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Wise v. Colvin

United States District Court, District of South Carolina

December 29, 2014

Gary Legrande Wise, Plaintiff,
v.
Carolyn W. Colvin, Commissioner of Social Security, Defendant.

ORDER

Richard Mark Gergel, United States District Judge

Plaintiff brought this action pro se pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). In accord with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate Judge for pre-trial handling. The Magistrate Judge issued a Report and Recommendation ("R & R") on November 24, 2014, recommending that the Commissioner's decision be affirmed. (Dkt. No. 42). Plaintiff was provided notice of his right to file written objections to the R & R within 14 days of service and advised that a failure to file objections may result in limited review by the District Court and a waiver of the right to appeal. (Dkt. No. 42 at 17). No party filed timely objections to the R & R.

The Court, mindful of the Plaintiff s pro se status, has made a review of the record, the decision of the Administrative Law Judge ("ALJ") and the Magistrate Judge to determine if there is any clear error on the face of the record. Diamond v. Colonial Life & Ace, Ins, Co., 416 F.3d 310 (4th Cir. 2005). That review has produced clear evidence of the ALJ's failure to properly apply the requirements of the Treating Physician Rule, 20 C.F.R. § 404.1527, and the failure of the Appeals Council or any other agency fact finder to review, weigh and reconcile the new and material responses of one of Plaintiff s treating physicians, Dr. James Elmore, to an impairment questionnaire submitted after the ALJ's decision, as mandated by the Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011). As further set forth below, the decision of the Commissioner is reversed and remanded for further agency review consistent with this order.

Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. The Act provides that 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 innumerable times as more than a scintilla, but less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes de novo review of the factual circumstances that substitutes the Court's findings of fact for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971).

Although the federal court's review role is a limited one, "it does not follow, however, 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 action." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Further, the Commissioner's findings of fact are not binding if they were based upon the application of an improper legal standard. Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987).

Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. § 404.1527(b). This includes the duty to "evaluate every medical opinion we receive." Id. § 404.1527(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." Id. § 404.1527(c)(2).

Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh all medical opinions in light of a broad range of factors, including the examining relationship, the treatment relationship, length of treatment, nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. Id. §§ 404.1527(c)(1)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492 (July 2, 1996). Further, since the Commissioner recognizes that the non-examining expert has "no treating or examining relationship" with the claimant, she pledges to consider their supporting explanations for their opinions and "the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and examining sources." § 404.1527(c)(3).

A claimant may offer relevant evidence to support his or her disability claim throughout the administrative process. Even after the Administrative Law Judge ("ALJ") renders a decision, a claimant who has sought review from the Appeals Council may submit new and material evidence to the Appeals Council as part of the process for requesting review of an adverse ALJ decision. 20 C.F.R. §§ 404.968, 404.970(b). The new evidence offered to the Appeals Council is then made part of the record. The Social Security Regulations do not require the Appeals Council expressly to weigh the newly produced evidence and reconcile it with previously produced conflicting evidence before the ALJ. Instead, the regulations require only that the Appeals Council make a decision whether to review the case, and, if it chooses not to grant review, there is no express requirement that the Appeals Council weigh and reconcile the newly produced evidence. Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir. 2011).

As the Fourth Circuit addressed in Meyer, the difficulty arises under this regulatory scheme on review by the courts where the newly produced evidence is made part of the record for purposes of substantial evidence review but the evidence has not been weighed by the fact finder or reconciled with other relevant evidence. Meyer held that as long as the newly presented evidence is uncontroverted in the record or all the evidence is "one-sided, " a reviewing court has no difficulty determining whether there is substantial evidence to support the Commissioner's decision. Id. at 707. However, where the "other record evidence credited by the ALJ conflicts with the new evidence, " there is a need to remand the matter to the fact finder to "reconcile that [new] evidence with the conflicting and supporting evidence in the record." Id. Remand is necessary because "[assessing the probative value of the competing evidence is quintessentially the role of the fact finder." Id.

One issue that commonly arises in these Meyer-related cases is whether medical evidence produced after the ALJ's decision should be considered in reviewing the Commissioner's decision denying disability or whether the claimant should be required to file a new disability claim. The Fourth Circuit recently provided considerable guidance regarding this issue in Bird v. Comm 'r of Soc. Sec, 699 F.3d 337 (4th Cir. 2012). Bird held that the newly produced medical evidence, outside the relevant time period of the claim, should be considered if there is evidence of linkage between the earlier relevant medical evidence and the newly produced medical evidence that may be "reflective of a possible earlier and progressive degeneration." Id. at 341. The newly produced evidence need not expressly state a retrospective diagnosis.

Factual Background

Plaintiff advances claims for disability under SSI and the widower's insurance benefits, asserting an onset date of August 20, 2002.[1] Plaintiffs initially asserted that his primary problems related to bilateral lower extremity pain, coronary artery disease, diabetes and depression. Transcript of Record ("Tr.") 375-80, 408-12. Plaintiffs medical records were reviewed by non-examining and non-treating physicians in early to mid 2011; these physicians recognized a number of Plaintiff s impairments but concluded he retained the residual functional capacity to sit or stand six hours in an eight hour day and to lift up to ten pounds frequently. Tr. 446-53, 569-76, 581. These opinions, for all practical purposes, limited a residual functional capacity to perform light work. Plaintiff offered brief statements by his treating physicians, all Veteran Administration ("VA") providers, prepared in July and August 2011, indicating that he had significant impairments, most notably with peripheral vascular disease in his lower extremities, that would currently ...


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