HESTER v. COLVIN, No. 1:2014cv00751 - Document 19 (M.D.N.C. 2016)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 3/31/2016; that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Com missioner under sentence four of 42 U.S.C. § 405(g). FURTHER that the Commissioner be directed to remand the matter to the ALJ for further proceedings consistent with this order. Consequently, to this extent, FURTHER that Defendant 's Motion for Judgment on the Pleadings (Docket Entry 11 ) be DENIED, and Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 9 ) be GRANTED to the extent remand is requested. FURTHER that two additional motions requesting reversal (Docket Entries 14 - 15 ) be DENIED as moot. (Sheets, Jamie)
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HESTER v. COLVIN Doc. 19 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA VALERIE HESTER, Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) |:I4CY75t MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE Plaintiff, Valetie Hester, brought this action to obtain review of a final decision of the Commissioner of Social Security denying her claim for a Period of Disability, Insurance Benefìts and Supplemental Security Income. The Court has before administrative recotd and cross-motions for judgment. Disability it the certified pocket Entries 9,11). Plaintiff has also fìled two add.itional motions requesting that the Court reverse the Commissioner. @ocket Entries 1,4, 15.)1 For the reasons set forth herein, the Court recoffünends that Defendant's motion for Judgment on the Pleadings pocket Entry 11) be denied, Plaintiffs motion fot Judgment on the Pleadings (Docket Entry 9) be granted, Plaintiffs additional motions requesting teversal of the Administrative Law Judge's (",\LJ") decision (Docket ' Plaintiff contends that the certified record contains false documents submitted by Defendants. (Docket Entry 14 at 1-4); (Docket Etttty 1.5 at 1.-2.) ,{dditionally, Plaintiff filed documents to tebut the alleged false documents submitted by Defendants. See Generalþ (Docket Enties 14, 1,5.) The Court declines consideration of these additional motions at this time. Dockets.Justia.com Entries 14,1.5) be denied as mooq2 and that this matter be remanded to the Commissioner. I. PROCEDURAL HISTORY Plaintiff filed applications for Supplemental Security Income, Disability Insurance Benefits, and a Period of Disability Benefits on November 14,201,1,. request for benefìts was denied initially and upon teconsidetation. [r. (Ir. 84-87.)3 Plaintiffs 41-42,46-53.) OnJuly 10,2012, Plaintiff fìled a request for aheanng before an ALJ. (Tt. 59-61.) The hearing was held on November 18, 2013. (Tr. 787-810.) On February 21,, 2014, the ALJ found that Plaintiff was not disabled. (fr. 18-35.) O. March 4,2014, Plaintiff filed a request fot review of the hearing decision before the,\ppeals Council. (Ir. 1,7A-17P.) OnJune 26,2014,the Appeals Council denied Plaintiffs request. Qt. 1,2-1,5.) O" -{ugust 29, 201,4, the Appeals Council set aside its eadier action "to consider additionalinformation" provided by Plaintiff and again denied Plaintiffs request fot review. (ft, 6-1,1,.) The .{ppeals Council's denial rendered the ,{.LJ's decision the final administrative action of the Commissioner in Plaintiffs case. II. STANDARD FOR REVIEW The scope of judicial review of the Commissioner's fìnal decision is specific and riarrow. Snith u. Schweiker,7gstr.2d343,345 (4th Cir. 1986). Reviewis limited to determining Between March 9,201.6, and March 30,2016, Plaintiff filed additional documents to support her contention that the ALJ's decision should be tevetsed because Defendants allegedly filed false documents. (Docket Entries 16-18.) The Coutt declines consideration of these additional documents at this time. 2 : Unless otherwise noted, transcript citations refer to the administrative record in this case which was filed with Defendant's Answer. (Docket Entry 6.) 2 if thete is substantial evidence in the tecord to support the Commissioner's decision. 