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Jackson v. Berryhill

United States District Court, D. South Carolina

March 15, 2017

KENNETH JACKSON, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

         Plaintiff filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)[2] on March 31, 2014. Plaintiff alleges disability as of September 15, 2014[3] due to post traumatic stress syndrome (PTSD), anxiety, sinusitis, high blood pressure, high cholesterol, depression, drug addiction, and erectile dysfunction. (R.pp. 51, 59). Plaintiff's applications for SSI and DIB were denied initially and upon reconsideration, following which he requested a hearing before an Administrative Law Judge (ALJ), which was held on December 4, 2015. (R.pp. 35-50, 94-98, 102-106, 109). The ALJ thereafter denied Plaintiff's claim in a decision issued January 5, 2016. (R.pp. 29-30). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7). Plaintiff then filed this action in United States District Court. Plaintiff asserts that the ALJ's decision is not supported by substantial evidence, and that this case should be reversed for an award of benefits, or in the alternative remanded to the Commissioner for further proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Discussion

          A review of the record shows that Plaintiff, who was fifty-two years old on his alleged disability onset date[4], has a greater than high school education and past relevant work experience as a land surveyor and program supervisor. (R.pp. 29, 39-40, 48). In order to be considered “disabled” within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months.

         After a review of the evidence and testimony in this case, the ALJ determined that, although Plaintiff does suffer from the “severe” impairment[5] of PTSD (R.p. 25), he nevertheless retained the residual functional capacity (RFC) for a full range of work at all exertional levels, but with certain nonexertional restrictions. Specifically, the ALJ found that Plaintiff was restricted to simple, repetitive tasks; he can have no contact with the public; he cannot perform work in a team setting; and he cannot work in a fast-paced environment. (R.p. 27). The ALJ further determined that, although the limitations caused by Plaintiff's impairments precluded him from performing his past relevant work, he could perform other representative occupations with these limitations, such as a small parts assembler (DOT # 706.684-022), electronics worker (DOT # 726.687-010), and laundry folder (DOT # 369.367-018), and was therefore not disabled. (R.p. 29-30, 48-49).

         Plaintiff asserts that in reaching this decision the Commissioner erred because he failed to properly evaluate two treating physicians' opinions, and failed to give substantial weight to the VA rating decision that Plaintiff is 100% disabled. Plaintiff further contends that the Appeals Court erred in not remanding or reversing the ALJ's decision based upon a treating physician's statement submitted to the Appeals Council. After careful review and consideration of the evidence and arguments presented, and for the reasons set forth and discussed hereinbelow, the undersigned is constrained to agree with the Plaintiff that the Commissioner has committed reversible error in the evaluation of his applications, thereby requiring a remand for further consideration of Plaintiff's claims.

         I.

         Plaintiff has been diagnosed with both PTSD and Bipolar Disorder. (R.pp. 362, 780). Plaintiff has primarily received treatment for his condition from Dr. Angela Court at the Ralph Johnson VA Medical Center. See generally, (R.pp. 400, 419, 429, 443, 447, 463, 466, 476, 513, 520, 804). However, Plaintiff has also been seen by other physicians, who have confirmed his diagnosis. See (R.pp. 350-351 (Dr. Milton Foust); 387, 403, 415, 458 (Dr. John Medaglia); 696 (Dr. Norman Farley); 815 (Molli Collacott, MSW, LCSW). In his decision, the ALJ does not specifically address Plaintiff's Bipolar Disorder, assigning Plaintiff's PTSD as being his only severe impairment. (R.p. 25).

         In finding that Plaintiff's condition was not disabling, the ALJ accorded significant weight to the opinion of state agency physician Dr. Derek O'Brien, who after review of Plaintiff's medical records on January 12, 2015 opined that Plaintiff was moderately limited in his ability to interact appropriately with the general public, but was not otherwise significantly limited. (R.pp. 28, 76, 87). The ALJ's only comment with respect to Dr. Court's findings was to state that at a mental status examination performed on October 9, 2014, Dr. Court had noted generally unremarkable findings while encouraging Plaintiff to continue his activities and “work as able”. (R.p. 28). A review of the October 9, 2014 examination itself shows that Dr. Court found that Plaintiff had a constricted affect, displayed a “frustrated” mood, was on a mood stabilizer, was advised of the steps to take in the event of an emergency, and was to return in one month “for medication management and supportive treatment”. (R.p. 780). No other discussion or analysis of Dr. Court's longitudinal treatment records is provided, nor does the ALJ ever indicate what particular weight he gives to Dr. Court's opinions and findings, even though she is a treating physician whose opinion would ordinarily be entitled to great weight. Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996)[Noting importance of treating physician opinion]. Indeed, a treating source's opinion on the nature and severity of an impairment is entitled to “controlling weight” where it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Further, the ALJ is required to provide an explanation in the decision for what weight is given a treating source's opinion and, if rejected, why it was rejected, a requirement (as previously noted) that was clearly not fulfilled by the ALJ in this case. See 20 C.F.R. § § 404.1527(c)(2) and 416.927(c)(2).

         This omission is particularly important in this case because as part of his appeal to the Appeals Council, Plaintiff submitted a letter from Dr. Court dated March 23, 2016 wherein Dr. Court noted that she had been treating the Plaintiff for approximately thirteen (13) years, and that he suffers from PTSD, Bipolar Disorder and depression. After outlining Plaintiff's deficiencies, including problems with concentration, easy distractability, and other impairments, Dr. Court stated that “[d]ue to the limitations he suffers as a result of his disorders and symptoms, it is my opinion that he is disabled and can not obtain or maintain a job.” (R.p. 8). Dr. Court further opined that if Plaintiff attempted to obtain a job, “he would be off task more than 20% of the time due to his lack of concentration, that he would need break periods at least every hour, and that he would miss work more than 4 days a month due to symptoms, panic attacks, and/or side effects of medication.” (R.p. 8). Finally, and significantly, Dr. Court also states in the letter submitted to the Appeals Council that the conditions and limitations set forth in her letter were present on or before January 8, 2016, the date of the ALJ's decision. Id.[6] However, notwithstanding Dr. Court's specific statement that the conditions and limitations set forth in her March 23, 2016 letter to the Appeals Council “were present on or before January 8, 2016”, in rejecting this opinion and upholding the ALJ's decision the Appeals Council stated:

The Administrative Law Judge decided your case through January 8, 2016. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before January 8, 2016.

(R.p. 2); see (R.p. 8).

         This finding was clear error under the facts of this case.

         Pursuant to 20 C.F.R. §404.970

(b) If new and material evidence is submitted, the Appeals Council shall consider the additional evidence . . . where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the ...

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