United States District Court, D. South Carolina, Greenville Division
Timothy M. Cain United States District Judge.
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.
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
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.
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. 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.
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. 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.
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).
“[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.
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).
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.
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.
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 ...