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Booker v. Colvin

United States District Court, D. South Carolina, Aiken Division

December 4, 2014

Steve Booker, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant

For Steve Booker, Plaintiff: Paul Townsend McChesney, LEAD ATTORNEY, McChesney and McChesney, Spartanburg, SC.

For Commissioner of Social Security Administration, Defendant: Barbara Murcier Bowens, LEAD ATTORNEY, U.S. Attorneys Office, Columbia, SC.


Timothy M. Cain, United States District Judge.

The plaintiff, Steve Booker (" Booker"), brought this action pursuant to the Social Security Act (" SSA"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (" Commissioner"), denying his claim for Disability Insurance Benefits (" DIB") and Supplemental Security Income (" SSI"). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Now before this court is the magistrate judge's Report and Recommendation (" Report"), recommending the court to affirm the Commissioner's decision. (ECF No. 18).[1] In the Report, the magistrate judge sets forth the relevant facts and legal standards, which are incorporated herein by reference. Booker has filed objections to the Report (ECF No. 21), and the Commissioner has responded to those objections (ECF No. 22). Accordingly, this matter is now ripe for review.


Booker applied for DIB and SSI in March 2010, alleging disability beginning on December 19, 2008.[2] Booker's application was denied initially and on reconsideration. On August 12, 2011, an Administrative Law Judge (" ALJ") heard testimony from Booker and a vocational expert. On October 7, 2011, the ALJ issued a decision denying Booker's claim.

In his decision, the ALJ found that Booker suffered from the following severe impairments: degenerative disc disease of the lumbar spine, obesity, diabetes mellitus, dyspnea on exertion, and venous insufficiency with peripheral edema. (ECF No. 18 at 13). The ALJ found that, despite Booker's limitations, jobs existed in significant numbers in the national economy that he could perform. (ECF. No. 33 at 2-3). Booker sought review of his case by the Appeals Council, and he also submitted a memorandum along with medical evidence that was not presented to the ALJ. The Appeals Council denied Booker's request for review, making the ALJ's decision the final decision of the Commissioner. This action followed.


The federal judiciary has a limited role in the administrative scheme established by the SSA. Section 405(g) of the Act provides, " the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). " Substantial evidence has been defined . . . as more than a scintilla, but less than a preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review, the court may not " undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

However, " [f]rom this it does not follow . . . that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Rather, " the courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that this conclusion is rational." Vitek, 438 F.2d at 1157-58.


Booker objects to the magistrate judge's decision that the new information submitted to the Appeals Council after the ALJ decision was not material, and, thus irrelevant as to whether he was disabled before October 7, 2011. (ECF No. 21 at 1). Specifically, Booker contends that the magistrate judge improperly found that the medical testimony of Dr. Walter Kucaba was not " new evidence" because it does not concern the time period prior to the ALJ's decision.

Evidence submitted to the Appeals Council with a 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) (internal quotation marks and citation omitted). 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. " [P]ost-[ALJ decision] medical evidence generally is admissible in an SSA disability determination in such instances in which that evidence permits an inference of linkage with the claimant's pre-[ALJ decision] condition." Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 341 (4th Cir. 2012) (citation omitted). Nonetheless, evidence should not be given retrospective consideration where there is no support for the existence of impairments or the severity alleged prior to the date of the ALJ's decision. See Johnson v. Barnhart, 434 F.3d 650, 655-56 (4th Cir. 2005) (per curiam). When a claimant seeks to present new evidence to the Appeals Council, he is not required to show good cause for failing to present the evidence earlier. Id. at 96 n.3; cf . 20 C.F.R. § 404.970(b). An examination of these cases decided by the Fourth Circuit is illustrative of these rules.

In Wilkins, the claimant injured her shoulder at work in 1981, and never returned to work. 953 F.2d at 94. Starting in 1981, the claimant began seeing Dr. Liu for depression, and continued seeing her through March 28, 1987. Id. In 1988, the ALJ decided her case, finding that she suffered from low back pain and major depression, and was unable to continue to perform her current job. Id. The ALJ awarded SSI to her, but not DIB because the ALJ found that she became disabled on March 28, 1987, after her date last insured on December 31, 1986. Id. On appeal to the Appeals Council, the claimant submitted a letter from Dr. Liu, which stated the claimant has " been very depressed" since 1981. Id. Moreover, Dr. Liu wrote that " [a]ccording to Mrs. Wilkins, from December 1986 until I saw her on March 28, 1997 both her mental and physical symptoms basically remained constant." Id. And finally, Dr. Liu ...

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