Opinion
C. A. 5:22-4015-TLW-KDW
03-12-2024
Michael Sherbert, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) pursuant to the Social Security Act (“the Act”). The issue before the court is whether the Commissioner's decision is supported by substantial evidence. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On March 24, 2020, Plaintiff filed an application for DIB under Title II of the Act, alleging a disability onset date of May 6, 2019. Tr. 246-47. Plaintiff's application was denied initially, Tr. 143, and upon reconsideration, Tr. 159, and on November 19, 2020 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 177-78. The administrative hearing was held on October 13, 2021. Tr. 84-129. On March 16, 2022, the ALJ issued an unfavorable decision, finding Plaintiff not disabled within the meaning of the Act. Tr. 13-27. Plaintiff requested review of the ALJ's decision. Tr. 242-43. After granting Plaintiff additional time to submit additional evidence, Tr. 8-9, on October 27, 2022, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Thus, the ALJ's decision became the final decision of the Commissioner of Social Security. Tr. 1. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on November 13, 2022. ECF No. 1.
Although the Application Summary is dated April 7, 2020, Plaintiff's protected filing date, as noted in the Disability Determination and Transmittal, is March 24, 2020. Tr. 143.
B. Plaintiff's Background
Plaintiff was born in March 1969 and was 50 years old as of his alleged onset date of May 6, 2019. Tr. 266. In his April 8, 2020, Disability Report-Adult form Plaintiff indicated that he completed his GED in 1986. Tr. 290. Plaintiff indicated that he completed specialized training in mechanical maintenance and an electrical program that he completed in 1988. Id. Plaintiff's past relevant work (“PRW”) included work as an electrical mechanic, maintenance mechanic, and millwright. Id. In his Disability Report Plaintiff indicated he stopped working on March 15, 2020 because of his medical conditions, but his conditions caused him to make changes in his work activity on May 6, 2019. Tr. 289. Plaintiff listed his medical conditions as two heart attacks, COPD, coughing spells, high cholesterol, high blood pressure, borderline diabetic, crack on spine, and kidney condition. Id. Plaintiff indicated that he was 6' tall, weighed 235 pounds, and his conditions caused him pain and other symptoms. Id.
At the administrative hearing Plaintiff testified that he completed the eighth grade and did not obtain his GED. Tr. 91.
In an October 2, 2020 Disability Report-Appeal Plaintiff indicated a change in his condition that occurred on July 7, 2020. Tr. 316. Plaintiff noted that he had a third heart attack and he is “not able to complete most basic household tasks.” Id. He noted that he must sit down and rest and he becomes dizzy and lightheaded. Id. Regarding his activities Plaintiff noted that he is unable to fully complete most daily tasks for basic needs without becoming dizzy and out of breath. Tr. 320. He noted that he is “struggling to do basic self care.” Id. In the Remarks section of the report Plaintiff wrote the following:
I am not able to do the physical activities I used to be able to do. I am dizzy and short of breath walking short distances. I am struggling to do basic things like standing to cook and walking a few feet to get my mail. I feel helpless and do not leave my home to do the things I loved to do like fish, work, take of the yard and home.
have had 3 heart attacks and each time I am ending up worse then [sic] before. With my COPD I am coughing until I feel like I will pass out, leaving me shakey [sic] and confused.Tr. 322.
