISCUSSION
As explained by Hardy in his brief, his first issue stems from the fact that after the ALJ's decision, Hardy submitted new evidence to the Appeals Council consisting of a representative brief dated January 7, 2016 (Tr. 355-58); medical records from Trident Regional Medical Center dated September 14, 2015 and September 15, 2015 (Tr. 19-44); and a treating source statement dated November 9, 2015 from Dr. Sarah Brown (Tr. 8-11). Hardy argues that remand is warranted for the Commissioner to properly consider and weigh the new opinion evidence from Dr. Brown as well as the additional medical records.
The Appeals Council acknowledged and considered the representative brief; however, it found that the additional evidence did not provide a basis for changing the ALJ's decision. Further, the Appeals Council stated:
We also looked at the medical records from Trident Regional Medical Center dated September 14, 2015 and September 15, 2015, 26 pages; and treating source statement from Sarah Brown, M.D., dated November 9, 2015, 4 pages. The Administrative Law Judge decided your case through July 15, 2015. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before July 15, 2015.(Tr. 2.)
The law provides that evidence submitted to the Appeals Council with the request for review must be considered in deciding whether to grant review "if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision." Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991) (en banc) (quoting Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990)). Evidence is new "if it is not duplicative or cumulative." Id. at 96. "Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Id. When a claimant seeks to present new evidence to the Appeals Council, he is not required to show good cause for failing to present the evidence earlier. Id. at 96 n.3; cf. 20 C.F.R. §§ 404.970(b), 416.970(b).
The court notes that effective January 17, 2017, this subsection was amended to require the claimant to show good cause for not informing the ALJ about or submitting the evidence prior to the hearing. However, because the decision of the Appeals Council was issued prior to the effective date of that amendment, the court applies the prior version of the regulation in effect at the time of the Appeals Council's decision.
Furthermore, the United States Court of Appeals for the Fourth Circuit has explicitly held that "[t]he Appeals Council need not explain its reasoning when denying review of an ALJ decision." Meyer v. Astrue, 662 F.3d 700, 702 (4th Cir. 2011). In determining whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard, the court must " 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.' " Id. at 704 (alterations in original) (quoting Wilkins, 953 F.2d at 96). If the court cannot determine whether, in light of the additional evidence submitted, the Commissioner's decision is supported by substantial evidence, remand is warranted. Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits). The Meyer Court recognized, however, that in some cases the record would clearly show that the additional evidence did not cause the ALJ's decision to be unsupported by substantial evidence. See id. (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996)).
According to Hardy, the new evidence warrants remand for further consideration under controlling law. In light of the circumstances and contents of this record, the court is constrained to agree that remand is warranted. The court finds that the Appeals Council erred in finding that the new opinion evidence signed by Dr. Brown did not relate to the period on or before the date of the ALJ's decision. Although Dr. Brown's opinion was dated after the ALJ's decision and portions of the opinion appear to indicate new developments from a recent evaluation, other portions of the opinion clearly relate to the period on or before the date of the ALJ's decision because Dr. Brown's opinion indicates that the functional limitations she opined have existed since March of 2013. Further, her opinion states that she is the primary care physician for Hardy and has treated him for over ten years. Additionally, she opines that the findings of the Independent Medical Examiner—findings that the ALJ considered and discounted—were consistent with Dr. Brown's clinical findings and treatment of Hardy. Thus, this opinion clearly encompasses the relevant time period. Wilkins, 953 F.2d at 95-96; see Reichard v. Barnhart, 285 F. Supp. 2d 728, 733 (S.D.W. Va. 2003) (stating that the requirement that new evidence must relate to the period on or before the date of the ALJ's decision "does not mean that the evidence had to have existed during that period. Rather, evidence must be considered if it has any bearing upon whether the Claimant was disabled during the relevant period of time."); cf. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 345 (4th Cir. 2012) (holding that the Commissioner "must give retrospective consideration to medical evidence created after a claimant's last insured date when such evidence may be 'reflective of a possible earlier and progressive degeneration' "). Further, the court finds that this evidence is not cumulative or duplicative, and in fact, appears to address some of the reasons offered by the ALJ in considering Hardy's application. For example, in discounting the opinion of the independent medical examiner (Dr. Timothy Zgleszewski), the ALJ observed that he was not a treating source and found his findings were not based on independent examination findings. The ALJ also observed that Hardy had not offered any opinion evidence from a treating source. (See Tr. 59.) Accordingly, this evidence from Dr. Brown, if properly considered, could impact the weight given to the opinion of Dr. Zgleszewski. It also provides an opinion from a treating source; therefore, this evidence could also impact Hardy's residual functional capacity assessment. Accordingly, the court finds that this new opinion evidence is material, and without analysis of this evidence the court cannot determine whether the ALJ's decision is supported by substantial evidence. See Wilkins, 953 F.2d at 96 ("Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome."); see also Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits).
Hardy also argues that the new medical evidence, which included a new MRI of the cervical spine and of the thoracic spine, is material because it shows progression of his impairments since 2013 and the progression "cannot reasonably be assumed to have simply taken place in the short period between the ALJ's decision and the creation of the documents." (Pl.'s Reply Br. at 3, ECF No. 16 at 3.) In light of the foregoing, the court need not reach this argument; however, it may be presented on remand, if necessary.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Hardy's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Hardy may present his remaining arguments concerning the ALJ's alleged errors in finding Hardy could return to his past relevant work, in evaluating the opinion evidence, and in evaluating Hardy's credibility on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. January 17, 2018
Columbia, South Carolina
/s/
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).