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Tucker v. Berryhill

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

September 26, 2017

Shelnia Losoyna Tucker, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, [1]Defendant.

          ORDER

          J. Michelle Childs, United States District Judge.

         This matter is before the court on Plaintiff Shelnia Losoyna Tucker's (“Plaintiff”) Objections to the Magistrate Judge's Report and Recommendation (“Objections”) (ECF No. 28), filed on May 30, 2017. Plaintiff filed a Complaint seeking judicial review of the final decision of the Acting Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) The Magistrate Judge determined that the Administrative Law Judge (“ALJ”) performed adequate review of the whole record evidence finding that (1) Plaintiff failed to establish a good cause for failing to submit additional evidence to the Appeals Council, (2) Plaintiff's contention that the ALJ failed to properly evaluate Dr. Kimberly K. Kruse's opinion evidence is without merit, and (3) the ALJ applied the proper legal standards in determining Plaintiff's residual functional capacity. (ECF No. 26.) Accordingly, the Magistrate Judge recommended that the court affirm the Acting Commissioner's final decision. (Id.)

         For the reasons set forth below, the court ACCEPTS the Magistrate Judge's Report and Recommendation, and AFFIRMS the Acting Commissioner's final decision.

         I. BACKGROUND

         On February 14, 2012, Plaintiff filed an application for Social Security benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, alleging that she became disabled on July 18, 2010. (ECF No. 10-2 at 23-34.) At the administrative hearing before the ALJ, Plaintiff amended her alleged onset date from July 18, 2010 to December 31, 2012. (Id.) After conducting a hearing regarding Plaintiff‘s application for Social Security benefits, the ALJ determined that Plaintiff had not been under a disability as defined by the Social Security Act from December 31, 2012, the amended alleged onset date, through September 30, 2016, the date last insured. (Id.) The ALJ determined that Plaintiff had the following severe impairments: degenerative joint disease of the bilateral knees and right ankle, carpal tunnel syndrome, rotator cuff syndrome, obstructive sleep apnea, and obesity. (Id.) However, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). (Id.) Furthermore, the ALJ determined that Plaintiff has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with additional limits including lifting or carrying up to 20 pounds occasionally and 10 pounds frequently, standing or walking for approximately 6 hours of an 8-hour work day, and sitting for approximately 6 hours of an 8-hour workday with normal breaks. (Id.)

         On October 15, 2014, Plaintiff requested a review of the ALJ's decision by the Social Security Administration's Appeals Council (“Appeals Council”). (ECF No. 10-2 at 19.) On November 24, 2014, the Appeals Council granted Plaintiff's request for extension of time before it issued a decision on Plaintiff's application for Social Security benefits. (Id.) Additionally, the Appeals Council issued a notice to Plaintiff stating that any more evidence must be sent “within 25 days of the date of this letter” and it would “not allow more time to send information except for very good reasons.” (ECF No. 10-2 at 11.) This notice also stated that if the Appeals Council did not hear from Plaintiff within twenty-five (25) days it would assume Plaintiff did not want to send any more information and would proceed with its action based on the record before the ALJ. (Id.) However, Plaintiff did not submit any additional evidence by the deadline of December 19, 2014. While reviewing the ALJ's decision, the Appeals Council found that the ALJ's “assessed residual functional capacity is inconsistent with the hypothetical questions posed to the vocational expert at the hearing with respect to [Plaintiff's] environmental and manipulative limitations.” (ECF No. 10-4 at 69.)

         On November 25, 2015, the Appeals Council sent Plaintiff a “Notice of Appeals Council Action” stating it had granted Plaintiff's request for review of the ALJ's decision and determined that the ALJ's decision was not supported by substantial evidence, but planned to make a decision finding that Plaintiff is not disabled. (ECF No. 10-4 at 68-71.) The Appeals Council stated that it “plans to adopt Findings 1 through 4 and 6 of the Administrative Law Judge decision, but plans to find that you have the residual functional capacity consistent with the limitations included in the second hypothetical posed to the vocational expert.” (Id.) The Appeals Council notified Plaintiff to provide any further evidence within thirty (30) days of the date of the letter or could request for an appearance before the Appeals Council within thirty (30) days. (Id.) Plaintiff submitted a handwritten letter dated December 5, 2015 for the Appeals Council's consideration. (ECF No. 10-6 at 62.) On January 11, 2016, the Appeals Council issued a decision finding that Plaintiff was not disabled “at any time through the date of the Administrative Law Judge's decision, September 11, 2014.” (ECF No. 10-2 at 5-9.) The Appeals Council adopted the ALJ's findings under steps 1, 2, 3, and 4 of the sequential evaluation, but did not accept the ALJ's residual functional capacity assessment and limitations. The Appeals Council stated that it had reviewed and included Plaintiff's correspondence dated December 5, 2015 as a supplemental exhibit. (Id.)

