Opinion
4:21-CV-00061-FL
08-11-2022
JAMES SUTTON, JR., 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-16, -19] pursuant to Fed.R.Civ.P. 12(c). Pro se Plaintiff James Sutton, Jr. (“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 his application for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). Plaintiff submitted one attachment in support of his motion [DE-16-1], and Defendant submitted a memorandum in support of its respective motion [DE-20]. 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, the motions, memoranda, and filings submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings [DE-16] be denied, Defendant's Motion for Judgment on the Pleadings [DE-19] be allowed, and the final decision of the Commissioner be upheld.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability, DIB, and SSI on July 8, 2019, alleging disability beginning July 20, 2010. Transcript of Proceedings (“Tr.”) 144-45; 24558. Both claims were denied initially. Tr. 114-45, 177-84. Plaintiff filed a request for reconsideration (Tr. 185-87) and was denied upon reconsideration on November 26, 2019 (Tr. 17576). On December 23, 2019, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 198-99. A hearing before the ALJ was held on May 28, 2020, at which Plaintiff, represented by a non-attorney representative, and a vocational expert (“VE”) appeared and testified. Tr. 40-67. On September 16, 2020, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 17-39.
On November 2, 2020, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 242-44. On January 12, 2021, the Appeals Council denied Plaintiff's request for review. Tr. 6-10. 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. §§ 404.1520 and 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. §§ 404.1520a(b)-(c) and §§ 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. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(4), 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 17-34. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since July 20, 2010, the alleged onset date. Tr. 23.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease with a lumbar fusion; hypertension; neuropathy; bipolar disorder; generalized anxiety disorder; and posttraumatic stress disorder. Tr. 23. The ALJ also found Plaintiff had non-severe impairments of: obesity; headaches; cannabis use; and methamphetamine use. Tr. 23. 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. 24.
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; moderate limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and moderate limitation in adapting or managing oneself. Tr. 25.
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 8-hour 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.
he can frequently climb ramps and stairs; occasionally climb ladders, ropes, or scaffolds; frequently balance, kneel, and crawl; occasionally stoop and crouch; and can have occasional exposure to hazards. Further, the claimant is capable of understanding and retaining simple instructions; can sustain concentration, persistence, and pace for simple tasks; can frequently interact with coworkers, supervisors, and then public; and can tolerate occasional changes in the workplace.Tr. 26. In making this assessment, the ALJ found Plaintiff's statements about his limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 27.
At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of his past relevant work as a warehouse worker or industrial truck operator. Tr. 31-32. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 32-33.
V. DISCUSSION
A. The ALJ's five-step sequential evaluation process
In his one-page motion for judgment on the pleadings [DE-16], Plaintiff does not allege any error by the Commissioner and does not include any argument relating to the Commissioner's findings or otherwise. Instead, he merely asserts that he is “unable to work . . . and suffer[s] from physical and mental disabilities[,]” and requests that the “original disability determination be reversed and my disability benefits be granted.” [DE-16] at 1. In full, Plaintiff's filing states:
1. I am unable to work.
2. I suffer from physical and mental disabilities. I have attached a statement from my primary care doctor verifying my disabilities.
3. I motion that my original disability determination be reversed and my disability benefits be granted.Id. Similarly, in the portion of Plaintiff's complaint - a completed three-page complaint form -designated for “[t]he acts complained of in this suit concern” he states, “A full case review has not been done. I have been unable to work over 10 years due to physical and mental disabilities. Proof of my illness and disability has been submitted to Social Security and I have been denied disability, which I deserve and earned.” [DE-5] at 2. Plaintiff provides that the relief sought is a “[f]ull case review and be awarded [sic] full Social Security disability income.” Id. at 3.
Because Plaintiff is appearing pro se, the court must liberally construe his 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 him.” 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-20] at 1-2. 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 4-23. 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 in determining that Plaintiff was able to perform jobs existing in significant numbers in the national economy, the ALJ properly considered the objective and other medical evidence, medical opinions, and Plaintiff's own testimony.
