Loper v. Commissioner of Social Security, No. 1:2017cv01849 - Document 22 (N.D. Ohio 2018)
Court Description: Opinion & Order signed by Judge James S. Gwin on 7/19/18. The Court, for the reasons set forth in this entry, overrules plaintiff's objections, adopts in part and rejects in part the Report and Recommendation of the Magistrate Judge, and affirms the decision of the Commissioner of Social Security. (Related Docs. 1 and 19 ) (D,MA)
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Loper v. Commissioner of Social Security Doc. 22 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ----------------------------------------------------------------------: : : : : : : : : : : : LATASHA LOPER on behalf of P.L., Plaintiff, vs. COMMISSIONER OF SOCIAL SECURITY, Defendant. CASE NO. 1:17-cv-1849 OPINION & ORDER [Resolving Doc. 1] ----------------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Plaintiff Latasha Loper, on behalf of P.L., a minor, seeks review of the Social Security Administration’s denial of supplemental security income (SSI).1 Magistrate Judge George J. Limbert recommended affirming the benefits denial.2 Plaintiff raises two objections.3 For the following reasons, the Court OVERRULES Pla“nt“ff’s ob”ect“on; ADOPTS IN PART and REJECTS IN PART the Mag“strate Judge’s Report and Recommendat“on (R&R); and AFFIRMS the decision of the Commissioner of Social Security. I. BACKGROUND On October 1, 2014, Plaintiff Latasha Loper protectively filed an application for supplemental security income on behalf of Claimant P.L., a child under age 18.4 Plaintiff Loper made a disability claim on behalf of Claimant P.L. for muscle stiffness and developmental delay.5 The alleged disability onset date was January 11, 2014.6 The Soc“al Secur“ty Adm“n“strat“on den“ed Pla“nt“ff Loper’s appl“cat“on “n“t“ally and upon 1 Doc. 1. Doc. 19. 3 Doc. 20. 4 Doc. 10 at 10. 5 Id. at 60. 6 Id. at 13. 2 Dockets.Justia.com Case No. 1:17-cv-1849 Gwin, J. reconsideration.7 On May 10, 2016, Administrative Law Judge Frederick Andreas conducted a hearing on her application.8 At the hearing, there was very l“ttle “n the record to support a disability finding.9 The ALJ agreed to hold evidence open before making a decision.10 On May 17, 2016, Plaintiff Loper filed a letter with the ALJ indicating that she no longer wanted her counsel’s representat“on. Pla“nt“ff Loper also “nd“cated that she was present“ng P.L.’s med“cal records to the ALJ and that she was ask“ng for a dec“s“on to be made based on these new medical records I gave today or [for the ALJ to] dismiss until more exams are scheduled. 11 On August 17, 2016, the ALJ “ssued a dec“s“on deny“ng Pla“nt“ff Loper’s cla“m.12 On October 18, 2016, Plaintiff Loper wrote a letter to the Social Security Administration stating that she had additional medical documents to present for the case and requesting more time to present evidence.13 On October 24, 2016, the Social Security Administration wrote Plaintiff Loper and told her that she could provide more evidence but that the evidence must be new and material to the issues considered at the hearing and that she must show good cause for her failure to present the evidence at the hearing.14 On May 23, 2017, the Social Security Administration wrote a letter to Senator Rob Portman’s off“ce stat“ng that they had rece“ved add“t“onal material that his office submitted to the record on Pla“nt“ff Loper’s behalf.15 Included in the additional material that Senator Portman’s office submitted was a speech-language evaluation of P.L. conducted on November 2, 2016.16 The speech-language evaluation d“agnosed P.L. w“th a moderate m“xed express“ve-receptive language 7 Id. Id. at 13, 18. 9 Id. at 27. 10 Id. at 39. 11 Id. at 126. 12 Id. at 10-15. 13 Id. at 51. 14 Id. at 49. 15 Id. at 54. 16 Id. at 55-56. 8 -2- Case No. 1:17-cv-1849 Gwin, J. d“sorder. 17 The Social Security Administration also indicated in the letter that it had received a request from Pla“nt“ff Loper for the Appeals Counc“l to rev“ew the ALJ’s dec“s“on.18 On July 14, 2017, the Appeals Counc“l den“ed Pla“nt“ff Loper’s request for rev“ew, render“ng the hear“ng off“cer’s op“n“on the Comm“ss“oner’s f“nal dec“s“on.19 The Appeals Council found that the November 2, 2016, speech-language evaluat“on does not relate to the period at issue. 20 The Appeals Council stated that the ALJ decided [Loper’s] case through August 17, 2016 and that the evaluation post-dated the date of the ALJ’s dec“s“on.21 On September 1, 2017, Plaintiff Loper filed this action seeking review of the Comm“ss“oner’s f“nal dec“s“on.22 After a referral, the Magistrate Judge filed an R&R on June 22, 2018, recommend“ng that the Court aff“rm the Comm“ss“oner’s f“nal dec“s“on.23 Plaintiff Loper makes two objections to the R&R.24 First, Plaintiff objects to the Appeals Counc“l’s and the Mag“strate Judge’s f“nd“ngs that the November 2, 2016 speech-language evaluation was not material evidence warranting remand [to the ALJ]. 