Opinion
C/A No. 0:17-3089-DCC-PJG
12-18-2018
Sheronda L. Parker, 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, Sheronda L. Parker, 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 her 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 reversed and the case remanded.
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 her past relevant work; and
(5) whether the claimant's impairments prevent her 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 she is unable to return to her past relevant work because of her 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 October 2013 and August 2016, Parker applied for DIB and SSI, respectively, alleging disability beginning February 7, 2011. Parker's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on September 23, 2016 at which Parker, who was represented by J. Kory Strain, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on April 10, 2017 concluding that Parker was not disabled from February 7, 2011 through the date of the decision. (Tr. 16-31.)
Parker was born in 1969 and was forty-one years old at the time of her alleged disability onset date. She has a high school education and has past relevant work experience as a teacher, a manager of a commercial business, and an instructor/trainer. (Tr. 30, 338.) Parker alleged disability due to PTSD; anxiety and panic attacks; depression; severe back pain; left arm, hand, and wrist pain; diabetes; migraines; a neck injury; nerve damage in her hand; bipolar disorder; and neuropathy. (Tr. 337.)
In applying the five-step sequential process, the ALJ found that Parker had not engaged in substantial gainful activity since February 7, 2011—her alleged onset date. The ALJ also determined that Parker's degenerative disc disease, diabetes mellitus, depression, PTSD, organic mental disorder, migraines, and traumatic injury to the left upper extremity were severe impairments. However, the ALJ found that Parker 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 Parker retained the residual functional capacity to
perform less than a full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). Light exertional work is described by the Commissioner of the Social Security Administration as requiring lifting/carrying of up to 20 pounds occasionally and 10 pounds frequently and standing, walking, and sitting for six hours in an 8-hour workday. The claimant could never operate controls with the left upper extremity or climb ladders/ropes/scaffolds. She could frequently balance and occasionally climb ramps/stairs, stoop, kneel, crawl, and crouch. She could occasionally reach overhead and occasionally perform fingering/handling with the non-dominant left upper extremity. She could concentrate sufficiently in two-hour increments to perform simple, repetitive tasks with occasional contact with the general public and coworkers. The claimant could not work in an environment where there is fast-paced production required.(Tr. 22.) The ALJ found that Parker was unable to perform any past relevant work, but that, considering Parker's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Parker could perform. Therefore, the ALJ found that Parker was not disabled from February 7, 2011 through the date of the decision.
The Appeals Council denied Parker's request for review on September 18, 2017, 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 Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); 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; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). 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]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). 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
Parker raises the following issues for this judicial review:
I. The Appeals Council committed reversible error by refusing to consider new, material, chronologically relevant evidence submitted by Ms. Parker.(Pl.'s Br., ECF No. 14.)
II. The ALJ failed to properly evaluate the medical opinion evidence of record.
III. The ALJ's evaluation of Ms. Parker's subjective complaints is clearly not sustainable.
IV. The ALJ relied on the testimony of a vocational expert, elicited in response to questioning based on unsustainable findings, and thus the ALJ failed to carry the Commissioner's burden at step five of the sequential evaluation process.
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claim was filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Parker's applications for benefits were filed, unless otherwise specified.
Parker's first issue stems from the fact that after the ALJ's decision, Parker submitted new evidence to the Appeals Council consisting of a letter from a provider, a medical source statement from a provider, and medical records from Dorchester County Mental Health dated September 28, 2016 through January 25, 2017. Parker argues that, based the medical records from Dorchester County Mental Health (Tr. 42-77), remand is warranted for the Commissioner to properly consider and weigh this evidence. Parker does not challenge the Appeals Council's findings with regard to the letter and the medical source statement.
With regard to the medical records, the Appeals Council stated that "[w]e find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence." (Tr. 2.) No further explanation was provided.
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. Effective January 17, 2017, the claimant is required to show good cause for not informing the ALJ about or submitting the evidence prior to the hearing. See 20 C.F.R. §§ 404.970(b), 416.1470(b).
In this case, the parties do not appear to dispute that the additional evidence relates to the period on or before the date of the ALJ's decision.
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)).
Here, the Appeals Council appears to have determined that the evidence at issue was not "material" by finding that the evidence did "not show a reasonable probability that it would change the outcome of the decision." (Tr. 2.) The Commissioner takes the same position in her responsive brief and argues that the "Dorchester County Mental Health notes are not material because they are unsupported by, and inconsistent with, substantial evidence of record and would not have been entitled to significant weight." (Def.'s Br. at 14-15, ECF No. 16 at 14-15.) The Commissioner concedes that these additional notes "described an individual with abnormal mental status evaluations such as flat affect, disorganized thought content, poor memory, and impaired judgment." (Id. at 15.) However, the Commissioner attempts to cast these notes as an "outlier" and in contrast to the "plethora of normal mental status evaluations." (Id.) The court finds that the Commissioner's own arguments undermine her position that there is no reasonable probability that consideration of these records would change the outcome of the decision, and that they support Parker's position that the Appeals Council erred in failing to fully consider these records and weigh these notes. Since the treatment notes from the relevant time period conflict with other evidence in the record, the ALJ may have reached a different conclusion had he had the benefit of considering them. The Commissioner essentially seeks to have the court weigh that evidence in the first instance and reject it.
Although the Meyer Court recognized that instances would exist that clearly show that the additional evidence did not cause the ALJ's decision to be unsupported by substantial evidence, in this case, without an explanation by the Appeals Council, the court is simply unable to determine whether its decision is supported by substantial evidence. The court observes that these records could impact the ALJ's evaluation of Parker's subjective complaints and the opinion evidence as they could undermine some of the reasons offered by the ALJ in discounting Parker's complaints and the opinion evidence. Accordingly, the court is constrained to recommend that this matter be remanded for further consideration of these records.
Therefore, the court observes that further consideration of these records may impact Parker's remaining issues. In light of the court's recommendation that this matter be remanded for further consideration, the court need not address the plaintiff'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).
The court expresses no opinion as to whether further consideration of the evidence by the Commissioner should lead to a finding of disability during the time period at issue. Further analysis and discussion may well not affect the conclusions in this case.
RECOMMENDATION
For the foregoing reasons, the court recommends that the Commissioner's decision be reversed and remanded for further proceedings. December 18, 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).