Opinion
C/A No. 0:18-645-BHH-PJG
06-18-2019
Benjamin Stiles Mikell, Jr., 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, Benjamin Stiles Mikell, Jr., 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"). 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) and (d)(5), 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); 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). 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).
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); 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 July 2012, Mikell applied for DIB, and later amended his disability onset date to September 1, 2009. Mikell's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on June 24, 2014, at which Mikell appeared and testified, and was represented by James D. Callahan, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on July 21, 2014 finding that Mikell was not disabled from September 1, 2009 through the date last insured of March 31, 2010. (Tr. 157-65.) The Appeals Council granted Mikell's request for review and issued an order on December 5, 2015 vacating the hearing decision and remanding the case for further proceedings. (Tr. 173-74.) The Appeals Council instructed the ALJ to resolve the following issue:
• The hearing decision does not contain an evaluation of the nontreating source opinion in Exhibit 14F at page 2 (March 17, 2010). In Exhibit 14F at page 2, consulting examiner Norman Bettle, M.D., opines, among other things, that the claimant can only work for 4 to 5 hours a day and can only sit for 4 hours in a day. It is necessary to evaluate Dr. Bettle's opinion in Exhibit 14F at page 2. The Appeals Council also notes that Dr. Bettle's opinion contains some unclear lifting restrictions. It is necessary to obtain clarification of these restrictions from Dr. Bettle. The Appeals Council also notes that the hearing decision (Decision at page 6/paragraph 5) reports that, in a different examination report, Dr. Bettle reported that the claimant's symptoms may be aggravated by carrying 20 pounds (Exhibit 14F at pages 3 to 4-December 16, 2009). Dr. Bettle, however, actually reported that the claimant's symptoms may be aggravated by carrying items of 10 to 20 pounds. It is necessary to evaluate further Dr. Bettle's opinion in Exhibit 14F at pages 3 to 4.(Tr. 173.) The Appeals Council also directed the ALJ as follows:
• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, (1) obtain clarification from Dr. Bettle regarding the lifting limitations indicated in his opinion in Exhibit 14F at page 2, evaluate Dr. Bettle's opinion in Exhibit 14F at page 2 pursuant to the
provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence, and (2) further evaluate the opinion of Dr. Bettle in Exhibit 14F at pages 3 to 4.(Tr. 173-74.)
• If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Rulings 83-12, 83-14 and 96-9p). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence, the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
A second hearing was held on May 19, 2016, at which Mikell appeared and testified and continued to be represented by James D. Callahan, Esquire. The ALJ also heard testimony from a vocational expert. The ALJ issued a decision on July 20, 2017 finding that Mikell was not disabled from September 1, 2009 through the date last insured of March 31, 2010. (Tr. 13-22.)
Mikell was born in 1963and was forty-seven years old on his date last insured. (Tr. 20.) He has a high school education and past relevant work experience as an electronics technician with the United States Navy. (Tr. 368.) Mikell alleged disability due to degenerative disc disease, depression, anxiety, a damaged heart, high blood pressure, and high cholesterol. (Tr. 367.)
In applying the five-step sequential process, the ALJ found that Mikell had not engaged in substantial gainful activity since his amended alleged onset date of September 1, 2009 through his date last insured of March 31, 2010. The ALJ also determined that, through the date last insured, Mikell's lumbar degenerative disc disease was a severe impairment. However, the ALJ found that, through the date last insured, Mikell 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 further found that, through the date last insured, Mikell retained the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c). Specifically, the claimant was able to lift and carry up to 50 pounds occasionally and 25 pounds frequently, could frequently sit and occasionally stand and walk, could occasionally stoop, kneel, crouch, and crawl, could push/pull up to 25 pounds, could frequently climb ramps and stairs and could never climb ladders, ropes, or scaffolds.(Tr. 17.) The ALJ found that, through the date last insured, Mikell was unable to perform any past relevant work. However, the ALJ found that, through the date last insured, considering Mikell's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Mikell could perform. Accordingly, the ALJ found that Mikell was not disabled from September 1, 2009 through the date last insured of March 31, 2010.
The Appeals Council denied Mikell's request for review on January 23, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-4.) 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
Mikell raises the following issues for this judicial review:
I. The ALJ obtained and considered new post-hearing evidence that she did not proffer to the Plaintiff as required by the Commissioner's regulations and due process.
II. The ALJ ignored medical source opinion statements from treating and exam[in]ing physicians, including a report the Appeals Council specifically ordered the ALJ to evaluate.
