Opinion
Civil No. 1:18-CV-00626
02-28-2019
CHRISTOPHER S. SHUEY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Chief Judge Conner) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff, Christopher S. Shuey ("Mr. Shuey"), seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Social Security Disability Insurance Benefits under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
This matter has been referred to the undersigned United States Chief Magistrate Judge to prepare a report and recommended disposition pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). Because the Commissioner's decision is supported by substantial evidence, we recommend that the Court affirm the decision of the Commissioner denying Mr. Shuey's claim.
II. Procedural History.
The Court refers to the administrative transcript provided by the Commissioner. See Docs. 6-1 to 6-12. On April 7, 2015, Mr. Shuey protectively filed an application for a Period of Disability and Disability Insurance Benefits contending that he became disabled on December 15, 2014. Admin. Tr. at 13. After the Commissioner denied Mr. Shuey's claim at the initial level of administrative review on June 9, 2015, Mr. Shuey requested an administrative hearing on July 8, 2015. Id. On May 2, 2017, with the assistance of counsel, Mr. Shuey testified at a hearing before Administrative Law Judge Therese A. Hardiman ("ALJ"). Id. at 34-59.
The facts of this case are well known to the parties and will not be repeated here. Instead, we will recite only those facts that bear on Mr. Shuey's claims.
The ALJ determined that Mr. Shuey had not been disabled within the meaning of the Social Security Act from December 15, 2014, the alleged onset date, through December 31, 2019, the date last insured, and so denied Mr. Shuey's application for benefits on July 20, 2017. Id. at 27. Mr. Shuey appealed the ALJ's decision to the Appeals Council on September 8, 2017, which denied his request for review on January 24, 2018. Id. at 1-4. This makes the ALJ's decision the final decision of the Commissioner and subject to judicial review by this Court.
Mr. Shuey's earnings record shows that he has acquired sufficient quarters of coverage to remain insured through December 31, 2019. Admin. Tr. at 14.
On March 19, 2018, Mr. Shuey initiated this action by filing a complaint claiming that the ALJ erred by excluding the Mental Residual Functional Capacity Assessment of Dr. Jeremy Bennett, which was submitted less than five business days before the hearing. Id. at 13. Mr. Shuey requests that the Court reverse the ALJ's decision and award him disability insurance benefits. Doc. 7 at 14. The Commissioner filed an answer and a certified transcript of the administrative proceedings. Docs. 5, 6. The parties have filed briefs, and this matter is ready for decision. Docs. 7, 8.
III. Legal Standards.
A. Substantial Evidence Review—the Role of This Court.
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether substantial evidence supports the findings of the final decision maker. See 42 U.S.C. § 405(g) (2018); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012). Substantial evidence is "more than a mere scintilla." Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "Substantial evidence 'does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). Substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Port Norris Express Co. v. Interstate Commerce Comm'n, 697 F.2d 497, 502 (3d Cir. 1982) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966)). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003) (citing Smith, 637 F.2d at 970). The question before this Court, therefore, is not whether Mr. Shuey was disabled, but whether substantial evidence supports the Commissioner's finding that he was not disabled and whether the Commissioner correctly applied the relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ.
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability to "engage in 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." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). In addition, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
"Disability insurance benefits are paid to an individual if that individual is disabled and 'insured,' that is, the individual has worked long enough and paid social security taxes." Jury v. Colvin, No. 3:12-CV-2002, 2014 WL 1028439, at *1 n.5 (M.D. Pa. Mar. 14, 2014) (citing 42 U.S.C. §§ 415(a), 416(i)(1)). "The last date that an individual meets the requirements of being insured is commonly referred to as the 'date last insured.'" Id. (citing 42 U.S.C. § 416(i)(2)). Here, the ALJ determined December 31, 2019 to be Mr. Shuey's date last insured. Admin. Tr. at 14.
In determining whether the claimant is disabled, the ALJ follows a five-step sequential-evaluation process. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience, and residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(a)(4).
The ALJ must also assess a claimant's RFC between steps three and four. The RFC is "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft, 181 F.3d at 359 n.1); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1). In making this RFC assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§ 404.1545(a)(2), § 404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents the claimant from engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once the claimant meets this burden, the burden shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform and that are consistent with the claimant's age, education, work experience, and RFC. 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requirements. Most significantly, the ALJ's decision must provide "a clear and satisfactory explication of the basis on which [the decision] rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved, and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-07. "[T]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999).