C. The Administrative Proceedings
Plaintiff's administrative hearing was held on October 13, 2021 in Greenville, South Carolina before ALJ Jordan. Tr. 84. Plaintiff appeared, along with his attorney, and testimony was also taken from lay witness Vicki Sherbert and Vocational Expert (“VE”) Shannon Smith. Id.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he was 52 years old, 6' tall, right-handed, and weighed 230 pounds. Tr. 89. Plaintiff stated that he was married and had stepchildren and grandchildren, but just he and his wife lived in the household. Id. Plaintiff stated they lived in a mobile home and the house and the land was paid for. Tr. 90. He stated that he received food stamps and his wife, who is over 62 years old, was drawing social security. Id. Plaintiff testified that he had “a couple” of workers compensation settlements and the most recent settlement was six or seven years prior when he tore his right rotator cuff, muscle flap, and tendons. Tr. 90-91. He stated the only medical insurance he has is AccessHealth which he receives from the State for doctors' appointments and emergency room care. Tr. 91. Plaintiff testified that he completed the eighth grade and did not obtain his GED. Id. He stated he “had a little bit of vocational training in electrical and mechanical maintenance” from Daniels Regional Training Center in Spartanburg, South Carolina. Tr. 91-92. Plaintiff testified that he was not working currently and had not worked since May 2019 (after prompting from the ALJ based on information in the record, he acknowledged he last worked in 2020). Tr. 93. Plaintiff stated that after his third heart attack he attempted to work for an acquaintance who had an auto shop, but Plaintiff testified that he stopped working after a few months because he was unable to do the work. Id. Plaintiff testified that he was out of work for doctor visits but he did not recall staying home due to illness. Tr. 94. Plaintiff stated he was unable to do the heavier auto repairs. He testified that he was getting paid by the job, and he stopped working because he was “making no money.” Tr. 95-96. Plaintiff stated that if he did not do a job, he did not get paid and that he was “just using his shop” and they were paying him. Tr. 96. Plaintiff agreed with the ALJ's assessment that it was “basically selfemployment through another garage[.]” Id.
“AccessHealth of the Carolinas, established in 2008, includes 30 community-based networks of care across 84 counties in North and South Carolina. These networks provide access to primary and specialty care providers, care coordination and case management services to chronically ill, uninsured patients to improve health outcomes and reduce avoidable hospital utilization and costs.” See https://caronova.org/access-health-of-the-carolinas/ (last visited Nov. 14, 2023).
Plaintiff testified that from 2000 to 2008 he worked for Cone Denim as an electrical maintenance mechanic but he performed both electrical and mechanical maintenance. Tr. 96-97. He stated that the heaviest he had to lift was 100 to 125 pounds and he worked on textile machinery. Tr. 97. From 2009 until 2012 Plaintiff confirmed he worked at Georgia-Pacific and Anderson Hardwood Flooring, which later became Shaw Industries, doing machine maintenance. Tr. 97-99. Plaintiff testified that he tore his rotator cuff in 2012, had surgery, and was laid off work while he was drawing workers' compensation. Tr. 99. Plaintiff confirmed that from 2013 through 2019 he worked for several different employment agencies at various companies doing electrical or mechanical maintenance work. Tr. 100-102.
Plaintiff testified that on days when it is hot and humid, he stays indoors because he would “get to coughing real bad from the humidity.” Tr. 103. He stated that family and friends come to visit him more than he goes to visit them, he does not attend organization meetings or church regularly, and he does not have appointments that he attends on a weekly or monthly basis. Id. He testified that in his spare time he watches TV and helps to vacuum or fold clothes. Tr. 103-04. Plaintiff stated that he does not cook, and his wife does most of the household chores. Tr. 104. Plaintiff stated that when it is not hot and humid outside, he helps with grocery shopping. Id. He testified that he does yardwork when he can, but that his wife or his brother-in-law cuts the grass. Tr. 105. Plaintiff testified that he has a driver's license and last drove two days prior to take household trash two miles to the dump. Id. Plaintiff testified that he does not do any car repairs or workshop and no longer goes fishing because he is afraid that he “might cough, pass out, fall in the lake or river and drown.” Tr. 105-06. Plaintiff stated that he tries to walk 150 feet from his doorstep to the mailbox but he has to stop and sit down because he will start coughing or get out of breath. Tr. 106. Plaintiff stated that he can take care of his personal hygiene, he quit smoking five weeks prior, and he does not drink alcohol. Tr. 106-07. Plaintiff stated that he does not use any street drugs. Tr. 107.
