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Everman v. Commissioner of Social Security Administration

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

March 25, 2019

Terri Timmons Everman, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

         Before the court for review is the Magistrate Judge's Report and Recommendation (“Report”) filed on January 16, 2019 (ECF No. 21). The Report addresses Plaintiff Terri Timmons Everman's claim for disability insurance benefits (“DIB”) and recommends that the court affirm the decision of the Commissioner of Social Security Administration (“the Commissioner”). (ECF No. 21 at 1.) For the reasons stated herein, the court ACCEPTS the Report, incorporating it herein, and AFFIRMS the decision of the Commissioner.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a full recitation. (ECF No. 21 at 1-6.) As background, Plaintiff filed an application for DIB under the Social Security Act in August 2009, which was denied initially and upon reconsideration. (Id. at 1-2.) After an administrative hearing on August 25, 2011, an Administrative Law Judge (“ALJ”) issued a decision on October 28, 2011, finding Plaintiff was not disabled under the Social Security Act. (Id. at 2.) Plaintiff requested review of the decision by the Appeals Council (“the Council”), which vacated the hearing decision and remanded the case to the ALJ. (ECF No. 6-3 at 26.) The Council found the hearing decision “d[id] not contain an evaluation of the medical source opinion from [Dr.] Ricardo Fermo” and “d[id] not adequately assess whether [Plaintiff] requires an assistive device to ambulate, despite numerous records, which have indicated [Plaintiff] present[ed] to appointments with an assistive device.” (Id. at 26- 27.) On remand, the Council directed the ALJ to (1) “[f]urther evaluate [Plaintiff]'s mental impairments in accordance with . . . 20 [§] CFR 404.1520a [and] provid[e] specific findings and appropriate rationale for each of the functional areas described in 20 [§] CFR 404.1520a(c)”; (2) “[g]ive further consideration to [Plaintiff]'s maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations” and “evaluate Dr. Fermo's opinion . . . and explain the weight given to such opinion evidence”; (3) “[g]ive further consideration to whether [Plaintiff] was capable of performing any of her past relevant work”; and (4) “[i]f warranted, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitation on [Plaintiff]'s occupational base . . . . The hypothetical questions should reflect the specific capacity limitations established by the record as a whole.” (Id. at 27.)

         On remand, the ALJ held an administrative hearing on February 11, 2014. (ECF No. 6-2 at 20.) On March 13, 2014, the ALJ issued a decision, again finding Plaintiff was not disabled under the Social Security Act through her date last insured. (Id. at 21.) The ALJ found Plaintiff had the residual functional capacity (“RFC”)

to perform sedentary work . . . with some additional limitations. Specifically, [Plaintiff] can lift and carry 10 pounds occasionally and lesser amounts frequently. She is limited to work which is capable of being performed while seated in a wheelchair, with no standing or walking, for the entire work day. She can perform no climbing, crawling, or balancing. She is restricted from exposure to any kind of industrial hazard. [Plaintiff] may perform no more than occasional crouching and stooping. She is limited to work in a low-stress work setting where there is no more than occasional decision-making or changes in setting. She may have no interaction with the general public and no more than occasional interaction with co-workers and supervisors.

(Id. at 26.)

         Plaintiff requested review of the ALJ's second decision by the Council, which was denied on August 12, 2015. (Id. at 2.) Plaintiff then filed a civil action in this court-Everman v. Comm'r of Soc. Sec., Civil Action No. 2:15-cv-04072-JMC-challenging the ALJ's March 2014 decision. (ECF No. 21 at 2.) In response, the Commissioner filed a voluntary motion to remand, which the court granted. (ECF No. 8-4 at 13-16.) Pursuant to the court's remand order, the Council vacated the March 2014 decision of the Commissioner and remanded the case to the ALJ to resolve three issues. (Id. at 4.) First, the Council found “[t]he hearing decision indicates [Plaintiff]'s severe bilateral knee osteoarthritis and severe degenerative disc disease did not meet the requirements of listings 1.02 and 1.04 . . . but the decision does not provide an explanation with appropriate rationale supporting this finding.” (Id.) Thus, the Council determined “[f]urther evaluation at Step 3 of the sequential evaluation process is warranted to determine whether [Plaintiff]'s impairments meet or medically equal Listings 1.02 or 1.04.” (Id.) Second, the Council found “[t]he hearing decision does not address [Plaintiff]'s capacity for work in light of her prospects for absenteeism” and determined “further evaluation of [Plaintiff]'s absenteeism[, ] as noted in the opinions of Dr. Fermo[, ] is necessary, with an explanation of the weight accorded [to Dr. Fermo's opinions].” (Id. at 4-5.) Lastly, the Council observed that “[t]he vocational expert acknowledged that the limitation to remain seated during the workday does affect the job base, but did not know the extent of the impact.” (Id. at 5.) Based on this testimony by the vocational expert, the Council found “the Step 5 finding[1] [wa]s not supported by substantial evidence” and “[f]urther development [wa]s required.” (Id.)