IV. The ALJ's Decision Denying Mr. Shuey's Claim.
On July 20, 2017, the ALJ denied Mr. Shuey's claim for disability insurance benefits. Admin. Tr. at 27. Applying the sequential-evaluation process, the ALJ determined that Mr. Shuey was not disabled within the meaning of the Social Security Act. Id. The ALJ first concluded that Mr. Shuey "meets the insured status requirements of the Social Security Act through December 31, 2019." Id. at 16. At step one of the sequential-evaluation process, the ALJ found that Mr. Shuey had not engaged in substantial gainful activity "since December 15, 2014, the alleged onset date." Id.
At step two of the sequential-evaluation process, the ALJ found that Mr. Shuey had degenerative joint disease of the bilateral hips, status post bilateral total hip replacements, cardiomyopathy, obsessive-compulsive disorder (OCD), generalized anxiety disorder, panic disorder, alcohol-induced anxiety disorder, and alcohol dependence as severe impairments. Id. The ALJ also found that Mr. Shuey had status post avascular necrosis, status post pulmonary embolism, post-traumatic stress disorder (PTSD), agoraphobia, bilateral hip pain, lumbar spine pain, chronic low back pain, sciatica, lower extremity numbness, and syncope as non-severe impairments because "there is no evidence that any of these conditions have either met the durational requirements of this program, or that they create any specific functional limitations regarding the claimant's ability to perform work-related activities." Id. at 17-18.
At step three of the sequential-evaluation process, the ALJ found that Mr. Shuey did not have any impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 18. More specifically, the ALJ discussed listing 12.00, and found that "[t]he severity of the claimant's mental impairment did not meet or medically equal the criteria of listing 12.04." Id. at 23. Further, the ALJ discussed sections 1.00, the musculoskeletal system, 4.00, the cardiovascular system, and 12.00, mental disorders, and found that Mr. Shuey's impairments, "while severe, considered singly and in combination, do not satisfy the requisite laboratory, clinical and/or diagnostic requirements of listing level severity." Id. The ALJ found that the evidence does not establish a serious interference for Mr. Shuey in "the ability to independently initiate, sustain, or complete activities." Id.
Between steps three and four of the sequential-evaluation process, the ALJ assessed Mr. Shuey's RFC. The ALJ found that Mr. Shuey had the RFC to perform "light work as defined in 20 CFR 404.1567(b) except the claimant could perform occasional bilateral lower extremity pushing and pulling," in addition to performing "occasional climbing, balancing, stooping, kneeling, crouching, and crawling, but never on ladders." Id. at 20. Additionally, the ALJ found that Mr. Shuey must avoid temperature extremes, humidity, vibration, fumes, and hazards, while being limited to "unskilled work activity that is low stress, defined as only occasional decision making and only occasional changes in the work setting." Id. Furthermore, the ALJ found that Mr. Shuey could "have no interaction with the public and only occasional interaction with co-workers and supervisors," in addition to requiring "a sit/stand option at the will or direction of the individual." Id.
In reaching the RFC determination, the ALJ considered Shuey's musculoskeletal and cardiac impairments and incorporated them into the RFC by limiting Shuey to light exertion limiting the amount he should push and pull, and limiting the amount of vibration and hazards he should face. Id. at 22-23. In reaching the mental RFC determination, the ALJ found that although Shuey had anxiety, panic attacks, and racing thoughts, he had "full affect, clear sensorium, normal cognition, and normal insight." Id. at 20.
The ALJ found that "while treatment records continue to show the claimant having some level of continued symptomatology, they do not fully support the level of limitation alleged by the claimant." Id. at 23. The ALJ considered Mr. Shuey's difficulties in levels of activity, leaving the house, impaired decision-making, and alcohol dependency. Id. at 20, 23, 25. The ALJ considered the testimony of Andrew Cole, Psy. D., ("Dr. Cole"), who opined that Mr. Shuey "would have no limitation with simple instruction and decisions and a moderate degree of impairment with complex instruction and decisions and responding appropriately to changes in a routine work setting." Admin. Tr. at 336; Doc 6-2 at 23. Additionally, in determining the mental RFC, the ALJ considered the State Agency mental opinion which found that Mr. Shuey "had a mild mental impairment with a moderate level of impairment in social functioning." Id. at 25.