Plaintiff testified that the combination of his heart issues and coughing spells is what prevents him from being able to work. Tr. 107. He stated that he has been having coughing spells since his third heart attack and no one has been able to tell him why he is coughing. Id. Plaintiff could not recall the date, but he thought the coughing started within the current year and he recounted an incident where he was standing at the kitchen counter and started coughing and the next thing he knew he was on his back on the floor. Tr. 108. Plaintiff stated that he “busted both of [his] elbows and cracked [his] spine.” Id. Plaintiff testified that he has passed out multiple times and gone to the emergency room. Tr. 109. He stated that while he was in the emergency room he passed out during a scan. He stated that now, when he is passing out, he starts to shake like he is having a seizure and that “can last anywhere from 30 seconds to a couple of minutes.” Id. Plaintiff testified that he was diagnosed with COPD when he “cracked [his] spine when [he] went to the emergency room.” Id. Plaintiff affirmed that he was sent for a pulmonary function test and the doctor cleaned out his lungs but noted that he had lymph nodes in his lungs and COPD. Id. Plaintiff testified that he is on nine different pills and has an inhaler that he uses once a day and a rescue inhaler that he uses multiple times daily. Tr. 110. Plaintiff testified that he had bronchitis in the past, but he was unable to recall when. Id. As to other physical problems, Plaintiff testified that with his rotator cuff his shoulder “locks up sometimes” when he is reaching for something or reaching up, and he stated that he has a steel rod in his left leg. Id. Plaintiff explained that he was “in a car wreck back in the ‘90s.” Tr. 111. He stated that because of the combination of his ailments he “can't get up and down good.” Id. He testified that the fracture to his spine was in the lower part of his spine and he was given a brace to wear for a month. Id. He stated that he sometimes has to put it on but he was told not to wear it all the time because he would get used to the support and it weakens the muscles. Tr. 111-12. He testified that he has been diagnosed with borderline diabetes, but he is not taking any medications. Tr. 112. He also stated that he is taking medication for hypertension but was having problems with his blood pressure “bottoming out.” Id. He stated that he was told to cut the pill in half, and since then it has not bottomed out but his “low number's been running high ever since then.” Id. Plaintiff testified that doctors did not want his blood pressure to be elevated because he has an aneurysm on his aorta. Id. Plaintiff stated that he recently saw his family doctor because of an extended coughing spell and the doctor's scan indicated the aneurysm had enlarged from 4 centimeters to 4.2 centimeters. Id. Plaintiff stated that his cardiologist is monitoring it and said if it increases to 5 or 5.5 centimeters they will discuss what needs to be done. Tr. 113. Plaintiff testified that he “had a couple of rounds” of pancreatitis and he was told to “stay away from greasy, fatty food and spicy food, basically.” Id. Plaintiff stated that his depression and anxiety has been “heavy” since his heart attacks, coughing spells, and other issues. Tr. 113-14. He stated that he saw a doctor who prescribed antidepressants, but they stopped helping him. Tr. 114. Plaintiff stated he has been unable to find another doctor who can prescribe something for him, so he is not taking any mental health medications currently. Id. Plaintiff testified that “some people” told him his medication may be causing the coughing spells but his doctors deny that is the reason, although they do not know what is making him cough. Tr. 114-15. Plaintiff stated that his cardiologist thinks it is something with his lungs, and the pulmonologist thinks it is something with his heart. Tr. 115. Other than the possible coughing spells, Plaintiff stated he did not notice any other medication side effects. Id.
Plaintiff testified that he is able to sit and watch television for 10-15 minutes, then he will “have to get up and just walk around for a few minutes” before sitting down again. Tr. 115. Plaintiff stated he gets uncomfortable because his back starts hurting. Tr. 116. Plaintiff stated he can stand for 10-15 minutes. Id. He testified his ability to walk “varies from day to day,” but when he tries to walk to his mailbox, he gets about 25-30 feet before needing to stop and catch his breath. Id. He stated he can lift and carry groceries, and he can bend over and pick something up but there have been times when he has gotten lightheaded. Id. Plaintiff stated that he gets out of breath climbing stairs. Id.
In response to questions from his attorney Plaintiff stated that the only room that gets vacuumed is the living room and it takes only three or four minutes to do it. Tr. 117. Plaintiff testified that he mowed the lawn using a riding lawnmower four or five times the entire year and it took him 15-20 minutes. Tr. 117-18. Plaintiff testified that a couple of times a week or more he uses a wooden stick as a cane to get up. Tr. 118.
2. Lay Witness's Testimony
Witness Vicki Sherbert testified that Plaintiff has had three heart attacks and she has observed him having “real bad coughing spells where he literally passes out.” Tr. 120. She stated that he once fell in the kitchen floor and after being taken to the hospital they learned he had cracked his spine. Id. Mrs. Sherbert testified that Plaintiff had two bad coughing spells three weeks prior to the hearing. She stated that he “turns grayish looking” and “starts shaking real bad . . . like he's having a seizure. But they haven't ruled a seizure.” Id. She testified that when he “comes to” he does not remember anything other than that he started coughing. Id.