42 U.S.C. $ a05G); Hanteru. Salliuan,gg3F.2d31,34 (4th Cir. 1992);Hay u. Sø//iuan,907 F.2d1453,1.456 (4th Cir. 1990). In reviewing for substanial evidence, the Court does not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissionet. Craigu. Chater,76tr.3d 585,589 (4th Cir. 1,996). The issue before the Court, thetefore, is not whether Plaintiff is disabled, but whether the Commissioner's fìnding that he is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Id. III. THE COMMISSIONER'S DECISION The,{LJ followed the well-established fìve-step sequential the claimant is disabled, which is set forth in 20 C.F.R. u. Comm'r of Soe Sec. SS analysis to ascertain whether 404.1520 and 41,6.920. See Albright Adrnin.,174 F.3ð 473, 475 n.2 (4th Cir. 1999). The ,\LJ determined at step one that Plaintiff satisfìed "the insured status requirements of the Social Security Act through June 30, 20'1,4" and that she had "not engaged substantial gainful activity since September 13,2011, theallegedonset date...." Qr.23.) TheALJ nextfoundatstep rwo that Plaintiff had thtee severe impaitments including uterine fibroids, bipolar disorder, and anxiety disorder. Qd.) At step three, the A,LJ found that Plaintiff did not have an impairment ot combination of impairments listed in, or medically equal to, ofle listed in 20 CFR Part 404, Subpatt P, ppendix 1. (fr. 24.) The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC") to perform less than the full range of light work CFR 404.1 s67(b) finding: a J as defined in 20 fPlaintiffl could occasionally lift ot carlT up to 20 pounds, frequently lift ot c tty up to 10 pounds as well as sit, stand, and walk about six hours out of an eighthour wotkday. fPlaintiff] would need to adjust positions every 30 minutes with frequent, but not constantfsic] handling and fingering. fPlaintiff] could perform occasional overhead reaching as well as understand, remember, and carlT out simple instructions with no public contact. Qr. 25.) At the fourth step, the ,\LJ determined that Plaintiff had no past relevant work. (fr. 33.) At step five, the ALJ determined that there were jobs which Plaintiff could perform consistent with her RF'C, age, education, and work experience. Qd,) IV. DISCUSSION Plaintiff contends that the ALJ failed to evaluate her cervical degenetative disc disease. The Court recommends that the case be temanded because the ALJ failed to adequately evaluate Plaintiffs cervical degenerative disc disease. The Court also recommends remand because the Appeals Council failed to address material evidence that conttadicts Plaintiffs RtrC. . The ALJ Failed to Address Evidence In that Contradicted the RFC pertinent part, Plaintiff argues that "[t]he ALJ erred in failing to evaluate claimant's documented cervical degenerative disc disease."4 Q)ocket Ent y 1,0 at the 4-5.) ,{,lthough the ALJ refetenced Plaintifls cervical degenerative disc disease, she failed to address evidence suggesting the Plaintiffs impairment requites more limitations thatare not accounted for in her RFC. "It hardly bears repeating that an,{LJ is requited to consider all relevant Plaintiff also argues that the ALJ failed "to adequately explain the weight assþed to the medical source sttement completed by the claimant's treating physician." (Docket Entry 10 at 5-10.) The Court declines considetation of the additional issues raised at this time. a 4 evidence and Coluin, to sufficiently explain the weight he gives to probative evidence." Hadson No. 7:12-CV-269-FL,201,3WL 6839672, at *4 (E.D.N.C. Dec. 23,201,3) (citing Srnokeles¡ Coal Co. u. a. Sterling Aken,131 F.3d 438,439-40 (4th Ctr.199l)). The LJ is also requited to discuss how "material inconsistencies or ambiguities" in the record were addressed. 1/.; Snkle1 u. Coluin, No. 7:13-CV-110-F'L, 2014WL 4701.928, at x4 (E.D.N.C. Sept.22,2014). Here, Plaintiff alleges that she injuted her spine while working in February (Docket Etrtty 1,0 at 4.) X-rays revealed that she had degenerative disc changes in her spine. sttain with continued myofasicial pain and some degenerative disc disease." .{LJ failed to determine whether this impairment was 23.) Defendant of 201,1. severe (Ir. 339.) or non-severe at step The two. (Ir. argues that the ALJ evaluated Plaintiffs impairment during the remaining steps. (Docket E.rtty 12 at8.) Defendant futhet contends that Plaintiff has not "established that the AIJ" failute to identify cervical degenerative disc disease as a severe impairment impacted the RFC assessment." Qd.) A review of the tecotd shows that the ALJ failed to address "material inconsistencies ot ambiguities" in the record that may require limitations not specified in the RFC. Murpþt u. Bowen,810 F.2d 433, 438 (4th Cir. 1,987) (fìnding that it could not be determined that it was harmless error fot the LJ to not address "unresolved conflicts in the evidence"); StzkleJ,201,4 WL 4701,928, at *4. Accotding to the recotd, a medical examination on March 10, 201,1,, conducted by Dr. Andrew Jones, treating physician, tevealed that Plaintiff had "[m]ild thoracolumbar scoliosis, excessive lordosis, with some resolving biomechanical imbalance; it 5 may put fPlaintif{ at increased risk for injury." (Ir. 200.) Moreover, an examination conducted by Physician Assistant Felicia Levine on March 1,,201,1, in response to Plaintiffs work related injury that caused her cervical degenerative disc disease, limited Plaintiff to: -No lifting ovet 15 lbs. -No bending more than 5 times per hour -No pushing/pulling ovet 25lbs. of force. -No reaching above shoulders. -Must wear brace. Gt.202.)s Ms. Levine conducted two other examinatjons tesulting in similar limitations on February 23,201,1, and February 7,201,1. (t 205,212.) Although these examinations u/ere conducted close to the time in which Plaintiff was injured, another examination over a year and a half later yielded similar results. This subsequent examination conducted on October 1.0,201.2, found that rated job."u (Ir. Plaintiffs üfting capacity did not even satisfi' the criteria for a "sedentary 7S3.) The ALJ did not explicitly address Dr. Jones' or Ms. Levine's findings. Moreover, Dr. Jones and Ms. Levine are not mentioned in the decision. 810 F.2d at438 (finding that [t21,-35); Murpþ4 the,{LJ's failure to address "unresolved conflicts in the evidence" was not harmless error); Adams u. Coluin, No. 5:14-CV-689-KS,2016WL 697138, at*4 s,\lthough Ms. Levine is not a physician, here examination should still be considered. "[T]he ALJ must considet opinions of 'other'-i.s., non-'acceptable' sources-such as those of a cetified physician's assistant." Carter u. Coluin, No. 5:12-CV-736-trL,2014WL 351,867, at *5 (E.D.N.C. Jan. 31,2014) (citing 20 C.F.R. S 404.1513(d)); SSR 06-03P 2006WL2329939 (Aug. 9,2006) (stating that "[o]pinions from þhysician assistantsl, who not technically deemed'acceptable medical sources' ^re under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file"). This examination was submitted after the ALJ's decision. Nevertheless, it indicates that Plaintiff may have been subject to furthet limitations not found in the RFC over ayea;r and half after the findings of Dr. Jones and Ms. Levine. 6 6 (E.D.N.C. Feb. 22, 201,6) (remanding because the ALJ failed to reconcile his RF'C determination, fìnding the plaintiff capable of the full range of medium work, with conflicting evidence allowing the plaintiff to obtain Medicaid benefits). This is troubling considering that the ALJ found in Plaintiffs RFC that "fPlaintiff] could occasionally pounds, frequently reaching . lift or ctry \rp to 10 pounds lift on c^rry up to 20 . . . [and] could perform occasional overhead . . ." Qr. 25.) Ms. Levine's examination places more limitations on Plaintiff. ,{.ccording to Ms. Levine's examination, Plaintiff could not lift more than 15 pounds, bend more than five times an hout, not could she reach overhead. [r202.) Furthermore, the ALJ does not address Dr. Jones' examination revealing that Plaintifls thoracolumbar scoliosis, excessive lordosis, and biomechanical imbalance may put Plaintiff at an increased risk for injury. (Tr. 200.) In fact, these impairments were not acknowledged at step two, nor were they mentioned elsewhete in the decision. (Tt. 21,-35.) The ALJ does not address any of these discrepancies. Therefote, the Court cannot determine whether the,ALJ's decision is based on substantial evidence. B. The Coutt Cannot Determine Whethet the Appeals Council Considered Material Evidence Subsequently Submitted by Plaintiff After the,\LJ's Decision Defendant contends that Plaintiff "[did] not and cannnt, establish that the ALJ's failure to identi$r cervical degenerative disc disease as a severe impairment impacted the RF'C assessment." (Docket Entty 12 at 8) (emphasis added). The Court's review of the entire record shows that evidence before the ALJ, concerning Plaintiffs impairment, contadicts the RFC; and that the Appeals Council did not consider material evidence submitted after the ALJ's February 21,2014, decision that contradicts the Plaintiffs RFC. Part of the evidence 7 submitted to the .