III. It was error for the ALJ to give "little" weight to the opinions of Plaintiff's treating physicians and the consulting examining specialist, and to ignore the observations of lay witnesses.
IV. The ALJ failed to find that Plaintiff's chronic pain requiring narcotic medications, as well as impaired concentration, depression, and anxiety were "severe impairments."
V. The ALJ failed to evaluate the Plaintiff's credibility as required by the Commissioner's regulations and law.(Pl.'s Br., ECF No. 17.)
VI. It was error for the ALJ to promulgate an incomplete "residual functional capacity" (RFC) that improperly failed to accommodate all of claimant's exertional and nonexertional limitations, and to rely on vocational testimony based on the deficient RFC.
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 claims was filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Mikell's application for benefits was filed, unless otherwise specified.
Although Mikell raises several issues for this judicial review, the court is constrained to find that remand is warranted for the ALJ to fully and properly comply with the directives of the Appeals Council. As indicated above, the Appeals Council specifically remanded this matter for the ALJ to "(1) obtain clarification from Dr. Bettle regarding the lifting limitations indicated in his opinion in Exhibit 14F at page 2, evaluate Dr. Bettle's opinion in Exhibit 14F at page 2 pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence, and (2) further evaluate the opinion of Dr. Bettle in Exhibit 14F at pages 3 to 4." (Tr. 173-74.)
The entirety of the ALJ's discussion of Dr. Bettle's opinions was as follows:
Dr. Norman Bettle performed an examination on the claimant in December 2009 (Exhibit 14F). On presentation, the claimant complained of chronic lower back pain with some radiation into the left leg. On appearance, the claimant presented as in pain and appeared stiff when trying to stand and walk. The claimant's affect was moderately decreased in range. On physical examination, the claimant had normal tone and bulk in his upper and lower extremities; strength was normal for knee
flexion/extension and foot dorsi/plantar flexion with some intermittent giveway weakness on the left sided exam. No abnormal movements were noted. The claimant's neurological examination was normal, as well. Straightening of the claimant's lumbar lordosis was seen. Dr. Bettle stated that he would not foresee the claimant returning to work lifting in excessive of 50 pounds. Dr. Bettle also stated that any prolonged sitting or carrying items even of medium weight (defined as 10-20 pounds) may aggravate his symptoms.(Tr. 18-19.)
Pursuant to the Appeals Counsel [sic] Order, medical interrogatories were sent to Dr. Bettle in June 2017 to clarify his medical opinion. When asked about specific lifting restrictions, Dr. Bettle deferred to the functional capacity evaluation completed by Dr. Bright McConnell for a Worker's Compensation evaluation. Dr. Bettle offered no additional clarification or information.
A careful review of the ALJ's decision reveals that the ALJ did acknowledge that Dr. Bettle issued the opinion in Exhibit 14 at pages 3 to 4; however, the ALJ failed to mention Dr. Bettle's opinions in Exhibit 14 at page 2 and further failed to state what weight, if any, was given to the opinions, or otherwise discuss any of the factors listed in § 404.1527. Also concerning is the fact that the ALJ did not reach out to Dr. Bettle to seek clarification as to his opinion until over a year after Mikell's second hearing. The ALJ received Dr. Bettle's response and then promptly issued her opinion without notifying Mikell of the additional evidence or giving him an opportunity to respond or provide argument as to Dr. Bettle's response. See, e.g., 20 C.F.R. § 404.916(f) ("Opportunity to review and comment on evidence obtained or developed by us after the hearing. If, for any reason, additional evidence is obtained or developed by us after your disability hearing, and all evidence taken together can be used to support a reconsidered determination that is unfavorable to you with regard to the medical factors of eligibility, we will notify you, in writing, and give you an opportunity to review and comment on the additional evidence."). The court is unable to agree with the Commissioner that these actions amount to harmless error or that the court can assume that the ALJ properly considered Dr. Bettle's opinions and gave them little weight. The court is simply unable to determine whether the ALJ's decision is supported by substantial evidence. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). Where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Thus, the court is constrained to recommend that this matter be remanded for further consideration and for the ALJ to fully comply with the Appeals Council's order.
Accordingly, the court expresses no opinion as to whether further consideration of Dr. Bettle's opinions by the ALJ should necessarily lead to a finding that the opinion is entitled to additional weight or that Mikell is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Mikell'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, Mikell 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.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE June 18, 2019
Columbia, South Carolina
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).