United States District Court, D. South Carolina
Richard Mark Gergel United States District Judge.
has 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
accordance 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
January 29, 2018, recommending that the Commissioner's
decision be affirmed. (Dkt. No. 21). Plaintiff filed
objections to the R & R, and the Commissioner filed a
response. (Dkt. No. 23, 27). As explained below, the Court
reverses the decision of the Commissioner and remands the
case to the agency for further action consistent with this
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 (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 all 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). Under what is
commonly referred to as the Treating Physician Rule, the
Commissioner is required to give special consideration 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 impairments) 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 those 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, all medical opinions must be weighed
under the standards of the Treating Physician Rule, including
non-treating and non-examining physicians. §
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).
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."
the final agency decision in a Social Security disability
claim rests with the Commissioner, it is well settled that a
disability decision by another governmental agency
"cannot be ignored and must be considered." SSR
06-03p, 2006 WL 2329939 at *6. The Commissioner recognizes
that another governmental agency's disability decision
and the evidence used to make that decision "may provide
insight into the individual's mental and physical
impairments and show the [claimant's] degree of
disability .. ." under that agency's rules and
regulations. Id. at 7. The Fourth Circuit has held
that a Veterans Administration ("VA") decision of
disability is entitled to "substantial weight, "
which reflects "the fact that both the VA and Social
Security programs serve the same governmental purpose of
providing benefits to persons unable to work because of a
serious disability." Bird v. Commissioner of Social
Security, 699 F.3d 337, 343, 345 (4th Cir.
is a Gulf War veteran who asserts her claim for DIB on the
basis of various mental and physical impairments. After
conducting an administrative hearing on this matter, the
Administrative Law Judge found that Plaintiff suffered from
multiple severe impairments, including degenerative disc
disease, degenerative joint diseases of both knees, irritable
bowel syndrome, affective disorder, anxiety disorder, and
bipolar disorder. Tr. 33. Despite these severe impairments,
the ALJ determined that Plaintiff was not disabled because
she retained the residual functional capacity
("RFC") for less than the full scope of sedentary
work. Tr. 35. This RFC finding of less than the full scope of
sedentary work reflects significant impairments in the
claimant's capacity to function in the workplace and is
the lowest RFC rating possible for an applicant who is not
determined to be disabled under the Social Security Act.
Consequently, any failure to consider material evidence could
easily be the difference between a grant or denial of
Plaintiffs disability claim.
the issuance of the ALJ's decision, Plaintiffs counsel
submitted to the Appeals Council a September 11, 2015
decision of the Veterans Administration finding Plaintiff was
entitled to "individual unemployability" under the
VA disability program, effective from June 6, 2011. Tr.
282-85. The VA decision was based on the finding that
"the claimant is unable to secure or follow a
substantially gainful occupation as a result of
service-connected disabilities." Tr. 284. In making this
disability decision, the VA referenced three reports of
examinations of Plaintiff dated July 20, 2011, July 1, 2015,
and August 10, 2015. Tr. 284. None of the records from these
three examinations were included in the administrative record
in this case, but the summaries contained in the VA decision
reflect findings of significant mental and physical
impairments during Plaintiffs insured period. Id.
denying the Plaintiffs request for review, the Appeals
Council confirmed it had received the recently submitted VA
decision and that "the additional evidence does not
provide a basis for changing the Administrative Law
Judge's decision." Tr. 2. However, the Appeals
Council does not specifically address the findings or
conclusions of the VA or the references to three separate
evaluations supporting the VA decision that are not presently
in the administrative record in this matter. No fact finder
has weighed this ...