         On July 11, 2017, the ALJ held a third administrative hearing. (ECF No. 8-3 at 5.) The ALJ again determined that Plaintiff “did not have an impairment or combination of impairments that met or medically equaled 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. at 9.) Additionally, the ALJ found that through the date last insured, Plaintiff had the RFC

to perform sedentary work[2] . . . with some non-exertional limitations. Specifically, [Plaintiff] was able to lift and carry 10 pounds occasionally and lesser amounts frequently. She was able to sit for 6 hours in an 8-hour day, and stand and walk occasionally, but she required a sit/stand option at will to be exercised for up to 30 minutes each working hour. She could perform no climbing, crawling or balancing. She could have no exposure to industrial hazards. [Plaintiff] could perform no more than occasional crouching and stooping. She was limited to work in a low-stress work setting with no more than occasional decision-making or changes in setting. She could have no interaction with the general public and no more than occasional interaction with co-workers and supervisors.

(Id. at 12.) After considering Plaintiff's RFC, age, education, and work experience, the ALJ determined that through the date last insured, “there were jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed.” (Id. at 21.) On this basis, the ALJ denied DIB to Plaintiff because she was not disabled for purposes of the Social Security Act “at any time from January 2, 2009, the alleged onset date, through December 31, 2009, the date last insured.” (Id. at 22.) Plaintiff did not request review of the ALJ's decision by the Council, making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 416.1484(d) (“If no exceptions are filed and the Appeals Council does not assume jurisdiction of your case, the decision of the [ALJ] becomes the final decision of the Commissioner after remand.”).

         Plaintiff filed the instant action on December 12, 2017, seeking judicial review of the Commissioner's final decision. (ECF No. 1.) Plaintiff asserted two errors by the ALJ. First, Plaintiff argues “[t]he ALJ reversibly erred by failing to comply with the remand orders issued in this case.” (ECF No. 17 at 1, 14.) Specifically, Plaintiff contends the ALJ (1) did not address her inability to ambulate effectively and the ALJ's resulting RFC is not supported by substantial evidence; and (2) “contradicted the . . . Council's acknowledgment of frequent, unpredictable medical appointments[, ] which were minimized[, ] and disregarded much of what would have resulted in absenteeism.” (Id. at 15.) As to Plaintiff's inability to ambulate effectively, Plaintiff challenges the ALJ's modification of the RFC from limiting Plaintiff to “work performed while seated in a wheelchair . . . [to] sedentary work with occasional standing and walking, a sit/stand option only to be ‘exercised for up to 30 minutes each working hour'; and occasional crouching and stooping.” (Id. at 15-16 (quoting ECF No. 8-3 at 12).) Plaintiff argues

the evidence does not sufficiently support the new RFC finding [and] the ALJ's decision cannot properly be sustained. Had the ALJ reaffirmed the previous finding with regard to wheelchair usage and then proceeded to properly evaluate its effects on [Plaintiff]'s ability to sustain work, a finding of disability would have been the result. When the ALJ acknowledged [Plaintiff]'s limitations involving use of a wheelchair, the ALJ erred by finding that her impairments did not meet or equal any of the listed impairments and assuming that she was able to ambulate effectively.

(Id. at 17-18.) As to Plaintiff's unpredictable medical appointments and absenteeism, Plaintiff first challenges the ALJ's finding that Plaintiff's “treatment records document few significant abnormal mental status findings.” (Id. at 19 (quoting ECF No. 8-3 at 11).) But Plaintiff states that “records from Dr. Roberts, a psychiatrist who treated [Plaintiff] [during] the relevant period . . . document both extensive treatment for her mental disorders and abnormal findings including: (1) isolated interactions; (2) labile mood; (3) poor energy; (4) fair judgment; (5) hopelessness related to pain; and (6) tearfulness/depression.” (Id.) Plaintiff also asserts that “[m]ental illness is often episodic by its very nature . . . and it is simply unreasonable to presume that treatment sessions are unnecessary except during especially symptomatic periods.” (Id. at 20.) Furthermore, Plaintiff contends “the ALJ did not consider the importance of regular therapy in order to prevent more frequent and extreme manifestations of mental illness.” (Id.) Plaintiff also argues the ALJ “discounted the time taken by [medical] appointments.” (Id.)

         Second, Plaintiff argues “[t]he ALJ's reasons for rejecting the opinions of Dr. Fermo[, ] [Plaintiff]'s treating psychiatrist, are not supported by substantial evidence.” (Id. at 21.) Plaintiff asserts the ALJ improperly rejected Dr. Fermo's opinion for being “retrospective in nature” because “[t]he fact that a treating physician begins treating a claimant after the date last insured does not entitle an ALJ to reject his or her opinion.” (Id. at 26 (citing Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987)).) Plaintiff also notes that “Dr. Fermo began treating [Plaintiff] just a few months after the date last insured.” (Id.) Next, in response to the ALJ's finding that although Dr. Fermo collaborated with Dr. Roberts, Dr. Fermo “did not cite any specific information provided to him by Dr. Roberts during such collaboration, ” Plaintiff asserts Dr. Fermo was not required to make any such citation. (Id. (quoting ECF No. 8-3 at 20).) Plaintiff also argues that “the ALJ's decision failed to reflect adequate consideration of other regulatory factors, such as Dr. Fermo's status as a specialist and access to the evidence ...


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