Opinion
C/A No. 0:18-698-MGL-PJG
04-10-2019
James Lawrence Luker, 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, James Lawrence Luker, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In May 2014 and August 2016, Luker applied for DIB and SSI, respectively, alleging disability beginning April 8, 2014. Luker's applications were denied initially and upon reconsideration, and he requested a hearing before an ALJ. A video hearing was held on November 10, 2016 at which Luker, who was represented by Brian M. Ricci, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on January 11, 2017 concluding that Luker was not disabled from April 8, 2014 through the date of the decision. (Tr. 21-29.)
Jobeth Baird, Esquire, with the Ricci law firm, represented Luker at the hearing.
Luker was born in 1971 and was forty-two years old at the time of his alleged disability onset date. He has a high school education and has past relevant work experience as a lumber inspector. (Tr. 43.)
In applying the five-step sequential process, the ALJ found that Luker had not engaged in substantial gainful activity since his alleged onset date of April 8, 2014. The ALJ also determined that Luker's history of degenerative disc disease of the lumbar spine, asthma, hypertension, and depression were severe impairments. However, the ALJ found that Luker 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 Luker retained the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he is unable to crawl, balance, or climb ladders, ropes, or scaffolds, is limited to occasional climbing of ramps and stairs, is limited to occasional stooping, kneeling, and crouching, and must avoid concentrated exposure to vibration, extreme cold or heat, dust, fumes, gases etc., as well as workplace hazards such as unprotected heights and moving machinery. Mentally, the claimant can perform simple, routine tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday.(Tr. 25.) The ALJ found that Luker was unable to perform any past relevant work, but that considering Luker's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Luker could perform. Therefore, the ALJ found that Luker was not disabled from April 8, 2014 through the date of the decision.
The Appeals Council denied Luker's request for review on February 6, 2018, 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
Luker raises the following issues for this judicial review:
I. The Appeals Council improperly failed to consider new and material evidence submitted by Luker's treating physician, Dr. Pendergrass, in violation of 20 C.F.R. § 404.970(b).(Pl.'s Br., ECF No. 14.)
II. This Matter Should Be Remanded Based on the ALJ's Failure to Consider all of Luker's Documented Limitations, Including His Limitations in Concentration, When Conducting the Residual Functional Capacity Analysis as Required by the Fourth Circuit's Decision in Mascio.
III. The ALJ Fails to Build a "Logical Bridge" to Explain Why The Limitations Placed on Luker's Residual Functional Capacity Account for Luker's Mental and Physical Limitations in Light of the Fourth Circuit's Ruling in Mascio v. Colvin.
IV. The ALJ Failed to Properly Weigh the Medical Source Opinions.
V. The ALJ Completely Fail[ed] to Acknowledge and Assess The Opinion of Dr. Pendergrass, Luker's Treating Physician.
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, 416.913, 416.927. Because the instant claims were 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 Luker's applications for benefits were filed, unless otherwise specified.
As explained by Luker in his brief, his first issue stems from the fact that after the ALJ's decision, Luker submitted new evidence to the Appeals Council which included additional opinion evidence consisting of a March 21, 2017 physician questionnaire completed by Dr. Darby Pendergrass, Luker's treating physician. (See Tr. 261-64.) Luker argues that remand is warranted for the Commissioner to properly consider and weigh the new opinion evidence from Dr. Pendergrass.
The Appeals Council acknowledged this opinion evidence; however, it found:
The Administrative Law Judge decided your case through January 11, 2017. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before January 11, 2017.(Tr. 2.)
The timing of Luker's submissions presents a couple of issues with regard to applicability of recent amendments to the social security regulations. In the Fourth Circuit, 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)). Longstanding Fourth Circuit precedent held that evidence is new "if it is not duplicative or cumulative," and that "[e]vidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Id. at 96. However, amendments to the regulations that recently went into effect also require a claimant to show that "there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. §§ 404.970(a)(5), 416.1570(a)(5) (eff. Jan. 17, 2017) (emphasis added).
Another relatively recent amendment to the regulations requires a good cause showing. Prior to the amendments to the applicable regulations, when a claimant sought to present new evidence to the Appeals Council, he was not required to show good cause for failing to present the evidence earlier. Wilkins, 953 F.2d at 96 n.3; cf. 20 C.F.R. §§ 404.970(b), 416.970(b) (eff. until Jan. 17, 2017). However, also effective January 17, 2017, this subsection was amended to require the claimant to show good cause for not informing the ALJ about or submitting the evidence prior to the hearing. Notably, both the publication of the final rules in the Federal Register and a letter notifying Luker of the change in the rules state that although the effective date of the rules was January 17, 2017, compliance with the new rules would not be required until May 1, 2017. See Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90,987 (Dec. 16, 2016) (to be codified at 20 C.F.R. pts. 404, 405, and 416); (Tr. 14-15). The Appeals Council informed Luker that it would be applying the new regulations to his appeal, including the heightened "reasonable probability" standard. The Appeals Counsel also stated that "[b]ecause your case was pending at the Appeals Council before our rule about when to give us evidence became effective, we will find that you showed good cause for not submitting additional evidence earlier." (Tr. 15.)