The ALJ did not admit the opinion from Dr. Bennett, because it was received less than five business days before a hearing. Id. at 241-42. Despite not admitting it, however, the ALJ still considered the opinion of Dr. Bennett, and found that it did not contain any explanation for each of the checked limitations. Id. at 14. The ALJ found that the mental health records from Dr. Bennett "reflect normal to benign mental status findings, and do not support the level of limitation opined by Dr. Bennett." Id. Further, the ALJ found that Dr. Bennett's opinion could not "supplant the necessity of actual medically acceptable signs and laboratory findings." Id. Moreover, the ALJ found that the evidence from Dr. Bennett was an opinion, and that "there was no evidence adduced by counsel that [Shuey] sought the doctor's testimony at the hearing and in lieu of that obtained the medical source statement." Id. The ALJ also noted that Mr. Shuey's mental health records had been submitted in a timely fashion and were marked as exhibits, including those from Dr. Bennett. Id.
At step four of the sequential-evaluation process, the ALJ found that, given Mr. Shuey's RFC, he was not capable of performing his past relevant work since Mr. Shuey "is now limited to less than the full range of light, unskilled work." Id.
At step five of the sequential-evaluation process, considering Mr. Shuey's age, education, work experience, and RFC, as well as the testimony of a vocational expert, the ALJ found that there were other representative occupations—such as a mail sorter, a router, and a retail marker—that exist in significant numbers in the national economy, and that Mr. Shuey "is capable of making a successful adjustment" to these jobs. Id. at 26. The ALJ found that there were jobs available and that Mr. Shuey was capable of performing these jobs even considering his "sit stand option"; therefore, the ALJ found Mr. Shuey not disabled. Id.
V. Discussion.
A. The ALJ Did Not Err by Declining to Admit Dr. Bennett's Opinion.
Mr. Shuey argues that the mental RFC prepared by Dr. Bennett, his treating psychiatrist, "should have been admitted into evidence and benefits should have been awarded based on his conclusion." Doc. 7 at 9. Mr. Shuey argues that "an expert medical opinion should be accepted on or before the day of the hearing because the written document is submitted in lieu of testimony." Admin. Tr. at 242; Doc 7 at 11. Mr. Shuey heavily relies on 20 CFR § 935(b)(3)(iv), which states that evidence will be accepted by an ALJ if "you actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing." Doc. 7 at 16.
If a claimant wishes that written evidence be considered at the hearing, then the claimant must submit or inform the ALJ about the evidence no later than five business days before the date of the scheduled hearing. 20 C.F.R. § 404.935(a). If a claimant misses this deadline, but submits or informs the ALJ about written evidence before the hearing decision is issued, the ALJ will accept this evidence if: (1) an action of the Social Security Administration misled the claimant; (2) the claimant had a physical, mental, educational, or linguistic limitation that prevented him from submitting or informing the ALJ about the evidence earlier; or (3) some other unusual, unexpected, or unavoidable circumstance beyond the claimant's control prevented him from submitting or informing the ALJ about the evidence earlier, including, inter alia, that the claimant "actively and diligently sought evidence from a source and the evidence was not received, or was received less than 5 business days prior to the hearing." 20 C.F.R. § 404.935(b). A claimant is required to "make every effort" to ensure that all material evidence is received by the ALJ by the time of the hearing. 20 C.F.R. § 404.935; accord Flatford v. Chater, 93 F.3d 1296, 1302 (6th Cir. 1996).