According to Plaintiff's Disability Report-Adult, Vicki Sherbert is his wife. Tr. 296.
Mrs. Sherbert testified that she does all of the household chores although Plaintiff will sometimes help her fold clothes or on “a rare occasion, he may help vacuum the living room.” Tr. 121. She stated that Plaintiff will sometimes go grocery shopping with her, “but sometimes if it's real hot outside, he'll sit in the car and run the air conditioning while [she is] in the grocery store.” Tr. 122. Mrs. Sherbert stated that she does not like to leave Plaintiff alone because she is ”scared he's going to pass out.” Id. She stated that when he does help with the groceries, he carries the lighter weight items like bread or vegetables, and she carries the heavier items. Id. Mrs. Sherbert testified that she is “real worried about his aneurysm” and his coughing spells. Id. She stated that she never leaves Plaintiff by himself, and if she has to go somewhere she will get her brother or grandson to stay with him. Tr. 122-23.
3. VE's Testimony VE Smith testified and described Plaintiff's past work as maintenance mechanic, Dictionary of Occupational Titles (“DOT”) number 638.281-014, SVP 7, heavy; and millwright, DOT number 638.281-018, SVP 7, heavy. Tr. 123-24. The VE confirmed that maintenance mechanic covered both mechanical and electrical maintenance on machinery. Tr. 124. The ALJ asked the VE to assume a hypothetical person of the same age, education as Plaintiff “limited to no more than light work as defined in the DOT, never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crouch, and crawl; avoid concentrated exposure to cold, heat, humidity, fumes, odors, dust, gases, poor ventilation, and so forth and also hazards such as dangerous machinery or unprotected heights.” Tr 125. The ALJ asked if, with those limitations, Plaintiff could return to any of his past work the VE responded in the negative. Id. The ALJ asked what light jobs would be available for a person with those limitations, and the VE provided the following representative jobs: assembler/small parts, DOT number 706.684-022, SVP 2, light, approximately 22,000 jobs; rental clerk, DOT number 295.367026, SVP 2, light, approximately 104,000 jobs; and merchandise marker, DOT number 209.587034, SVP 2, light, approximately 225,000 jobs. Tr. 125-26. The VE stated there was no conflict with the DOT. Tr. 126.
Plaintiff's counsel asked if there would be any transferrable skills from Plaintiff's past relevant work if he was limited to sedentary work, and the VE responded that there would be nothing directly transferrable. Tr. 126. Counsel asked if there would be any competitive employment available if, because of passing out spells, he would have to miss more than three days of work per month. The VE responded in the negative. Id. Counsel asked if there would be any competitive employment if the individual “would have to rest away from the workstation for more than an hour during the working day due to coughing fits of that sort as described by the claimant” and the VE responded in the negative. Tr. 127.
Counsel had no more questions for the VE but asked the ALJ to hold the file open for additional medical records. Tr. 127. The ALJ agreed to hold the file open for two weeks. Tr. 128. II. Discussion
A. The ALJ's Findings
In her March 16, 2022 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2025.
2. The claimant has not engaged in substantial gainful activity since May 6, 2019, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: ischemic heart disease and chronic obstructive pulmonary disease (COPD) (20 CFR 404.1520(c)).
4. 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 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except for the following restrictions: He can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but can never climb ladders, ropes, and scaffolds. The claimant must avoid concentrated exposure to extreme cold, extreme heat, humidity, and pulmonary irritants such as fumes, odors, dusts, gases, and poor ventilation. He must also avoid concentrated exposure to hazards, such as dangerous machinery and unprotected heights.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 3, 1969 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. 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 404.1569 and 404.1569a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 6, 2019, through the date of this decision (20 CFR 404.1520(g)).Tr. 18-21, 25-26.
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are “under a disability,” defined as:
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).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he/she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing the inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he/she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff argues that: (1) the ALJ failed to assess the credibility of the lay witness's testimony; and (2) the Appeals Council failed to consider new and material evidence submitted by Plaintiff. Pl.'s Br. 2, ECF No. 9.