25 Second, Plaintiff objects to the Mag“strate Judge’s f“nd“ng that the ALJ’s determination that Claimant P.L. did not have a severe medically determinable impairment was supported by substantial evidence.26 Plaintiff does not make any objections to any other parts of the R&R.27 II. LEGAL STANDARD The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of the R&R to which the parties object.28 The d“str“ct court may accept, reject, or modify, 17 Id. at 55. Id. at 54. 19 Id. at 1-4. 20 Id. at 2. 21 Id. 18 22 Doc. 1. Doc. 19. 24 Doc. 20. 25 Id. at 1. 26 Id. at 3. 27 See Doc. 20. 28 28 U.S.C. § 636(b)(1). 23 -3- Case No. 1:17-cv-1849 Gwin, J. in whole or in part, the findings or recommendations made by the mag“strate ”udge. 29 When rev“ew“ng an ALJ’s d“sab“l“ty determ“nat“on under the Soc“al Secur“ty Act, a d“str“ct court rev“ews whether the ALJ’s dec“s“on “s supported by substant“al ev“dence and [“s] made pursuant to proper legal standards. 30 Substant“al ev“dence “s such relevant ev“dence as a reasonable m“nd m“ght accept as adequate to support a conclus“on. 31 Substantial evidence is more than a scintilla of evidence, but less than a preponderance.32 A district court should not try to resolve confl“cts “n ev“dence[] or decide questions of cred“b“l“ty. 33 A d“str“ct court also may not reverse an ALJ’s dec“s“on when substant“al ev“dence supports it, even if the court would have made a different decision.34 In order to qualify for childhood SSI benefits, a claimant must show that he or she has a medically determinable physical or mental impairment which results in marked and severe functional limitations, and that is expected to cause death or that has lasted or can be expected to last for a continuous period of at least 12 months.35 An ALJ must proceed through sequential steps for evaluating entitlement to childhood SSI. 36 The three-step procedure requires the ALJ to determine whether a child: (1) is performing substantial ga“nful act“v“ty; (2) has a severe “mpa“rment or comb“nat“on of “mpa“rments; and (3) whether the impairment or combination of impairments are of such a severity that the impairments meet, medically equal or are the functional equivalent in severity to an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1.37 29 Id. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); see also 42 U.S.C. § 405(g). 31 Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations omitted). 32 Id. 33 Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 34 See S“terlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987); see also Jones v. Comm’r of 30 Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (hold“ng that ALJ’s dec“s“on cannot be overturned so long as ALJ’s dec“s“on was supported by substantial evidence). 35 20 C.F.R. § 416.906. 36 20 C.F.R. § 416.924(a). 37 20 C.F.R. § 416.924(a)–(d). -4- Case No. 1:17-cv-1849 Gwin, J. III. DISCUSSION A. New and Material Evidence Plaintiff argues that the Appeals Council erred by not remanding the case to the ALJ after Plaintiff submitted the November 2, 2016, speech-language evaluation to the Appeals Council after the ALJ’s dec“s“on.38 The Court disagrees with Plaintiff, but on different grounds than the Magistrate Judge. 42 U.S.C. § 405(g) permits a reviewing court to remand a case for consideration of additional evidence if the party seeking remand proves that (1) the additional evidence is new and material, and (2) that he or she had good cause for failing to offer the additional evidence during the administrative process.39 Evidence “s mater“al only “f there “s a reasonable probab“l“ty that the Secretary would have reached a d“fferent d“spos“t“on of the d“sab“l“ty cla“m “f presented w“th the new ev“dence. 40 A cla“mant shows good cause by demonstrat“ng a reasonable ”ust“f“cat“on for the fa“lure to acquire and present the evidence at the ALJ hearing.41 The Magistrate Judge erred by concluding that the November 2, 2016, evaluation is not material. The Mag“strate Judge found that the evaluat“on fa“ls to establ“sh that Cla“mant had a severe medically determinable speech impairment between January 11, 2014 through August 11, 2016, the date of the ALJ’s dec“s“on. 42 But the Sixth Circuit has rejected a bright-line rule that a medical evaluation cannot be material or probative as to the relevant time period solely because it occurred 38 Doc. 17 at 14-15; Doc. 20. See Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). The Appeals Council employs the same standard. See Doc. 10 at 2. 