The record shows that on February 15, 2017, the ALJ informed Mr. Shuey that if he wanted the ALJ to issue a subpoena for any evidence, he must submit his request no later than five business days before the hearing. Admin. Tr. at 123. On March 24, 2017, the ALJ informed Mr. Shuey "[you] must send us or let us know about all evidence at least 5 business days before your hearing." Id. at 151. Mr. Shuey's counsel requested the opinion from Dr. Bennett on April 3, 2017, and asked Mr. Shuey on April 19, 2017, to follow-up with Dr. Bennett in regards to the form. Id. at 241-42. Mr. Shuey was in receipt of the form from Dr. Bennett on April 28, 2017, and while he forwarded it to the ALJ the same day, it was submitted only two business days prior to the hearing. Id. In the hearing decision, the ALJ explained that because Dr. Bennett's opinion was received less than five business days before the hearing, she was declining to admit it. Id. The ALJ also noted that prior to the hearing, Mr. Shuey never informed her that he was "having difficulty sourcing or obtaining evidence for the hearing, nor did [Mr. Shuey] disclose the efforts taken to obtain the evidence sought." Id. at 13-14.
Mr. Shuey has not demonstrated that his late-filed evidence falls into one of the three exceptions under 20 C.F.R. §404.935(b). First, there is no evidence of any action by the Social Security Administration that misled Mr. Shuey. Second, there is no evidence that Mr. Shuey had a physical, mental, educational, or linguistic limitation that prevented him from submitting Dr. Bennett's report to the ALJ earlier. Third, there is no evidence of an unusual, unexpected, or unavoidable event beyond Mr. Shuey's control that prevented him from submitting Dr. Bennett's opinion.
A claimant's receipt of documents from a medical source less than five business days before a hearing is not by itself sufficient to establish unusual, unexpected, or unavoidable circumstances beyond the claimant's control. See, e.g., Jones v. Berryhill, No. 16-11011, 2017 WL 3726018, at *11 (D. Mass. Aug. 29, 2017) (finding assertion by claimant's counsel that he had tried to timely obtain medical records insufficient to establish unusual, unexpected, or unavoidable circumstances); Freeman v. Colvin, No. 2:14-CV-00412, 2015 WL 4041733, at *3 (D. Me. July 1, 2015) (finding that claimant had not established unusual, unexpected, or unavoidable circumstances where the claimant's counsel had represented that he had had "some difficulty" in obtaining medical records but had not explained, "let alone suppl[ied] evidence corroborating, when he became aware of the missing records, why he only then became aware of them, how soon afterward he requested them, and what efforts he thereafter made to secure them in a timely fashion"); Cf. Scates v. Comm'r of Soc. Sec., No. 1:12-CV-00408, 2014 WL 1092081, at *5 (E.D. Tenn. Mar. 17, 2014) (upholding Commissioner's decision to reject new evidence before Appeals Council where there was no evidence corroborating representation by claimant's counsel that he had timely told the ALJ about difficulties in obtaining medical records).
Moreover, while the delay in receiving the RFC assessment from Dr. Bennett might explain counsel's delay in supplying the opinion to the ALJ, it does not explain counsel's failure to inform the ALJ about the opinion earlier. See 20 C.F.R. § 404.935(b)(3) (noting that evidence may still be accepted where "some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier" (emphasis added)). Here, Shuey's attorney had requested the document from Dr. Bennett before the applicable deadline and had asked Shuey to follow up with Dr. Bennett about the document. Admin. Tr. at 241-43. Shuey has pointed to no reason why his counsel could not have informed the ALJ about these attempts to obtain the evidence prior to the deadline. See id. at 13-14 ("Prior to the hearing, neither counsel nor the claimant informed the [ALJ] that they were having difficulty sourcing or obtaining evidence for the hearing, nor did they disclose the efforts taken to obtain the evidence sought.").
Finally, even if the ALJ did err by refusing to accept Dr. Bennett's opinion into evidence, there is no evidence that the opinion would have changed the outcome of the case in any way. See, e.g., Lemire v. Colvin, No. 15-331L, 2016 WL 3166836, at *10 (D.R.I. May 4, 2016) (finding that any possible error by the ALJ in failing to accept late-submitted medical records was harmless). Here, although the ALJ did not accept the late-submitted evidence into the record for the hearing, she still considered the opinion in reaching her decision. Thus, we find that the ALJ did not err by excluding Dr. Bennett's RFC assessment.
VI. Recommendation.
Accordingly, since the ALJ did not err by excluding Dr. Bennett's RFC assessment and since Mr. Shuey has not raised any other claims of error, we recommend that the Court affirm the Commissioner's decision to deny Mr. Shuey benefits. The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve
on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 28th day of February , 2019 .
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge