Opinion
5:20-CV-693-M
04-03-2022
ANGELA PARTIN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-22, -24] pursuant to Fed.R.Civ.P. 12(c). Pro se Plaintiff Angela Partin (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Supplemental Security Income (“SSI”). Both parties submitted memoranda in support of their respective motions [DE-22, -25]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record, and the motions, memoranda, and filings submitted by the parties, it is recommended that Plaintiff's motion for judgment on the pleadings be denied, Defendant's motion for judgment on the pleadings be allowed, and the final decision of the Commissioner be upheld.
Plaintiff's motion [DE-22] consists of one handwritten page stating, “I would like to file a motion for judgement [sic] on the pleadings and supporting memorandum of law pursuant to Local Civil Rule 7.2, EDNC Rule 12(c). Judgment reversing or modifying the decision of the commissioner.” To her motion, Plaintiff attaches sixty-two pages of various medical records dated from February 2021 to June 2021. [DE-22-1]. The court construes this filing as a motion for judgment on the pleadings and memorandum in support thereof as discussed herein.
On January 6, 2022, Plaintiff filed a letter with the court [DE-28] attaching two pages of medical records dated December 24, 2021 [DE-28-1].
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and SSI on September 7, 2017, alleging disability beginning January 10, 2013. Transcript of Proceedings (“Tr.”) 194-99. Her claim was denied initially. Tr. 125-29. Plaintiff filed a request for reconsideration (Tr. 130-33) and was denied upon reconsideration on February 8, 2019 (Tr. 134-38). On March 25, 2019, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 59-60. A hearing before the ALJ was held on October 24, 2019, at which Plaintiff, not represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 37-58. On February 12, 2020, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 10-35.
On March 2, 2020, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 193. On October 29, 2020, the Appeals Council denied Plaintiff's request for review. Tr. 1-5. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”], ” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and, adapting or managing oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 416.920a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 30. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since August 16, 2017, the alleged onset date. Tr. 15.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: kidney/renal stones; hypertension; COPD/emphysema; diabetes mellitus; obesity; gout; bilateral glaucoma and cataracts; anxiety disorder; and borderline intellectual functioning. T r. 15. The ALJ also found Plaintiff had non-severe impairments of: hypercholesteremia; Munchausen syndrome; nasal obstruction; bronchitis; leukocytosis; cherry hemangioma of the right thigh; irritable bowel syndrome; chest pain, non-cardiac; fatty liver; facial droop; lower back pain/lumbago; right knee pain with minimal degenerative changes; mild degenerative changes of the bilateral feet; influenza A; neuropathy; headaches; and right ear pain/otitis media. Tr. 15-16. However, at step three, the ALJ concluded these impairments, both physical and mental, were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 16.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in moderate limitation in understanding, remembering, or applying information; mild limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing oneself. Tr. 18.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
occasional climbing of ramps and stairs; no climbing of ropes, ladders, or scaffolds; occasional balancing, crouching, stooping, kneeling, and crawling; no use of foot pedals with the bilateral lower extremities; avoid concentrated exposure to extreme temperatures, pulmonary irritants, and workplace hazards; with simple routine repetitive tasks involving no more than simple short instructions, and simple work related decisions with few workplace changes; no work at a fixed production rate or pace; requires the opportunity to alternate between sitting and standing every 2 hours at the workstation, with standing and walking a total of four hours in an eight-hour workday.Tr. 18. In making this assessment, the ALJ found Plaintiff's statements about her limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 26.
At step four, the ALJ concluded Plaintiff had no past relevant work. Tr. 28. At step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined these are jobs that exist in significant numbers in the national economy that Plaintiff can perform. Tr. 28-29.
V. DISCUSSION
A. The ALJ's five-step sequential evaluation process
In her one-page motion for judgment on the pleadings and memorandum in support thereof [DE-22], Plaintiff does not allege any error by the Commissioner and does not include any argument relating to the Commissioner's findings or otherwise. Instead, she merely requests a “judgment reversing or modifying the decision of the commissioner.” [DE-22]. In full, Plaintiff's filing states:
I would like to file a motion for judgement [sic] on the pleadings and supporting memorandum of law pursuant to Local Civil Rule 7.2, EDNC Rule 12(c). Judgment reversing or modifying the decision of the commissioner.Id. Similarly, in Plaintiff's complaint - a partially completed three-page complaint form - she includes only her name and address, that the defendant is the “Social Security Administration, ” and that the relief sought is “to receive my Disability Benefits.” [DE-7] at 1, 3. Plaintiff leaves the second page of the complaint form blank, which, notably, includes the portion designated for a plaintiff to state “[t]he acts complained of in this suit.” Id. at 2.
