United States District Court, D. South Carolina
Gayle R. Pennock, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
RICHARD MARK GERGEL, District Judge.
brought this action 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 her claim for
Disability Insurance Benefits ("DIB"). 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 April 13, 2016,
recommending that the Commissioner's decision be
affirmed. (Dkt. No. 19). Plaintiff timely filed objections to
the R & R, and the Commissioner filed a reply. (Dkt. No. 21,
careful review of the full record in this matter, the
decision of the ALJ, the decision of the Appeals Council
denying review, the R & R and controlling legal standards,
the Court finds that the failure of the Appeals Council or
any other fact finder to weigh the new and material evidence
from Plaintiffs treating and examining physicians and
"to reconcile that new and material evidence with
conflicting and supporting evidence in the record"
requires "remand... for further fact finding."
Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011).
Moreover, the Appeals Council finding that the new and
material evidence was "about a later time" is
clearly contrary to the explicit statements of the physicians
who prepared the materials and violative of the Fourth
Circuit standards set forth in Bird v.
Comm'r of Soc. Sec., 699 F.3d 337, 341 (4th Cir.
2012). Transcript of Record ("Tr.") 2, 286, 288.
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).
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).
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).
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).
Further, the Commissioner is obligated to "give more
weight to a source who has examined the claimant than to the
opinion of a source who has not." Id. §
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).
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, 662 F.3d at 705-06.
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 "[a]ssessing
the probative value of the competing evidence is
quintessentially the role of the fact finder."
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 provided considerable guidance regarding
this issue in Bird, 699 F.3d 337. 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.
a former custodial employee at Clemson University, had a long
history of severe chronic back pain that reportedly arose
from two work-related injuries in 2003 and 2006. Tr. 365-66,
403. A 2006 MRI of the lumbar spine documented the presence
of significant spinal abnormalities, including (1)
"moderate severity disc degeneration at L 4-5 to the
left;" (2) "disc bulge and broad central protrusion
with annular tear" at L 4-5; (3) "moderate severity
L4-5 facet arthropathy" at L4-5; and (5) "disc
protrusion at L5-S1 with annular tear" on the right
side. Tr. 400. ...