{ppeals Council included an examination conducted on October 1,0,201,2. (Ir. 783.) Plaintiff only submitted 9 pages of the examination. Çr.774-83.) It appears that the examination is 17 pages long. It is unclear who conducted the examination. However, the pages submitted detail a surnmary of the work related injury that caused Plaintiffls cervical degenerative disc disease, Plaintiffs other impairments, and the results of various test to evaluate Plaintiffs mobility, strength, dexterity, grip strength, and fitness. Çr. 84-82.) The results of the test with a detetmination of Plaintiffs capacity to work is also provided. (Ir. 783.) The findings indicate that "fPlaintiffl demonstrates performance suggestive of ability to meet some positional tolerances for a sedentary rated job however, lifting capacity is signifìcantly impaired and does not meet the criteria for even a sedentary rated job." (Tr. 783.) The Appeals Council considered the additional information and found that provide a basis for changing the [ALJ's] decision." (Tr. 7.) it "does not The Appeals Council indicated that several documents teceived wete duplicates but failed to addtess the October 10, examination that contradicts the RFC. Qd.) -{fter teviewing 201,2, the record, the undetsigned is persuaded that rcmand is ptoper. The administrative scheme for handling Social Security claims permits the claimant to offer evidence in suppott of the claim initially to the "A.LJ. 20 C.F.R. S 404.1513. Once the '\LJ renders a decision, the claimant is permitted to submit new and material evidence to the Appeals Council as part of the process for requesting review of an adverse ,{.LJ decision. 20 C.F.R. 7 SS 404.968,404.910þ).t This new evidence is then made part of the record. The More specifically, 20 CFR S 404.970(b) provides that: 8 regulations, however, do not requite the Appeals Council to exptessly aticulate the weight of the newly ptoduced evidence and reconcile it with previously ptoduced evidence before the ,{LJ Instead, the ppeals the case and, if it Council is only required to make a decision on whether to review chooses not to graît a teview, there is no express tequirement that the Appeals Council articulate a reason for denying further review. Meyr u. Attraq 662F.3d700, 706 (4th Ctu.2011). As the Fourth Circuit tecently addtessed in Me1er, the difficulty arises under this regulatory scheme on review by the courts where the newly produced evidence is made part of the recotd for purposes of substantial evidence review, but the evidence has not been weighed by the fact finder or reconciled with other relevant evidence. Id. at707 . In Meyr, the ,{LJ denied benefìts to a claimant based, in part, on the lack of any medical opinion from tteating physician addressing restrictions. Id. ^t a 103. .{fter the claimant submitted a medical opinion from his ffeating physician setting forth restrictions to the Appeals Council, the Appeals Council considered the additional evidence, but denied review of his case without any futher explanation. The ,A,LJ's decision became the decision of the Commissioner. Id. at If new and material evidence is submitted, the Appeals Councü shall consider the additional evidence only where it telates to the period on or before the date of the administrative law judge headng decision. The ,{,ppeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then teview the case if it finds that the administmtive law judge's action, findings, or conclusion is conttary to the weight of the evidence currently of record. 20 cFR S 404.e70(b) 9 703-04. The district court af{ìrmed the Commissioner's decision, but the Fourth Circuit reversed. Id. at707. The Fourth Circuit held that the tegulatory scheme does not tequite the Appeals Council to explain its reasoning when denying review of an ,{.LJ decision. Id. at706. Nevertheless, the Fourth Circuit ultimately concluded that it could not determine whether the ALJ's decision was based upon substantial evidence. Id. at 707. The Fourth Circuit reasoned that an ALJ's denial of benefits should be afftmed rf, "after reviewing new evidence presented to the ,{,ppeals Council, 'substantial findings."' Id. (crttngSmith u. Chater,99 evidence supported the ALJ's F.3d 635,638-39 (4th Cit. 1996)). "Conversely, when consideration of the record as a whole revealed that new evidence from a tteating physician was not controverted by other evidence in the tecord, we have teversed the ALJ's decision and held that the AIJ'. denial of benefits was 'not supported by substantial evidence."' Id. (citingll/ilþ,insu.Sec)¡Dep'tofHeahhdyHananSeras.,953F.2d93,96 (4thCir. 