1. Lay Witness Testimony
Plaintiff concedes that an ALJ is not required to “discuss every single piece of evidence,” but argues that the ALJ is “required to consider and weigh all relevant evidence.” Pl.'s Br. 24. Plaintiff asserts the ALJ erred in failing to “articulate [her] consideration of the lay evidence in this case[.]” Id. at 25. The Commissioner contends “the ALJ reasonably considered this witness statement under controlling regulations, and she explained why the longitudinal record supported her findings . . . .” Def's Br. 9, ECF No. 10. The applicable regulations provide that ALJs are “not required to articulate how we considered evidence from nonmedical sources using the requirements [for considering medical opinions and prior administrative findings].” 20 C.F.R. § 404.1520c(d). Nonmedical sources include family members, such as Plaintiff's wife. 20 C.F.R.§ 404.1502(e)(4).
After hearing testimony from Plaintiff at the administrative hearing, the ALJ heard testimony from Plaintiff's wife, which essentially duplicated some parts of Plaintiff's testimony. Specifically, Plaintiff's wife testified that Plaintiff has had three heart attacks, and she has observed him having coughing spells where he passes out. Tr. 120. She stated that Plaintiff occasionally helps with household chores by folding clothes, vacuuming the living room, or accompanying her to grocery shop and carrying lighter items. Tr. 121-22. This is the same testimony provided by Plaintiff. See Tr. 104 (Plaintiff's testimony that he helps vacuum, helps fold clothes, helps with grocery shopping); Tr. 107-08 (Plaintiff's testimony regarding coughing spells since his third heart attack and recounting episode of passing out from coughing).
Plaintiff notes that the “Regulations require an ALJ, in assessing a claimant's RFC [residual functional capacity], to consider descriptions and observations of the claimant's limitations from his ‘family, neighbors, friends, or other persons.'” Pl.'s Br. 24 (citing 20 C.F.R. § 404.1545(a)(3)). Plaintiff further argues that the “ALJ must take into account the extent to which such descriptions and observations ‘can reasonably be accepted as consistent with the objective medical evidence and other evidence.'” Id. (citing 20 C.F.R. § 404.1545(a)(3) and § 404.1529(c)(3)). Here, the ALJ considered the testimony of Plaintiff's wife in her discussion of Plaintiff's RFC noting that “[b]oth claimant and his wife testified that he only folds laundry and rarely mows the lawn” and that “both the claimant and his wife testified that his condition prevents him from shopping [for] groceries[.]” Tr. 22. The ALJ found this testimony inconsistent with information contained in Plaintiff's self-reported Function Report, and determined that “[o]verall, these activities suggest that the claimant's limitations are not as restrictive as alleged and that he can perform within the limitations of the residual functional capacity.” Id. The ALJ noted that in developing the limitations outlined in her RFC assessment, she “considered the third-party testimony provided by Vickie Sherbert, the claimant's wife (Hearing Testimony). However, [she] did not provide articulation about the persuasiveness of this testimony in accordance with our regulations.” Tr. 24. The undersigned recommends finding that the ALJ properly considered the lay witness testimony and any failure to provide further articulation was harmless error. Jenkins v. Saul, No. 4:18-CV-02240-DCN-TER, 2020 WL 3848203, at *12 (D.S.C. Jan. 29, 2020), report and recommendation adopted, No. 4:18-CV-2240-DCN-TER, 2020 WL 1612442 (D.S.C. Apr. 1, 2020) (holding that “the ALJ's failure to mention Plaintiff's wife's testimony was harmless error as Plaintiff made similar statements as those made by this individual” noting that “‘[w]here a lay witness's testimony merely repeats the allegations of a plaintiff's own testimony and is likewise contradicted by the same objective evidence discrediting the plaintiff's testimony, specific reasons are not necessary for dismissing the lay witness's testimony.'”) (quoting Bazar v. Colvin, No. 9:14-537-TMC, 2015 WL 1268012, at *12 (D.S.C. Mar. 19, 2015)); Plowden v. Colvin, No. 1:12-CV-2588-DCN, 2014 WL 37217, at *18 (D.S.C. Jan. 6, 2014) (same).