         On May 15, 2017, the Magistrate Judge issued a Report recommending that this court affirm the Acting Commissioner's decision to deny Plaintiff's application for Social Security benefits. (ECF No. 26 at 25.) On May 30, 2017, Plaintiff filed an objection to the Magistrate Judge's Report. (ECF No. 28.) In the Objections, Plaintiff states that (1) new medical evidence faxed to the Appeals Council on September 2, 2015 was not incorporated in its decision, (2) the Magistrate Judge failed to consider Dr. Kruse's opinion that Plaintiff was capable of performing “simple, repetitive tasks” and did not provide details of how the vocational expert's testimony supports the ALJ's determination that Plaintiff can perform semi-skilled work, and (3) the Magistrate Judge failed to address the ALJ's findings regarding her obesity and how it limits the ability to work. (Id.)

         On June 8, 2017, the Acting Commissioner filed a response explaining that the court should overrule Plaintiff's Objections to the Magistrate Judge's Report and Recommendation. (ECF No. 30 at 1.) The Acting Commissioner explained that Plaintiff's Objections generally reiterate the arguments stated in her initial brief and that the ALJ adequately considered the vocational expert's testimony as to Plaintiff's past relevant work as a childcare worker, which did not require the performance of work-related activities restricted by her residual functional capacity. (Id. at 2.)

         II. LEGAL STANDARDS

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976.) The court reviews de novo only those portions of a magistrate judge's report and recommendation to which specific objections are filed, and reviews those portions which are not objected to for clear error, including those portions to which only “general and conclusory” objections have been made. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter with instructions. See 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. 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 innumerable times 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. See Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). The court must uphold the Commissioner's decision if it is supported by substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From this it does not follow, however, that the findings of the administrative agency are to be mechanically accepted.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency.” Id. “[T]he 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.

         III. ANALYSIS

         A. The Magistrate Judge's Review

         In the Report, the Magistrate Judge considered Plaintiff's contentions that her impairments are more limiting than the ALJ's assessment. Plaintiff argues that her application for Social Security benefits should be remanded for the Acting Commissioner's consideration of new opinion evidence which was submitted to the Appeals Council on September 2, 2015; that the Magistrate Judge did not address the ALJ's failure to properly assess opinion evidence; and that the ALJ did not explain his findings regarding Plaintiff's residual functional capacity as required by SSR 96-8p. (ECF No. 15.)

         First, Plaintiff contends that the Appeals Council failed to add to the Supplemental List of Exhibits a correspondence of September 2, 2015, consisting of a Functional Capacity Questionnaire completed by Stewart Darby, PA, and a letter from Lisa A. Williams, M. Ed, LPC, regarding Plaintiff's mental health treatment. (ECF No. 15 at 13-14.) Plaintiff argues that she relies on this new evidence faxed to the Appeals Council, which allegedly explains the ALJ's concerns regarding the lack of treatment records for her fibromyalgia diagnosis or documentation of her specific mental health treatment for depression. (Id. at 14.) Plaintiff “asserts that the evidentiary gap noted by the ALJ has been filled by the evidence that was submitted, but not included in the record, on September 2, 2015.” (Id. at 15.) However, the Acting Commissioner argues that because Plaintiff failed to submit the evidence in a timely manner to the Appeals Council, the Appeals Council “was not required to discuss the evidence or include it in the record” pursuant to 20 C.F.R. § 404.968(a)-(b). (ECF No. 17 at 18-19.) The Acting Commissioner contends that even if this evidence was timely submitted to the Appeals Council, Plaintiff would be unable to meet her burden of showing that it was both “new” and “material” because the submitted documents post-date the relevant period and were nonacceptable medical sources. (Id. at 19-20.)

         The Magistrate Judge explained that this additional evidence has not been made a part of the Appeals Council's administrative record. However, this evidence could only be made part of the record if Plaintiff meets her burden pursuant to sentence six of 42 U.S.C. § 405(g). (ECF No. 26 at 15.) To meet this burden, Plaintiff must show “good cause” for the evidence not having been made part of the record and demonstrate that the evidence is both “new” and “material.” See Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). Upon evaluating the record evidence, the Magistrate Judge determined that Plaintiff, through her representative, requested Appeals Council's review of the ALJ's decision on October 14, 2014, and requested “an Appeals Council BAR CODE that can be used to submit additional evidence.” (ECF No. 26 at 17-18.) Plaintiff later requested an extension of time to submit documents during this period. (Id.) On November 24, 2014, the Appeals Council granted Plaintiff an additional twenty-five (25) days to submit more information. (Id.) However, over nine (9) months later, on September 2, 2015, Plaintiff faxed additional evidence to the Appeals Council that included a functional capacity questionnaire dated May 26, 2015, and an opinion letter dated June 23, 2015 without providing any reason for the delay. (Id.)

         After reviewing the parties' briefs, the Magistrate Judge ordered Plaintiff to file a response to Defendant's brief and to discuss the issue of timeliness of the new evidence submitted to the Appeals Council. (ECF No. 26 at 18-19.) In her supplemental briefing, Plaintiff contends that “the Appeals Council granting an additional 30 days to submit new evidence in November, 2015 prevents any argument that evidence submitted to it prior to that date was submitted untimely.” (Id.) Plaintiff further submits that the Acting Commissioner's suggestion regarding untimeliness is post hoc reasoning because the Appeals Council did not indicate the evidence was untimely, it was not clear the Appeals Council considered the evidence, and there is no indication that Plaintiff should have “re-submitted” the same evidence after the November 2015 notice. (Id.)

