Opinion
C/A No. 0:17-1438-BHH-PJG
05-23-2018
Dellana Watts, 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, Dellana Watts, 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 her 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 her past relevant work; and
(5) whether the claimant's impairments prevent her 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 she is unable to return to her past relevant work because of her 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 November 2014, Watts applied for DIB and SSI, alleging disability beginning October 15, 2014. Watts's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on August 5, 2016 at which Watts, who was represented by Jason L. Sturkie, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on February 15, 2017 concluding that Watts was not disabled from October 15, 2014 through the date of the decision. (Tr. 14-25.)
Watts was born in 1966 and was forty-eight years old at the time of her alleged disability onset date. She has a high school education and has past relevant work experience as an inspector, a laborer at a chicken farm, a sales associate at a convenience store, and a cashier/cook. (Tr. 228, 250.) Watts alleged disability due to a pinched nerve, lower back pain, and numbness in her left foot. (Tr. 227.)
In applying the five-step sequential process, the ALJ found that Watts had not engaged in substantial gainful activity since October 15, 2014—her alleged onset date. The ALJ also determined that Watts's lumbar degenerative disc disease status post spinal fusion; right knee degenerative joint disease/osteoarthritis; hypothyroidism; and morbid obesity status post bariatric surgery were severe impairments. However, the ALJ found that Watts 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 Watts retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can never climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to hazards.(Tr. 17.) The ALJ found that Watts was capable of performing past relevant work as an inspector and her combined job as cashier and short order cook, and that these jobs did not require the performance of work-related activities precluded by Watts's residual functional capacity. Therefore, the ALJ found that Watts was not disabled from October 15, 2014 through the date of the decision.
Watts submitted additional evidence to the Appeals Council, which denied Watts's request for review on April 18, 2017, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) 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
Watts raises the following issues for this judicial review:
I. The Appeals Council failed to properly evaluate the new evidence from Watt's treating physician, Dr. Sticca.(Pl.'s Br., ECF No. 15.)
II. In light of Dr. Sticca's additional limitations that would limit Watts to sedentary work, the Appeals Council and ALJ committed reversible error by not considering Watts's age as of March 29, 2016 and by not explaining how the Claimant's age was considered in making the benefit determination. Based on Watt's age, Dr. Sticca's controlling opinion limiting Watts[] to a maximum residual function of sedentary work necessitates a finding of disability.
DISCUSSION
Watts's issues stem from the fact that after the ALJ's decision, Watts submitted new evidence to the Appeals Council consisting of a representative brief dated March 23, 2017 (Tr. 327-28) and a treating source statement dated February 24, 2017 from Dr. Jonathon Sticca (Tr. 651-54). Watts argues that, based on this opinion from her treating physician, reversal and remand for an award of benefits is warranted. In the alternative, Watts argues that remand is warranted for the Commissioner to properly consider and weigh the new opinion evidence from Dr. Sticca.
The Appeals Council admitted both pieces of evidence into the record and considered them. (Tr. 5, 1-4.) However, the Appeals Council summarily stated as follows:
In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council.
We considered whether the Administrative Law Judge's action, findings, or conclusion is contrary to the weight of evidence currently of record.
We concluded that the additional evidence does not provide a basis for changing the Administrative Law Judge's decision.(Tr. 2.)
The law provides that 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)). Evidence is new "if it is not duplicative or cumulative." Id. at 96. "Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Id. Effective January 17, 2017, the claimant is required to show good cause for not informing the ALJ about or submitting the evidence prior to the hearing. See 20 C.F.R. §§ 404.970(b), 416.1470(b).
In this case, the parties do not appear to dispute that the additional evidence relates to the period on or before the date of the ALJ's decision.
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 Watts, the new evidence warrants remand under controlling law because Dr. Sticca's opinion renders the ALJ's findings unsupported by substantial evidence. Importantly, Watts argues that at the time of the ALJ's decision, the record did not contain any opinions from a treating physician. Watts argues that Dr. Sticca's opinion contradicts the ALJ's finding that Watts could perform light exertional work.
As an initial matter, the Commissioner argues that the evidence was not "new," and in support of this argument improperly relies 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"). Supporting the court's rejection of the Commissioner's position that this evidence is not "new" is the fact that the Appeals Council accepted and made the additional evidence part of the record, rather than returning or rejecting it, and considered the additional evidence as part of its review. Cf. 20 C.F.R. §§ 404.970(c), 416.1470(c) ("If you submit additional evidence that does not relate to the period on or before the date of the administrative law judge hearing decision as required in paragraph (a)(5) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 404.935, the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to file a new application.").
As stated above, pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits; however, this review is limited. Remand is permitted pursuant to either sentence four or sentence six of § 405(g). See Shalala v. Schaefer, 509 U.S. 292, 296 (1993) (stating sentence four and sentence six are the "exclusive" methods by which courts may remand social security appeals). Under sentence four, review is limited to the pleadings and the administrative record. See 42 U.S.C. § 405(g); Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en banc) (" 'Reviewing courts are restricted to the administrative record in performing their limited function of determining whether the Secretary's decision is supported by substantial evidence.' ") (quoting Huckabee v. Richardson, 468 F.2d 1380, 1381 (4th Cir. 1972)). Sentence six provides an avenue for remand where there is new information that is not part of the administrative record. The court may remand a case under sentence six of 42 U.S.C. § 405(g) "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); see also Schaefer, 509 U.S. at 297 n.2 ("Sentence-six remands may be ordered in only two situations: where the [Commissioner] requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency.") (citations omitted).
Therefore, the court must " 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record' " and determine whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard. Meyer, 662 F.3d at 704 (alterations in original) (quoting Wilkins, 953 F.2d at 96). The Commissioner argues that remand is not warranted for consideration of this additional evidence because unlike in Meyer, the ALJ did not suggest an evidentiary gap played a role in the decision. The Commissioner further offers reasons for discounting Dr. Sticca's opinion, including that it is inconsistent with the record as a whole.
Upon review of the record as a whole, including the new evidence that the Appeals Council specifically incorporated into the administrative record, the court is unable to determine whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard. Meyer, 662 F.3d at 704. As discussed above, the Appeals Council is not required to explain its reasoning in denying review. However, the court cannot tell whether the Commissioner's decision is supported by substantial evidence based on the circumstances of this case because the Appeals Council did not provide any explanation for its finding that this opinion did not provide a basis for changing the ALJ's decision. Specifically, the court finds that there is a reasonable possibility that the ALJ may change his opinion in light of the opinion evidence from Dr. Sticca and therefore cannot agree with the Commissioner's argument that this evidence is not material. 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."). Although the Commissioner argues that this opinion is contradicted by the record, the court does not find the record so clear. Without any substantive analysis by the Appeals Council and based on the facts and circumstances of this case, the court is simply unable to agree. Therefore, the court is constrained to recommend that this matter be remanded.
The court expresses no opinion as to whether further consideration of the evidence by the ALJ should lead to a finding of disability during the time period at issue. Further analysis and discussion may well not affect the ALJ's conclusions in this case.
Moreover, although Watts seeks a reversal and remand for an award of benefits, the court finds that Watts's entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above discussed evidence by the Commissioner in the first instance. See Crider v. Harris, 624 F.2d 15 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record); Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) ("Whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court.") (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) ("Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than 'reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A.").
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. May 23, 2018
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