Stevens v. Colvin

Filing 23

REPORT AND RECOMMENDATION re 20 MOTION for Summary Judgment filed by Carolyn W. Colvin. Signed by Magistrate Judge Stephanie A Gallagher on 6/12/14. (c/m 6/12/14 jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SARAH J. STEVENS

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v.
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Civil Case No. WDQ-13-1150
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COMMISSIONER, SOCIAL SECURITY
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014–01, the above-referenced case has been referred to me
for review of the parties’ dispositive motions and to make recommendations pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix).

I considered the letters filed by Ms.

Stevens, who appears pro se, and the Commissioner’s pending motion for summary judgment.1
[ECF Nos. 17, 20, 22]. This Court must uphold the Commissioner’s decision if it is supported
by substantial evidence and if proper legal standards were employed. 42 U.S.C. § 405(g); Craig
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987). I find that no hearing is necessary. Local R. 105.6 (D. Md. 2011). For the reasons set
forth below, I recommend that the Commissioner’s motion be denied, and the case be remanded
for further proceedings in accordance with this report and recommendations.
Ms. Stevens applied for Disability Insurance Benefits and Supplemental Security Income
in October, 2006, alleging a disability onset date of March 2, 2005. (Tr. 109-21). Her claims
were denied initially on April 4, 2007, and on reconsideration on August 16, 2007. (Tr. 81-88,
90-93). An Administrative Law Judge (“ALJ”) held a hearing on March 6, 2009, at which Ms.

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The Court sent Ms. Stevens a Rule 12/56 letter on April 28, 2014, explaining the potential consequences
of failing to file an opposition to the Commissioner’s motion. [ECF No. 21]. Although Ms. Stevens’s
opposition was due on May 19, 2014, she did not mail a response until May 29, 2014, and it was received
by this Court on June 4, 2014. [ECF No. 22]. Despite the somewhat belated filing, because Ms. Stevens
is pro se, I have considered her response and the attached medical evidence in making these
recommendations.

Stevens was represented by counsel. (Tr. 36-76). The ALJ subsequently wrote an opinion on
August 10, 2009, denying benefits to Ms. Stevens. (Tr. 24-35). On January 28, 2010, Ms.
Stevens’s attorney, S. Mark Tilghman, Esq., wrote to the Appeals Council requesting that the
Appeals Council procure Ms. Stevens’s medical record from April 1, 2009, to the present, from
Peninsula Regional Medical Center and the Johns Hopkins Hospital. (Tr. 21). In that letter, Mr.
Tilghman noted that Ms. Stevens had been diagnosed with cancer and had undergone surgery in
the intervening period. Id. Mr. Tilghman reiterated the request that records be ordered in his
brief to the Appeals Council. (Tr. 207-14). The record does not reflect that the Appeals Council
sought to obtain any of those records, and in fact suggests that the request was denied. (Tr. 3).
On July 26, 2010, the Appeals Council denied review of Ms. Stevens’s case. (Tr. 17-20).
The subsequent procedural posture of this case is highly irregular. As described both in
Ms. Stevens’s letter and in a letter written by her former counsel, S. Mark Tilghman, Esq., Mr.
Tilghman’s former administrative assistant apparently engaged in misconduct with respect to
Ms. Stevens’s file. [ECF No. 17, Tr. 3-8]. According to Ms. Stevens and Mr. Tilghman, the
administrative assistant was hiding relevant notices and mail from Mr. Tilghman, and was
misinforming Ms. Stevens regarding the status of her case. Id. As a result of the assistant’s
misconduct, the Commissioner granted Ms. Stevens an extension of time to file a civil action,
and she filed the instant case in this Court on April 19, 2013. [ECF No. 1].2 In the interim, Ms.
Stevens filed a new claim for benefits, in part due to her diagnosis of colon cancer. The
Commissioner approved her for benefits on October 3, 2011, and found that she had become
disabled on June 30, 2010. (Tr. 6). Her appeal in this case, however, relates to the period predating the ALJ’s decision of August 10, 2009.
Ms. Stevens’s filings in this Court consist of a letter to the Court discussing her inability
2

Ms. Stevens has filed a complaint with the Attorney Grievance Commission regarding Mr. Tilghman’s
representation. [ECF No. 17].

