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Pennock v. Colvin

United States District Court, D. South Carolina

June 23, 2016

Gayle R. Pennock, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          RICHARD MARK GERGEL, District Judge.

         Plaintiff 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, 22).

         After a 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.

         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). 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. § 404.1527(c)(1).

         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, 662 F.3d at 705-06.

         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 "[a]ssessing 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 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.

         Factual Background

         Plaintiff, 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. ...

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