2. New Evidence to Appeals Council
On April 29, 2022 Plaintiff filed a request for review of the ALJ's March 16, 2022 decision. Tr. 242-43. On May 10, 2022 the Appeals Council notified Plaintiff's counsel that it had granted his “request for more time” before acting on Plaintiff's case. Tr. 8. The letter indicated counsel could send a statement about the facts and law in the case or additional evidence. Id. The letter specifically noted:
We consider additional evidence that you show is new, material, and relates to the period on or before the date of the hearing decision. You must also show there is a reasonable probability that the additional evidence would change the outcome of the decision. You must show good cause for why you missed informing us about or submitting it earlier.Id.
On May 20, 2022, counsel submitted a letter to the Appeals Council that “[n]ew and material evidence rebuts the ALJ's finding that [Plaintiff] is able to perform light work.” Tr. 369. The letter contends that this evidence shows that Plaintiff “would be limited to sedentary work, and would be off-task 15% of the workday[.]” Id. The letter further states:
The ALJ failed to consider the effects of [Plaintiff's] bouts of syncope which have occurred since June 2021. Nurse Practitioner (NP) Mark Reynolds has treated [Plaintiff] for this problem and has submitted a rebuttal statement in which he gives his opinion that [Plaintiff] cannot perform light work and can lift only 10 pounds. NP Reynolds also finds that [Plaintiff's] syncope would cause absenteeism from work as well as causing him to be off-task for 15% of the workday. A copy of this rebuttal statement is attached for your review.Tr. 370. Counsel sought remand for a new hearing “so that the effects of his syncope can be given consideration in the RFC findings.” Id.
On October 27, 2022, the Appeals Council filed its Notice of Appeals Council Action. Tr. 1-6. The Appeals Council determined that the 51 pages of medical evidence counsel submitted from Mark Reynolds, NP, dated June 21, 2021 to December 21, 2021 did “not show a reasonable probability that it would change the outcome of the [ALJ's] decision. We did not exhibit this evidence.” Tr. 2. The Appeals Council Exhibits List includes Plaintiff's April 29, 2022 Request for Review of Hearing Decision/Order at Exhibit 15B and Plaintiff counsel's May 20, 2022 Representative Brief describing NP Reynolds' rebuttal statement sans the actual statement at Exhibit 21E. Tr. 5-6.
While the Appeals Council did not exhibit the medical records from NP Reynolds, those records are part of the Court Transcript Index at Tr. 33-83.
Plaintiff argues that the Appeals Council failed to properly consider the new evidence because it “did not mention Mr. Reynolds' 4/28/21 statement and did not include it in the file as it did with Mr. Reynolds' treatment notes at ¶ 33-83.” Pl.'s Br. 27-28. Plaintiff acknowledges that that there is a requirement for a showing of good cause for submitting new evidence, but Plaintiff contends that the “Appeals Council did not reject the new evidence due to a lack of good cause. Rather, the Appeals Council failed to make any finding whatsoever related to this opinion.” Id. at 28. Plaintiff argues that “this case must be remanded for a proper evaluation of the new evidence.” Id. The Commissioner argues that Plaintiff did not comply with the regulations for submitting the statement to the ALJ. Def.'s Br. 16. The Commissioner argues that Plaintiff failed to timely inform the ALJ about the evidence, Plaintiff provided no good cause explanation for failure to submit the evidence to the Appeals Council, the evidence does not fill an evidentiary gap, and Plaintiff could have submitted the evidence prior to the ALJ's decision. Def.'s Br. 16-20. The Commissioner contends that “remand for further evaluation of these untimely materials is not warranted.” Id. at 20.
As an initial matter, the court must determine whether it has the authority to remand this case on this issue pursuant to the regulations. The Social Security Regulations allow for two types of remand. Under sentence four of 42 U.S.C. § 405(g), a court has the general power to enter a judgment, based on the pleadings and transcript of the record, affirming, modifying or reversing the decision of the Commissioner, with or without remanding the cause for rehearing for further development of the evidence. 42 U.S.C. § 405(g) (emphasis added). When there is new medical evidence, a court may remand under sentence six of 42 U.S.C. § 405(g) based only on a finding that the new evidence is material and that good cause exists for the failure to previously offer the evidence. Id. (emphasis added). As discussed above, the evidence submitted to the Appeals Council consisted of a statement from a nurse practitioner dated April 28, 2021. Because the Appeals Council did not incorporate it into the record, the court is obliged to review it under sentence six, considering whether it is material and whether good cause exists for the failure to incorporate it into the record in a prior proceeding. 42 U.S.C. § 405(g).