Because Plaintiff is appearing pro se, the court must liberally construe her pleadings. Biggs v. Comm'r of Soc. Sec., No. 5:11-CV-172-FL, 2011 WL 3664572, at *1 (E.D. N.C. Aug. 18, 2011) (citing White v. White, 886 F.2d 721, 724 (4th Cir. 1989)); see also Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the “court may not construct [] [P]laintiff's legal arguments for [her].” Daughtridge v. Comm'r of Soc. Sec., No. 5:16-CV-000687-BO, 2017 WL 9478525, at *2 (E.D. N.C. May 18, 2017) (citing Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993)). “Nor should [the] court ‘conjure up questions never squarely presented.'” Daughtridge, 2017 WL 9478525, at *2 (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).
Defendant asserts that substantial evidence exists to support the Commissioner's decision that Plaintiff was not disabled within the meaning of the Social Security Act. Def.'s Mem. [DE-25] at 2. Defendant provides a detailed step by step analysis of the ALJ's decision including discussion of the evidence considered and cited by the ALJ. Id. at 4-26. Defendant argues the ALJ properly considered the record as a whole and provided well-supported findings at all five steps of the sequential evaluation process, and the decision is therefore supported by substantial evidence. Amongst other things, Defendant argues that the ALJ considered the objective medical evidence, medical opinions, and Plaintiff's own testimony, in determining that Plaintiff was able to perform jobs existing in significant numbers in the national economy.
The undersigned has carefully reviewed the transcript in this case to ensure that the ALJ's decision applied the correct law and was supported by substantial evidence. The court finds that the ALJ's conclusions at each step of the sequential evaluation process, as outline above, are supported by substantial evidence, and thus, conclusive. See 42 U.S.C. § 405(g). It is therefore RECOMMENDED that Plaintiff's motion for judgment on the pleadings be DENIED, and Defendant's motion for judgment on the pleadings be ALLOWED.
B. Additional evidence submitted by Plaintiff
In addition to her one-page motion for judgment on the pleadings, Plaintiff submits a number of medical records to the court, without further explanation of why the records are being submitted. As noted above, Plaintiff attaches sixty-two pages of medical records to her motion [DE-22-1] and attaches an additional two pages of medical records [DE-28-1] to her January 6, 2022 letter to the court [DE-28]. All of the records submitted by Plaintiff pertain to medical treatment occurring after the ALJ's written decision was issued. In liberally construing Plaintiff's filings (see Biggs, 2011 WL 3664572, at *1), the court treats the medical records submitted by Plaintiff as an allegation that remand is required for the ALJ to consider additional evidence. In considering this argument, the court finds that remand is not necessary for this issue.
When a claimant submits evidence that has not been presented to the Commissioner, the court may consider the evidence only for the limited purpose of deciding whether to issue a sentence-six remand under 42 U.S.C. § 405(g). In a sentence six remand, the court does not rule on the correctness of the administrative decision, neither affirming, modifying, nor reversing the Commissioner's decision. Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). “Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding.” Id. Under sentence six, “[t]he 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 in to the record in a prior proceeding.” 42 U.S.C. § 405(g); see also Sailing v. Apfel, No. 99-1772, 1999 WL 1032616, at *2 (4th Cir. Nov. 15, 1999) (per curiam) (unpublished).
“There are accordingly three distinct requirements under sentence six.” Blount v. Astrue, No. 4:10-CV-97-D, 2011 WL 5038367, at *5 (E.D. N.C. Sept. 14, 2011) (citing Nuckles v. Astrue, No. 7:09-CV-13-FL, 2009 WL 3208685, at *4 (E.D. N.C. Oct. 5, 2009)). The evidence must be new, the evidence must be material, and there must be good cause for failing to submit the evidence earlier. Evidence is new if it is not duplicative or cumulative of evidence already contained in the record. Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Evidence is material if it relates to the period on or before the date of the ALJ's decision, 20 C.F.R. § 404.970(b), and there is a “reasonable possibility that the new evidence would have changed the outcome” of the decision. Wilkins, 953 F.2d at 96. Finally, good cause must be shown. Courts have recognized that in crafting the statute governing remand, Congress' intent was to permit remand pursuant to sentence six on a very limited basis. Rogers v. Barnart, 204 F.Supp.2d 885, 892 (W.D. N.C. 2002) (“‘Congress made it unmistakably clear' that it intended to limit remands for ‘new evidence.'”) (quoting Melkonyan, 501 U.S. at 99-100). The burden is on the plaintiff to prove that each of the requirements of sentence six are met. Id.