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to find counsel to represent her for her appeal, the letter from the Commissioner granting her
additional time to file the civil action, a letter from Mr. Tilghman to Ms. Stevens regarding
preparation of the request for additional time, and a detailed letter Ms. Stevens wrote to
Congressman Andy Harris. [ECF No. 17]. The letter to Congressman Harris contains the most
substantive information regarding Ms. Stevens’s case. According to Ms. Stevens, Mr. Tilghman
and his assistant repeatedly assured Ms. Stevens that she would receive “back pay from her first
case.” Id. She was not informed that no appeal of the initial decision had been filed until long
after the deadline had expired. Id. She relied on the representations that she would be receiving
a lump sum payment in assuring her creditors that they could be paid. Id. Moreover, she
believes that Mr. Tilghman should not have been compensated for his representation of her, and
should pay to retain an attorney to represent her in the instant appeal. Id.
While Ms. Stevens has raised some serious allegations regarding her experience with
employees of Mr. Tilghman’s office, those issues are not properly addressed in this forum. This
Court’s jurisdiction is limited to a review of the ALJ’s 2009 decision to determine whether the
ALJ’s conclusions were supported by substantial evidence. This Court cannot award benefits or
damages to compensate Ms. Stevens for any misrepresentations that may have been made by Mr.
Tilghman or his assistant.
Turning, then, to the 2009 decision, the ALJ found that, during the relevant time frame,
Ms. Stevens suffered from the severe impairments of obesity, degenerative joint disease, and
fibroid tumors. (Tr. 29). Despite these impairments, the ALJ determined that Ms. Stevens
retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
she is limited to no climbing of ladders, ropes, or scaffolds, only occasional
performance of other postural activities, and only frequent rather than constant
handling, fingering, and feeling.
(Tr. 31). After considering testimony from a vocational expert (“VE”), the ALJ determined that
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Ms. Stevens was capable of performing her past relevant work as a telemarketer, and that she
was not therefore disabled. (Tr. 35).
I have carefully reviewed the ALJ’s opinion and the entire record. See Elam v. Barnhart,
386 F. Supp. 2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review
of a pro se action challenging an adverse administrative decision, including: (1) examining
whether the Commissioner’s decision generally comports with regulations, (2) reviewing the
ALJ’s critical findings for compliance with the law, and (3) determining from the evidentiary
record whether substantial evidence supports the ALJ’s findings). For the reasons described
below, while substantial evidence supported the ALJ’s decision at the time it was written, the
“new and material evidence” that Mr. Tilghman sought to present to the Appeals Council, and
that Ms. Stevens has presented, at least in part, to this Court, requires further analysis by the
Commissioner. Accordingly, I recommend remand under sentence six of 42 U.S.C. § 405(g),
which governs remand for consideration of new and material evidence.
The ALJ proceeded in accordance with applicable law at all five steps of the sequential
evaluation. At step one, the ALJ found in Ms. Stevens’s favor that she had not engaged in
substantial gainful activity since the alleged onset date of March 2, 2005. (Tr. 29). At step two,
the ALJ found the severe impairments specified above, providing detailed analysis and citing
record exhibits to support the clinical and diagnostic findings demonstrating severity. (Tr. 2930).
At step three, the ALJ stated that Ms. Stevens’s impairments do not meet the criteria of
any relevant Listings. (Tr. 31). While the ALJ did not identify or discuss any specific Listing,
an ALJ is required to discuss listed impairments and compare them individually to Listing
criteria only when there is “ample evidence in the record to support a determination that the
claimant’s impairment meets or equals one of the listed impairments.” Ketcher v. Apfel, 68 F.
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Supp. 2d 629, 645 (D. Md. 1999). Upon reviewing the entire record, I find no instances of ample
evidence supporting a determination that any Listing would have been met prior to the ALJ’s
opinion in this case.