1,991) (enbanc)). The Foutth Circuit observed that "no fact fìnder has made any fìndings as to the teating physician's opinion or attempted to reconcile that evidence with the conflicting and supporting evidence in the record." Id. Because "[a]ssessing the probative value of competing evidence is quintessentially the role of the fact fìnder," the Fourth Circuit concluded that undertake it in the it "cannot ftst instance." Id. This case is similar to Me1er and should be temanded. Hete, no fact findet has made any findings as to an October 1.0,201.2, examination submitted by Plaintiff that conflicts with the -A.LJ's RFC. (Tr. 783.) In pertinentpaLrt, the ALJ's RFC limits Plaintiff to "occasionally liftfing] or carryfing] up to 20 pounds, ftequently liftfing] or carry[ing] up to 10 pounds t0 as well as sit[ing], stand[ing], and walk[ing] about six hours out of an eight-hour workday." Çr. 25.) To the contrat1y, the examination submitted by Plaintiff states that Plaintiff has the capacity to do some "sedentary rated job[s] however," her ability to lift is not even sufficient for "sedentary rated job." (fr. 783.) .{s noted it competing evidence is quintessentially the tole a Meyr, "assessing the probative value of of the fact finder" and this Court is not authorized to undertake the analysis in the Ftst instance. Me1ter,662F.3d at707 Given the natute of this new and unreconciled evidence, it is impossible to determine whether the,\LJ's decision is based on substantial evidence. For example, there are signifìcant differences between the RFC and the new examination with respect to Plaintiffs ability to objects and stand for long periods of time. Çr. 25,783.) This new documentation lift also corroborates the fìndings of Plaintiffs treating physician Dt. Howard Eisenson. Dt. Eisenson found that Plaintiff could "do fairly sedentary work that would allow frequent changes in position" which were ultimately dismissed by the ALJ. (Tr. 600.) In light of the holding in Meler, the undersigned is persuaded that a fact finder should consider any additional evidence and reconcile it with the conflicting and suppotting evidence intherecord. Dryr.Coluin,No. 1:13CV300,201,5WL4600516,atx3(M.D.N.C.JuIy29,201,5) (concluding that the court could not direct a finding of disability because new evidence submitted to the Appeals Council weakened the court's teasoning that there was not a history of treatment of the plaintiffs plantar fascütis and requited additional fìndings to be made); Parker u. Coluin, No. 1:11CV746,2014WL 4386291, at x4 (À4.D.N.C. Sept. 4,201,4) (finding that the matter required temand because it could not be determined "whethet 1l the Appeals Council consideted or tejected the additional evidence in accordance with the applicable regulatory ptovisions, and because the additional evidence involves a competing or conflicting opinion by a ftea:J;ng physician Coleman u. Coluin, that may tequite teconciliation lry a fact-findet"); ll/il¡on- No. 1:11CV726,201,3WL 6018780, at x7 (À4.D.N.C. Nov. 12,2013) (fìnding that the fact fìndet should have considered the new evidence that corroborated the fìndings of a another physician and helped "to fill at least paft of an evidentiary g p in the record regarding fthe plaintiffs] mental health treatment" and reconcile it with the conflicting and supporting evidence in the record). The Court expresses no opinion tegardingwhether Plaintiff is ultimately disabled under the -A.ct and the Court declines consideration of the additional issues raised at this time. Hancoc/< u. Barnhart,206 tr. S.rpp. 2d 757,763-764 n.3 flXz.D. Ya. 2002) (reasoning that on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). V. CONCLUSION IT IS THEREFORE RECOMMENDED that the Commissionet's decision fìnding no disability b. REVERSED, and that the matter be REMANDED ro rhe Commissionet under sentence four of 42 U.S.C. $ a05@. IT IS FURTHER RECOMMENDED that the Commissioner be directed to remand the matter to the ALJ for further proceedings consistent with this order. Consequently, to this extent, IT IS FURTHER RECOMMENDED that Defendant's Motion for Judgment on the Pleadings (Docket E.ttty 11) be DENIED, and Plaintiffs Motion fot t2 Judgment on the Pleadings pocket E.rtty 9) be GRANTED to the extent remand is requested. IT IS FURTHER RECOMMENDED that two additional motions requesting tevetsal (Docket Entries 1,4-1,5) be DENIED as moot. T}ri, 3Lsf,"y of March , 2o't 6 L. Uni 13 ebstet tates MagisttateJudge
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