“The Fourth Circuit has suggested a high bar for establishing ‘good cause' for a sentence six remand.” Jones v. Colvin, C/A No. 6:12-cv-67, 2014 WL 359672, at *10 (W.D.Va. Feb. 3, 2014) (citing Hammond v. Apfel, 5 Fed.Appx. 101, 103 (4th Cir. 2001) (“Without any explanation as to why his workman's compensation would not cover treatment earlier, we find that [plaintiff] has failed to demonstrate ‘good cause' to excuse his failure to submit [new evidence].”). As noted by the Commissioner, Plaintiff did not provide a “good cause explanation” for why this evidence was not submitted to the ALJ, and no explanation was provided to the Appeals Council. Def.'s Br. 17. Although acknowledging the good cause requirement, Plaintiff argues the Appeals Council did not reject the new evidence due to a lack of good cause. Pl.'s Br. 28. In his Reply Brief, Plaintiff's counsel contends that he “was not aware that Mr. Reynolds was going to provide an opinion.” Pl.'s Reply 6. Plaintiff has failed to make the required good cause showing that would allow remand under sentence six for the self-identified “rebuttal statement.” Wooding v. Comm'r of Soc. Sec., C/A No. 4:10-cv-6, 2010 WL 4261268, at *4 (W.D.Va. Oct. 29, 2010) (“Good cause does not exist based solely on Plaintiff's after-the-fact desire to contradict the Vocational Expert's opinion and the ALJ's subsequent findings.”); Rogers v. Barnhart, 204 F.Supp.2d 885, 892 (W.D. N.C. 2002) (“Plaintiff's failure to present such evidence to the Appeals Council is not good cause. Ultimately, it is plaintiff who bears the initial burden of production of evidence and the ultimate burden of persuasion.”).
Additionally, the undersigned recommends finding that Mr. Reynolds' statement is not material. “Evidence is new ‘if it is not duplicative or cumulative' and is material if there is ‘a reasonable possibility that the new evidence would have changed the outcome.'” Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (quoting Wilkins v. Sec'y, Dep't Health and Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991). Plaintiff requested remand in light of the new and material evidence “so that the effects of his syncope can be given consideration in the RFC findings.” Tr. 370. However, the ALJ's decision demonstrates that she considered Plaintiff's syncope in making her RFC assessment. She noted that “[a]lthough the claimant endorsed experiencing some occasional cough paroxysms with loss of consciousness, he also repeatedly denied shortness of breath, chest pains, or palpitations (Ex. 2F/6-7, 10, 19, 37; 3F/10, 44; 4F/14).” Tr. 22. She noted that in July 2020 Plaintiff “endorsed shortness of breath, dizziness, lightheadedness, and syncope episodes that had developed over the preceding 3 months.” Tr. 22-23. The ALJ noted that after undergoing a percutaneous coronary intervention, Plaintiff “continued to endorse some syncope, chest pain, lightheadedness, dizziness, and dyspnea on exertion on an intermittent basis (Ex. 9F/3, 5, 11, 13, 22; 11F/3, 11; 14F/1, 9, 38).” Tr. 23. The ALJ discussed other treatment notes including a September 2021 treatment note that “documented normal cardiovascular findings (Ex. 14F/127).” Id. The ALJ determined that “[considering these findings, especially his overall improvement with treatment, the claimant is fully capable of performing work at the less than light exertional level.” Id.
Because the ALJ considered Plaintiff's syncope, Mr. Reynolds' statement would not reasonably impact the ALJ's RFC finding nor would it have changed the outcome of her decision that Plaintiff was not disabled. Accordingly, the undersigned recommends a finding that Plaintiff does not establish the decision should be remanded pursuant to sentence six of 42 U.S.C. § 405(g).
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, Plaintiff has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through an application on an incorrect legal standard. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g). Further, Plaintiff has not met his burden for remand pursuant to sentence six of 42 U.S.C. § 405(g). Accordingly, the undersigned recommends that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”