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
Attached to Plaintiff's motion for judgment on the pleadings is a single, one-page document [DE-16-1], described by Plaintiff as “a statement from my primary care doctor verifying my disabilities.” [DE-16]. The undated document is on letterhead from UNC Primary Care at Goldsboro and appears to contain the signature of Deepak Cuddapah, M.D. The document also appears to be related to a medical visit occurring on October 19, 2021, approximately thirteen months after the ALJ's written decision was issued. The document states in full:
Dr. Cuddapah appears to be one of Plaintiff's primary care physicians with UNC Health. The Transcript includes treatment records from Dr. Cuddapah at ¶ 10F, C11F and C12F, relating to visits on February 13, 2020, April 15, 2020 and June 30, 2020. In her written decision, the ALJ states that this evidence was submitted less than five days before Plaintiff's hearing, but was admitted to the record and “reviewed by the [ALJ] and considered in making [her] decision.” Tr. 20. The ALJ also explicitly refers to findings in Dr. Cuddapah's treatment records multiple times in assessing Plaintiff's RFC. See, e.g., Tr. 28 (“An examination demonstrated tenderness to palpation of the lumbar spine and right leg, as well as positive straight leg raise (Ex. C10F/3-4).”).
To Whom It May Concern,
James Sutton was seen at UNC Primary Care on 10/19/2021 and has been deemed unable to work due to mental and physical disabilities. Thank you for your understanding on this matter. If you have any questions or concerns please contact my office. Thank you.[DE-16-1].
In liberally construing Plaintiff's filings (see Biggs, 2011 WL 3664572, at *1), the court treats the medical statement submitted by Plaintiff as an allegation that remand is required for the ALJ to consider additional evidence. In considering this argument, the undersigned 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.
First, 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). Second, 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. And, “[e]vidence dated after the ALJ's decision relates back if it provides additional insight into impairments the claimant suffered while the ALJ was reviewing his 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 his 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)). Third, 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 99100). 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 his motion for judgment consists of a one-page statement related to a medical visit with UNC Primary Care on October 19, 2021. See [DE-16-1]. The document contains the opinion by one of Plaintiff's treating physicians, Dr. Cuddapah, that Plaintiff “has been deemed unable to work due to mental and physical disabilities.” Id. The document does not provide any additional corresponding information, such as treatment notes, relating to Plaintiff's impairments, diagnoses, or treatment. 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 it does not relate back to the period on or before the date of the ALJ's decision and there is not a reasonable probability that it would have changed the outcome of the ALJ's decision.
As discussed above, the additional evidence is an opinion by Dr. Cuddapah's as to Plaintiff's disability status as of October 19, 2021, more than thirteen months after the ALJ's written decision was issued. Nothing in the statement indicates that Dr. Cuddapah's opinion is intended to relate to Plaintiff's disability status prior to the opinion, and before the ALJ issued her written decision. Thus, the evidence fails to “provide[] additional insight into impairments [Plaintiff] suffered while the ALJ was reviewing his case.” Owen, 2015 WL 13735428, at *5 (citing Wilson, 2014 WL 2040108, at *4); see also Gorham v. Astrue, No. 4:05-CV-00136-FL, 2008 WL 5085086, at *4 (E.D. N.C. Nov. 24, 2008) (citing Jackson v. Barnhart, No. 5:05CV00066, 2006 WL 2099132, at *4-5 (W.D. Va. July 27, 2006)) (finding a medical source statement newly submitted not material because “all the questions on the [medical source statement] are phrased in the present tense, and absent any disclaimer to the contrary, the plain reading of the form in that Dr. Mebane was identifying plaintiff's impairments as they currently existed, ten (10) months after the relevant time period for the ALJ's determination”). Additionally, there is also not a “reasonable possibility that the new evidence would have changed the outcome” of the ALJ's decision. Wilkins, 953 F.2d at 96. For claims filed on or after March 27, 2017, statements by a medical provider on issues reserved to the Commissioner, such as a “[s]tatement that [a claimant] [is] or [is] not disabled, blind, able to work, or able to perform regular or continuing work[,]” are considered to be “inherently neither valuable or persuasive ....” 20 C.F.R. §§ 404.1520b(c), 416.920b(c). Because Dr. Cuddapah's statement that Plaintiff is “unable to work” is neither inherently valuable nor persuasive under the regulations, there is not a “reasonable probability” that it would have changed the outcome of the ALJ's decision, even if did 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-16] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-19] 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 August 26, 2022 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her 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 within 14 days of the filing of the objections.
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).