40 Foster, 279 F.3d at 357. (citing S“zemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988)). 41 Foster, 279 F.3d at 357 (citing W“ll“s v. Sec’y of Health & Human Servs. , 727 F.2d 551, 554 (6th Cir. 1984)). 42 Doc. 19 at 24. 39 -5- Case No. 1:17-cv-1849 Gwin, J. after the time period.43 And in this case, the additional evidence is dated less than three months after the ALJ’s dec“s“on.44 The question for this Court is not whether the evaluation by itself establ“sh[es] that Cla“mant had a severe medically determinable speech “mpa“rment 45 during the relevant time period, but only whether the evaluation is probative or material to establishing a severe medically determinable impairment. The Court cannot say with certainty that an evaluation made so soon after the date of the ALJ’s dec“s“on has no bear“ng on the per“od before the ALJ’s dec“s“on. Moreover, the evaluation (if the ALJ credited it as probative to the relevant time period) could reasonably have changed the disposition of the case because the ALJ’s dec“s“on rested heav“ly on the lack of an ob”ect“ve med“cal diagnosis.46 The evaluation arguably provides an objective diagnosis to confirm many of the symptoms that other clinicians had observed throughout the relevant time period.47 The Court therefore finds that the November 2, 2016, evaluation is material to the decision to deny Claimant benefits during the relevant time period. However, Plaintiff has failed to show good cause for her failure to obtain a similar evaluation before the ALJ’s dec“s“on. Pla“nt“ff argues that [t]h“s ev“dence was not presented at hear“ng for the good reason that [P.L.] did not undergo this evaluation until approximately two and a half months after the ALJ “ssued h“s dec“s“on on the matter. 48 But the Sixth Circuit has previously rejected this exact argument: The add“t“onal med“cal reports were prepared after the Secretary’s f“nal dec“s“on See Blankensh“p v. Comm’r of Soc. Sec., 624 F. App’x 419, 427 n.6 (6th C“r. 2015) ( [E]v“dence relat“ng to a later t“me per“od “s cons“dered m“n“mally probat“ve … and may be cons“dered by the ALJ to the extent “t “llum“nates cla“mant’s health before the exp“rat“on [of the relevant t“me per“od]. ) (c“t“ng Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988); S“terlet v. Sec’y of Health & Human Servs. , 823 F.2d 918, 920 (6th Cir. 1987)). Many of the cases finding later ev“dence not probat“ve “nvolve much longer gaps between the ALJ’s dec“s“on and the date of the ev“dence than the gap “n this case. See, e.g., Estes v. Barnhart, 275 F.3d 722, 725-26 (8th Cir. 2002) (finding evidence not probative when it dated seventeen months after the ALJ’s dec“s“on). 44 Compare Doc. 10 at 15 (establ“sh“ng date of ALJ’s dec“s“on as Aug. 17, 2016) with Doc. 10 at 56 (establishing date of speech-language evaluation as Nov. 10, 2016). 45 Doc. 19 at 24. 46 See Doc. 10 at 15 ( [T]here are no med“cal s“gns or laboratory f“nd“ngs to substant“ate the ex“stence of a med“cally determ“nable “mpa“rment. ). 47 Compare id. at 58 (prov“d“ng d“agnos“s of moderate m“xed express“ve-recept“ve language d“sorder ) with id. at 284 (observing that P.L. appeared to have a speech delay). 48 Doc. 17 at 14. 43 -6- Case No. 1:17-cv-1849 Gwin, J. and therefore could not have been presented at the hearing. While [the Ninth Circuit has accepted this argument as suff“c“ent], th“s c“rcu“t has taken a harder l“ne on the good cause test. … [I]n order to show good cause the complainant must give a valid reason for his failure to obtain the evidence prior to the hear“ng. 49 Plaintiff Loper has not presented any reason why she could not have obtained a similar evaluation before the hearing. Even when the ALJ held the record open after the hearing, there is no indication that Plaintiff attempted to obtain a speech-language evaluation. A week after the hearing concluded, Pla“nt“ff Loper even “nv“ted the ALJ to make a dec“s“on … based on these new med“cal records I gave today [May 17, 2016], 50 well before the November 2, 2016, speech-language evaluation. The good cause rule incentivizes the presentation of relevant evidence at the hearing, where the ALJ can consider the record as a whole.51 The Court holds that Plaintiff has not shown good cause for her failure to obtain relevant evidence before the hearing. Because Plaintiff Loper has not shown good cause for her failure to timely obtain relevant evidence, Sixth Circuit precedent does not permit the Court to remand this case to the Commissioner for consideration of the additional evidence. B. ALJ’s F“nd“ng of No Med“cally Determ“nable Impa“rment Plaintiff Loper also appears to argue that the ALJ erred by finding that P.L. did not have a medically determinable impairment.52 Plaintiff Loper contends53 that the Magistrate Judge erred by (1) finding that substantial evidence supported the ALJ’s decision, and (2) failing to require the ALJ to apply the S“xth C“rcu“t’s de minimus standard, which states that any medically determinable Ol“ver v. Sec’y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986). Id. at 126. 