Accordingly, the step three conclusion was supported by substantial

evidence.
At step four, the ALJ provided a summary of Ms. Stevens’s statements on her initial
disability report, her subsequent disability and function reports, and her hearing testimony. (Tr.
31-32). The ALJ noted that Ms. Stevens became unemployed in March, 2005 because she was
laid off, and that she was able to drive, shop, attend church, write, use a computer, and spend
time with her granddaughter. (Tr. 32). The ALJ further noted that, after the hearing, Ms.
Stevens’s attorney submitted a letter indicating that Ms. Stevens has attended college, part-time,
for years, and hoped to “be able to obtain a degree and be able to find some work which she is
physically able to do.” (Tr. 34, 107-08). In fact, in March, 2007, Ms. Stevens indicated on a
medical form that she was a “full time student/accounting.” (Tr. 322).
With respect to the medical evidence, the ALJ noted that Ms. Stevens had sought limited
medical treatment prior to the date of the ALJ opinion. (Tr. 32). She had not sought treatment
with an orthopedist or specialist for her knee impairment, had not received treatment for
complaints of back pain, and had not been recommended to undergo further treatment for her
gynecologic issues. (Tr. 32). Her treatment notes with her primary care practices, in which she
treated primarily with nurse practitioners, reflect numerous appointments for relatively routine
medical issues. (Tr. 33-34, 338-51, 373-87). Her periodic complaints of knee pain resulted, in
2009, in a referral to an orthopedist after she had demonstrated full range of motion and no
edema. (Tr. 33, 373-74). The ALJ further noted that Ms. Stevens’s treatment for fibroid tumors
had been relatively minimal, and that she was not prescribed any medication at any time other
than pain relievers. (Tr. 33). Although her gynecologist, at one point, recommended referral for
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a hysterectomy, she never scheduled the surgery because she remained asymptomatic. Id.
In addition, the only treating source opinion in the file was completed by a certified
registered nurse practitioner, Joanna Freidberg, who had no corroborating treatment notes to
substantiate her opinion. (Tr. 34, 363-66). Moreover, Ms. Freidberg’s opinion did not suggest a
long-standing treatment relationship, since it surmises, “Medication alone will more than likely
fail.” (Tr. 366). A consultative examiner, Dr. Victor Gong, found limited range of motion in
Ms. Stevens’s knees but normal range of motion on all other joints, and no limitations on lifting,
standing, or walking.

(Tr. 34, 250-54).

The state agency physicians who reviewed Ms.

Stevens’s medical file either found her capable of certain light work, or found her to have no
severe impairments. (Tr. 34-35, 255-60, 362). The ALJ rejected the opinion suggesting that Ms.
Stevens had no severe impairments in favor of the opinion suggesting that she could perform a
limited range of light work. (Tr. 35).
The function of this Court is not to review Ms. Stevens’s claims de novo or to reweigh
the evidence of record. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) (citing 42 U.S.C.
§ 405(g) and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather, this Court is to
determine whether, upon review of the whole record, the Commissioner’s decision is supported
by substantial evidence and a proper application of the law. Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990); Coffman, 829 F.2d at 517; see 42 U.S.C. § 405(g). The ALJ cited to
abundant evidence suggesting that Ms. Stevens was capable of substantial gainful employment
prior to the date of the ALJ’s opinion.
The ALJ also appropriately completed step five of the sequential evaluation. The ALJ
took testimony from the VE regarding whether a person with Ms. Stevens’s RFC assessment
could perform her past relevant work as a telemarketer. (Tr. 72). The VE testified that she
would be capable of the work. Id. The ALJ then asked whether there were other light and
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sedentary jobs that could be performed with a person fitting the hypothetical criteria, and the VE
testified in the affirmative.