Here, the additional evidence submitted by Plaintiff with her motion for judgment relates to medical treatment that Plaintiff received from February 16, 2021 until June 22, 2021. See [DE-22-1]. Specifically, the evidence consists of: (1) a February 2021 new patient evaluation by Stephanie Lynn Bonham, P.A. at Duke Orthopaedics (id. at 59-62); (2) a March 2021 initial consultation note by Aashish Jay Kumar, M.D. at Duke Raleigh Hospital Pain Clinic (id. at 31-58); (3) an April 2021 new patient evaluation note by Kristina Bullock, P.A. at Duke Department of Orthopaedic Surgery (id. at 20-29); (4) a May 2021 follow-up note with Duke Raleigh Hospital Pain Clinic (id. at 2-19, 30); and (5) a June 2021 note from Ami Crabtree, P.A. at Novant Health Village Family Care (id. at 1). At these visits, Plaintiff sought treatment for bilateral foot pain, as well as “Multiple Body Pain” in her head, back, bilateral knees, and bilateral feet. Plaintiff reported that the onset of her foot pain was about six years prior to her visit in February 2021. Id. at 59. Plaintiff reported that her back and neck pain started in 2012, but her pain has worsened since onset. Id. at 20. Plaintiff also reported that she had falls in December and January prior to her visits. Id. The medical records relating to Plaintiff's multiple body pains note that the reason for Plaintiff's visit was an episode of severe back pain occurring just weeks prior to March 2021 with an unknown cause. Id. at 51.
The additional evidence submitted by Plaintiff with her January 6, 2022 letter consists of a two-page after visit summary from a December 2021 emergency department visit. [DE-28-1]. The visit summary states that Plaintiff was diagnosed with acute bronchitis and pulmonary emphysema following her visit, however, no corresponding information or notes about her impairments, diagnoses or treatment are included. Id.
Because the additional evidence submitted by Plaintiff relates to medical treatment occurring after the ALJ's written decision and it did not exist at the time the ALJ issued her decision, it qualifies as “new” under sentence six. Owen v. Colvin, No.7:24-CV-00255-FL, 2015 WL 13735428, at *5 (E.D. N.C. Dec. 2, 2015). For this same reason, Plaintiff can also show “good cause” for failing to submit the evidence earlier. Id. Nevertheless, the additional evidence is not material. As discussed above, for evidence to be deemed material, it must relate to the period on or before the date of the ALJ's decision. 20 C.F.R. § 404.970(b); see also Tyndall v. Berryhill, No. 7:16-CV-334-RJ, 2018 WL 621294, at *5 (E.D. N.C. Jan. 30, 2018). “Evidence dated after the ALJ's decision relates back if it provides additional insight into impairments the claimant suffered while the ALJ was reviewing [her] case.” Owen, 2015 WL 13735428, at *5 (citing Wilson v. Colvin, No. 7:13CV00113, 2014 WL 2040108, at *4 (W.D. Va. May 16, 2014)).
“Conversely, evidence is not related when it is not representative of the claimant's condition at the time of the ALJ's decision, such as when [her] condition has deteriorated or a new condition has developed.” Owen, 2015 WL 13735428, at *5 (citing Dunn v. Colvin, 973 F.Supp.2d 630, 643 (W.D. Va. 2013)). While the additional evidence here does note that Plaintiff reported her pain and symptoms beginning as far back as 2012, the medical records themselves pertain only to Plaintiff's condition at the time of that treatment, over a year after the ALJ's written decision was issued. The records also indicate that Plaintiff's condition had worsened ([DE-22-1] at 20), Plaintiff had suffered subsequent falls (id.), and that she had an intervening “episode” of severe pain (id. at 51).
The additional evidence does not provide any additional insight into Plaintiff's impairments at the time the ALJ was reviewing her case and does not relate back to the period on or before the date of the ALJ's decision. Therefore, the evidence is not material and remand under sentence six for the ALJ to address the additional evidence is not warranted. Accordingly, it is RECOMMENDED that Plaintiff's motion for judgment on the pleadings be DENIED to the extent Plaintiff seeks remand for further proceedings based upon the additional evidence provided.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's motion for judgment on the pleadings [DE-22] be DENIED, Defendant's motion for judgment on the pleadings [DE-24] be ALLOWED, and the final decision of the Commissioner be UPHELD.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until March 8, 2022 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by March 15, 2022.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).