51 See Doc. 10 at 38 ( [T]he problem I have “s we had a med“cal expert l“ned up to test“fy based on what was “n 49 50 the record. You know, we don’t have any of that “nformat“on. I’m not exactly sure why we don’t. You know, we have a large backlog of people who want these hear“ng spots[.] ). 52 Doc. 20 at 3. 53 Id. -7- Case No. 1:17-cv-1849 Gwin, J. impairment greater than a sl“ght abnormal“ty that m“n“mally affects work ab“l“ty regardless of age, education, and experience qual“f“es as a severe med“cal “mpa“rment.54 The Court adopts the Mag“strate Judge’s R&R on these issues.55 First, substantial evidence supported the ALJ’s dec“s“on. Plaintiff Loper points out that there are diagnoses in the record for Claimant P.L. of developmental delay, speech disorder, esotropia and hypertonia.56 But the evidence in the record presented to the ALJ also “ncluded the follow“ng contrary ev“dence: (1) a ped“atr“c“an’s October 2014 assessment that Claimant P.L. had normal growth and development;57 (2) a ped“atr“c neurolog“st’s November 2014 examination finding that Claimant P.L. had a normal neurological evaluation and normal development;58 (3) an April 2015 pediatric assessment finding that Claimant P.L. had conjugated eyes, full range of motion and equal strength and symmetry in her extremities, normal muscle tone and bulk, and mild diffuse hypertonia that was resolving;59 (4) a March 2016 physical therapy f“nd“ng that Cla“mant P.L.’s gross motor funct“on was above average for her age; 60 (5) Cla“mant P.L.’s good performance on an occupat“onal therapy evaluat“on unt“l Pla“nt“ff Loper intervened to stop the evaluation;61 (6) evidence that initial diagnoses of developmental delay and hypertonia were not corroborated during a follow-up visit;62 and (7) the testimony of a medical expert that there was no “nformat“on “n the record of any significant impairment. 63 This evidence supports the ALJ’s decision. And the Court cannot reverse the decision of an ALJ if it is supported by substantial 54 Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). See Doc. 19 at 14-19. 56 Doc. 10 at 272, 284; see Doc. 17 at 4, 15. 55 57 Doc. 10 at 235 , 339. Doc. 10 at 245. 59 Doc. 10 at 272, 273–74. 60 Doc. 10 at 214, 217–18. 61 See Doc. 10 at 223–25. 62 Compare Doc. 10 at 232 (noting diagnosis of developmental delay) with Doc. 10 at 245 (f“nd“ng completely normal development and muscle tone three months later). 63 Doc. 10 at 14. 58 -8- Case No. 1:17-cv-1849 Gwin, J. evidence, even if substantial evidence also exists to support the opposite conclusion.64 The Magistrate Judge therefore correctly found that substantial evidence supported the ALJ’s finding of no medically determinable impairment.65 Second, the ALJ d“d not err “n fa“l“ng to apply the S“xth C“rcu“t’s de minimus standard, that holds that any med“cally determ“nable “mpa“rment greater than a sl“ght abnormal“ty that minimally affects work ab“l“ty qual“f“es as a severe med“cal “mpa“rment.66 The Magistrate Judge correctly found that [w]“thout a f“nd“ng of a med“cally determ“nable “mpa“rment, the ALJ was not requ“red to determine the severity of any impairment, which is when the de minimus standard then appl“es. 67 Because the ALJ never found the existence of an impairment, the ALJ did not err by failing to apply the S“xth C“rcu“t’s de minimus standard, wh“ch relates to an “mpa“rment’s sever“ty. IV. CONCLUSION For the above reasons, the Court OVERRULES Pla“nt“ff’s ob”ect“ons; ADOPTS IN PART and REJECTS IN PART the R&R; and AFFIRMS the decision of the Commissioner of Social Security. IT IS SO ORDERED. s/ Dated: July 19, 2018 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 64 See S“terlet v. Sec’y of Health & Human Servs. , 823 F.2d 918, 920 (6th Cir. 1987); see also Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (hold“ng that ALJ’s dec“s“on cannot be overturned so long as ALJ’s decision was supported by substantial evidence). 65 See Doc. 19 at 16-19. 66 Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). 67 Doc. 19 at 16. -9-
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