         The Magistrate Judge determined that Plaintiff was on constructive notice that the Appeals Council had not considered the September 2015 evidence nor made it a part of the record. On November 25, 2015, the Appeals Council issued a notice stating that in granting Plaintiff's request for review, it “considered the written record that was before the Administrative Law Judge and the testimony at the hearing.” (ECF No. 26 at 18-19.) The Appeals Council informed Plaintiff to “send us more evidence or a statement about the facts and the law in your case within 30 days of the date of this letter.” The Magistrate Judge explained that if Plaintiff had any question about the submitted evidence, she could have made an inquiry to the Appeals Council. (Id.) Therefore, pursuant to sentence six of U.S.C. § 405(g), the Magistrate Judge concluded that Plaintiff failed to establish good cause for failing to timely submit the additional evidence to the Appeals Council. (Id.)

         Next, the Magistrate Judge concluded that the ALJ determined that the record evidence supported Plaintiff's residual functional capacity assessment and that she was capable of performing her prior related work as a childcare worker. (ECF No. 26 at 22-25.) The Magistrate Judge found that the ALJ explained his consideration of Dr. Kruse's one-time examination of Plaintiff on August 30, 2012, which discusses her allegations of learning problems and depression. During Plaintiff's examination, Dr. Kruse had to end the mental status examination explaining that Plaintiff's “performance is invalid due to Ganser responding and a strong indication of negative impression management was noted.” (ECF No. 10-7 at 34-35.) Hence, Dr. Kruse did not diagnose Plaintiff, but deferred to her medical record. (Id.) The ALJ explained that he considered Plaintiff's symptoms, her medical records, and the opinion evidence. (ECF No. 10-2 at 26-32.) Furthermore, the ALJ stated that Plaintiff's “sporadic treatment of acute complaints is inconsistent with a finding of persistently disabling conditions” because her “treatment records document minimal findings.” (Id.) Most importantly, no treating source provided any opinion of Plaintiff's physical or mental functional capabilities. The ALJ also stated that he evaluated opinion evidence under the regulatory factors and gave “little weight” to the September 2012 opinion of Dr. Thomas Motycka because Plaintiff's “vocational prospects are outside the area of his expertise.” (Id.) Regarding Dr. Kruse's evaluation of Plaintiff, the ALJ explained that “Dr. Kruse did not specifically opine as to the claimant's ability to perform work activity.” (Id.)

         The Magistrate Judge determined that because Dr. Kruse's relationship with Plaintiff was solely for a disability report and not based on a treating relationship, she is considered a non-treating source. 20 C.F.R. § 404.1527(a)(2).[2] (ECF No. 26 at 19-22.) Despite this deficiency in Dr. Kruse's opinion, the ALJ stated that he “considered the findings contained within Dr. Kruse's report, which are consistent with the evidence of record as a whole.” (Id.) The ALJ concluded that the record evidence supported his residual functional capacity assessment and that Plaintiff is capable of performing her prior relevant work as a childcare worker. (Id). The Magistrate Judge notes Plaintiff stated that Dr. Kruse opined that she believed Plaintiff was capable of performing simple, repetitive tasks, but the ALJ did not consider that statement to be an opinion on Plaintiff's ability to perform work-related activity. Even if Dr. Kruse's opinion that Plaintiff was “capable of performing simple repetitive tasks” was a limitation on Plaintiff's ability to work, the ALJ explained that Plaintiff's medical records and testimony were inconsistent with this limitation. The ALJ also discussed Plaintiff's ability to be attentive and concentrate and found that Plaintiff experienced “no more than mild limitations in activities of daily living, social functioning and concentration, persistence or pace.” (Id.) In addition, the ALJ explained that Plaintiff's prior related work was a semi-skilled job and that the vocational expert testified she “retains the functional abilities necessary to perform her past relevant work as a childcare worker.” (Id.)

         Furthermore, the Magistrate Judge considered Plaintiff's final allegation that the ALJ did not explain his residual functional capacity findings as required by SSR 96-8p. (ECF No. 15 at 23.) The Magistrate Judge explained that Plaintiff's medical history, testimony regarding her symptoms, and her reported functional abilities were considered in the ALJ's residual functional capacity findings. (ECF No. 26 at 23-26.) The ALJ evaluated Plaintiff's obesity in conjunction with Plaintiff's complaints and found that it resulted in functional limitations consistent with his residual functional capacity assessment. (Id.) Finally, the ALJ indicated that Plaintiff's 5'11” height and weight of 220 pounds resulted in a corresponding body mass index of 30.7 which is in the Level I BMI range of 30.0 to 34.9. (Id.) The ALJ stated that he accounted for Plaintiff's obesity in determining her residual functional capacity. (Id.)

         B. Plaintiff's Response to the Magistrate ...


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