(Tr. 72-73).

The ALJ’s step five determination, therefore, was

also supported by substantial evidence.
The problem lies in the evidence that has now been submitted regarding Ms. Stevens’s
medical condition between the date of her ALJ hearing on March 6, 2009, and the ALJ’s opinion
on August 10, 2009. Evidence submitted for the first time to this Court reflects that Ms. Stevens
was hospitalized just three days after her ALJ hearing for more than a week, and was diagnosed
during that hospital stay with pulmonary embolism, anemia, and morbid obesity. [ECF No. 22].
She was readmitted to the hospital on July 31, 2009, and remained hospitalized until August 5,
2009, with diagnoses including severe iron deficiency anemia, blood loss anemia, history of
uterine fibroids, chronic anticoagulation secondary to pulmonary embolus, trace heme positive
stools, arthritis, and morbid obesity. Id. By August 14, 2009, just four days after the ALJ’s
opinion, Ms. Stevens had been diagnosed with colon cancer, and she was hospitalized for a
seven-week period. Id.
Section 405(g) generally precludes a court from considering evidence outside the record
before the Commissioner during the administrative proceedings, and directs instead that remand
is appropriate where evidence is new, material, and there is good cause for failure to submit the
evidence in a prior proceeding. See Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997).
First, there is good cause for Ms. Stevens’s failure to submit the evidence in the prior
proceeding. During the time between the ALJ hearing and the ALJ’s opinion, Ms. Stevens was
undergoing significant medical treatment, including several multi-day hospitalizations. While
Ms. Stevens’s case was pending before the Appeals Council, her attorney informed the Appeals
Council of her changed medical condition and asked that the Appeals Council procure the
hospital records, because Ms. Stevens lacked the financial means to do so. The Appeals Council
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declined to obtain the records. I therefore cannot fault Ms. Stevens for submitting the evidence,
for the first time, to this Court.
The new evidence is also material. New evidence is only material where there is “a
reasonable possibility that the new evidence would have changed the outcome.” Meyer v. Astrue,
662 F.3d 700, 705 (4th Cir. 2011) (citing Wilkins v. Sec’y, Dep’t of Health & Human Servs., 953
F.2d 93, 96 (4th Cir. 1991)). Given the severity of Ms. Stevens’s medical condition and
treatment in mid-2009, there is a reasonable possibility that the ALJ would have viewed her
functional capacity differently had those records been considered. While it is unclear whether
the new records would have any bearing on the ALJ’s assessment of Ms. Stevens’s physical
condition prior to her ALJ hearing, the fact that the new conditions arose before the ALJ’s
opinion issued renders the information material to the ALJ’s overall assessment.
It is true that, according to Mr. Tilghman, Ms. Stevens was subsequently found to have
been disabled as of June 30, 2010, and not an earlier date. (Tr. 6). However, the record does not
indicate the date of her subsequent disability application, or whether the records from mid-2009
that are now presented to this Court were ever presented to the agency in that subsequent
application. In any event, upon a reapplication for benefits, the agency is precluded from setting
an onset date prior to a previous denial of benefits. I therefore recommend that this case be
remanded to the Commissioner under sentence six of 42 U.S.C. § 405(g) for consideration of the
new and material evidence relating to Ms. Stevens’s medical condition between the date of her
hearing and the ALJ’s opinion. In so recommending, I express no opinion as to whether the
ALJ’s ultimate conclusion that Ms. Stevens was not disabled prior to August 10, 2009 is correct
or incorrect.

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CONCLUSION
For the reasons set forth above, I respectfully recommend that the Court DENY
Defendant’s Motion for Summary Judgment, [ECF No. 20]; and REMAND the case to the
Commissioner for further proceedings in accordance with this Report and Recommendations.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b)(2) and Local Rule 301.5.b.

Dated: June 12, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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