The United States Court of Appeals for the Fourth Circuit has explicitly held that "[t]he Appeals Council need not explain its reasoning when denying review of an ALJ decision." Meyer v. Astrue, 662 F.3d 700, 702 (4th Cir. 2011). In determining whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard, the court must " 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.' " Id. at 704 (alterations in original) (quoting Wilkins, 953 F.2d at 96). If the court cannot determine whether, in light of the additional evidence submitted, the Commissioner's decision is supported by substantial evidence, remand is warranted. Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits). The Meyer Court recognized, however, that in some cases the record would clearly show that the additional evidence did not cause the ALJ's decision to be unsupported by substantial evidence. See id. (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996)).
According to Luker, the new evidence warrants remand for further consideration under controlling law. In light of the circumstances and content of this record, the court is constrained to agree that remand is warranted. First, the court finds that the Appeals Council erred in finding that the new opinion evidence signed by Dr. Pendergrass did not relate to the period on or before the date of the ALJ's decision. Although Dr. Pendergrass's opinion was dated after the ALJ's decision, the opinion relates to the period on or before the date of the ALJ's decision because Dr. Pendergrass's opinion indicates that he first treated Luker in September 2014 and specifically states that the symptoms and limitations he opined have existed since "mid 1990s[;] had two surgeries, in 2009 & 2012[;] had some relief until pain recurred." (Tr. 264.) Thus, this opinion clearly encompasses the relevant time period. Wilkins, 953 F.2d at 95-96; see Reichard v. Barnhart, 285 F. Supp. 2d 728, 733 (S.D.W. Va. 2003) (stating that the requirement that new evidence must relate to the period on or before the date of the ALJ's decision "does not mean that the evidence had to have existed during that period. Rather, evidence must be considered if it has any bearing upon whether the Claimant was disabled during the relevant period of time."); cf. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 345 (4th Cir. 2012) (holding that the Commissioner "must give retrospective consideration to medical evidence created after a claimant's last insured date when such evidence may be 'reflective of a possible earlier and progressive degeneration' ").
Further, the court finds that this evidence is not cumulative or duplicative, and in fact, provides greater detail about the limitations opined by Dr. Pendergrass, which exceed those found by the ALJ. For example, Dr. Pendergrass stated that Luker's diagnoses include asthma, back pain, and depression and that Luker experienced constant pain in his lower back, that depending on his activities, varied from burning to pins and needles or dull throbbing, which radiated down the back of his left leg. (Tr. 261.) Dr. Pendergrass checked a box noting that Luker's depression, anxiety, and psychological factors affect his physical condition and Luker's pain and other symptoms would constantly interfere with his attention and concentration. (Tr. 261-62.) Dr. Pendergrass stated that Luker was capable of tolerating low stress jobs. Dr. Pendergrass opined that Luker could sit for 20 minutes before needing to get up, and stand for 15-45 minutes before needing to sit down or walk around. He indicated that Luker could sit for less that two hours in an eight-hour workday and stand/walk for less that two hours in an eight-hour workday. Dr. Pendergrass stated that Luker must walk every 15-30 minutes for 10 minutes each time. (Tr. 262.) Dr. Pendergrass indicated that Luker would need to take approximately six unscheduled breaks for 10-15 minutes each during an eight-hour workday. Dr. Pendergrass checked that Luker could never lift or carry 20 pounds, crouch/squat, and climb ladders; could rarely lift or carry 20 pounds, hold his head in a static position, twist, stoop (bend), and climb stairs; could occasionally lift and carry 10 pounds or less, look down (sustained flexion of neck), and look up; and could frequently turn his head right or left. (Tr. 263.) Finally, Dr Pendergrass indicated that Luker had significant (but unspecified) limitations with reaching, handling, or fingering and that Luker would be absent from work more than four days per month. (Tr. 264.) Accordingly, this evidence from Dr. Pendergrass, which is an opinion from a treating physician, if properly considered, could likely impact the ALJ's residual functional capacity assessment and ultimately, the ALJ's decision. Therefore, the court finds that this new opinion evidence is material, and although the Commissioner suggests reasons to discount this newly offered evidence, without analysis of this evidence by the ALJ or the Appeals Council the court simply cannot determine whether the ALJ's decision is supported by substantial evidence. See Wilkins, 953 F.2d at 96 ("Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome."); 20 C.F.R. §§ 404.970(a)(5), 416.1570(a)(5) (eff. Jan. 17, 2017) (requiring a claimant to also show "there is a reasonable probability that the additional evidence would change the outcome of the decision") (emphasis added); see also Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits).
The Commissioner argues that this evidence is not new; however, her arguments appear to improperly rely on the standard and caselaw interpreting the definition of "new" for a remand under sentence six of § 405(g) rather than sentence four. Compare Wilkins, 953 F.2d at 96 (explaining that evidence submitted to the Appeals Council is "new" "if it is not duplicative or cumulative") with Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (stating that pursuant to the sixth sentence of § 405(g), "[t]he district court does not affirm, modify, or reverse the Secretary's decision; it does not rule in any way as to the correctness of the administrative determination. 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.") and Sullivan v. Finkelstein, 496 U.S. 617, (1990) (explaining that as opposed to the fourth sentence of § 405(g), "[t]he sixth sentence of § 405(g) plainly describes an entirely different kind of remand, appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding"). Therefore, this argument is unpersuasive.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Luker's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Luker may present his remaining arguments concerning the ALJ's alleged errors on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. April 10, 2019
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).