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Coleman v. Berryhill

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

February 22, 2019

Anthony Coleman, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Timothy M. Cain United States District Judge.

         The plaintiff, Anthony Coleman (“Coleman”), brought this action pursuant to the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), denying his claim for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). (ECF No. 1). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before this court is the magistrate judge's Report and Recommendation (“Report”), recommending that the court reverse the decision of the Commissioner and remand the case for further review. (ECF No. 26).[1] In the Report, the magistrate judge sets forth the relevant facts and legal standards, which are incorporated herein by reference. The Commissioner filed objections to the Report (ECF No. 27). Coleman did not reply to those objections, and the time to do so has now run. The matter is now ripe for review.

         BACKGROUND

         Coleman applied for DIB on February 10, 2014, and for SSI on February 20, 2014. (ECF No. 12-2 at 20). Both applications alleged a disability onset date of March 15, 2013. Id. These claims were denied both initially and on reconsideration by the Social Security Administration (“SSA”). Id. Coleman then requested a hearing before an Administrative Law Judge (“ALJ”), and on November 8, 2016, the ALJ conducted a hearing on Coleman's claims for DIB and SSI. Id. at 34-49. Coleman was represented by counsel at the hearing. Id. at 34. On December 14, 2016, the ALJ issued her decision finding that Coleman was not disabled. Id. at 17-33.

         In her decision, the ALJ found Coleman met the insured status requirements under the Act through June 30, 2013, and that Coleman had not engaged in substantial gainful activity since March 15, 2013, the alleged onset date of disability. Id. at 22. The ALJ further determined that Coleman suffered from the following severe impairments: lumbar degenerative disc disease; cervical degenerative disc disease; obesity; and degenerative joint disease of the bilateral hips. Id. Additionally, the ALJ determined that Coleman's high blood pressure, peripheral artery disease, alcohol abuse, and reported depression were non-severe impairments. Id. at 22-23. She also found that Coleman's cellulitis “does not meet the durational requirement to be considered a severe impairment” and that Coleman did not have a medically determinable impairment of carpal tunnel syndrome. Id. at 23. In reviewing all of Coleman's impairments, the ALJ concluded that he did “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.” Id. at 22. Additionally, the ALJ calculated Coleman's residual functional capacity (“RFC”) and determined that he could perform light work with various limitations.[2] Because of these limitations, the ALJ determined that Coleman is unable to perform his past relevant work of machine fixer, material handler, or weaver. Id. at 26. However, the ALJ determined that based on Coleman's age, education, work experience, and RFC calculation, there were “jobs that existed in significant numbers in the national economy that [he] can perform.” Id. Accordingly, the ALJ concluded that Coleman was not disabled as defined in the Act. Id. at 27.

         Coleman subsequently appealed to the Appeals Council and submitted additional evidence in the form of a medical opinion from Nurse Practitioner A. Mearns (“NP Mearns”). Id. at 2 - 16. The Appeals Council determined that NP Mearns's opinion “d[id] not show a reasonable probability that it would change the outcome of the decision, ” and it did not consider or exhibit the evidence.[3] Id. at 3. The Appeals Council denied Coleman's request for review. Id. at 2-6. Therefore, the ALJ's decision became the final decision of the Commissioner. This action followed.

         STANDARD OF REVIEW

         The federal judiciary has a limited role in the administrative scheme established by the SSA. 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 . . . 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. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

         However, “[f]rom this it does not follow . . . 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 agency.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Rather, “the 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.

         DISCUSSION

         In his Report, the magistrate judge recommends that the decision of the Commissioner be reversed and remanded for further consideration. (ECF No. 26). The Commissioner makes the following objections to the Report: (1) that the magistrate judge erred in not addressing Coleman's failure to prove NP Mearns's statement was “new”; (2) that the magistrate judge erred in finding that NP Mearns's questionnaire presented a reasonable probability of a different outcome; and (3) that the magistrate judge erred in recommending a remand pursuant to sentence four for consideration of evidence that the Appeals Council did not incorporate into the record. (ECF No. 27).

         In determining whether to grant review of an ALJ decision, the Appeals Council is “required to consider new and material evidence relating to the period on or before the date of the ALJ decision.” Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95 (4th Cir. 1991). Within this context, “[e]vidence is new if it is not duplicative or cumulative and is material if there is a reasonable probability that the new evidence would have changed the outcome.” Meyer v. Astrue, 662 F.2d 700, 705 (4th Cir. 2011). In this case, the Appeals Council determined that the medical opinion of NP Mearns, which Coleman had submitted as additional evidence following the ALJ's decision, did “not show a reasonable probability that it would change the outcome of the decision.” (ECF No. 12-2 at 3). Therefore, as a threshold matter, the Appeals Council concluded that the opinion was not material, and, accordingly, the Appeals Council did not consider the opinion in determining whether to grant review of the ALJ's decision. Id. The opinion was not made an exhibit to the record. Id.

         As the Commissioner has stated in her objections to the Report (ECF No. 27 at 3), whether the additional evidence was material is an issue of law. Ledbetter v. Astrue, 8:10-cv-00195-JDA, 2011 WL 1335840, at *13, n.7 (D.S.C. Apr. 7, 2011) (“‘Whether the evidence is new, material and related to the relevant period is a question of law reviewed de novo.'” (quoting Box v. Shalala, 52 F.3d 168, 171 - 72 (8th Cir. 1995))). The magistrate judge found that the Appeals Council erred in finding that the opinion was not material (ECF No. 26 at 17), and the Commissioner objected to this finding (ECF No. 27 at 8-10). As the basis for this objection, the Commissioner contends that NP Mearns's opinion is a “conclusory opinion[], ” that is not supported by the record and that the opinion fills no “evidentiary gap” in the record. Id.

         The Commissioner also contends that there is no “evidentiary gap” in the record and that the “ALJ did not mention or otherwise emphasize the lack of an opinion from a treating source.” (ECF No. 27 at 10). However, at the time that the ALJ issued her decision, the ALJ only had one medical opinion before her, which came from Dr. Holt, one of Coleman's examining physicians. (ECF No. 12-2 at 25). In giving little weight to Dr. Holt's opinion, the ALJ stated that he did “not give an opinion regarding actual functional limitations” and that “other providers have not observed some of Dr. Holt's observations, such as ‘body wide tremor.'” Id. As the magistrate judge indicated, NP Mearns's opinion seems consistent with the observations in the discounted opinion of Dr. Holt and also describes functional limitations. Specifically, Dr. Holt indicated that Coleman's pain woke him up at night and averaged an 8/10 on the pain scale; that he could not hold very much weight; that he could only stand or sit for a few minutes; that he used a cane some of the time and had an antalgic gait; that he had trouble rising from his chair and had to hold onto furniture while standing; and that he had to change between a seated and a standing position every five minutes. (ECF No. 12-12 at 25-27). Similarly, in her opinion, NP Mearns determined that ...


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