Akbar v. Colvin

Filing 26

ORDER DENYING 20 Plaintiff's Motion for Judgment on the Pleadings, and GRANTING 23 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is affirmed, and this clerk is directed to close this matter. Signed by US District Judge Terrence W. Boyle on 3/11/2014. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-486-BO
CURTIS TARIQ AKBAR,

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Plaintiff,

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CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

ORDER

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This matter is before the Court on the parties' cross motions for judgment on the
pleadings [DE 20 & 23]. For the reasons detailed below, plaintiffs motion is DENIED and
defendant's motion is GRANTED. The decision of the Commissioner is AFFIRMED.

BACKGROUND
On November 30, 2010, plaintiff applied for disability insurance benefits under Title II of
the Social Security Act. Plaintiff initially alleged a disability onset date of April 1, 2007 and
revised that date to December 15, 2007. After his application was denied initially and upon
reconsideration, a hearing was held before an Administrative Law Judge ("ALJ") on May 18,
2012. On October 18, 2012, the ALJ issued a decision denying the claim. The Appeals Council
denied Mr. Gray's request for review thereby rendering the ALJ's decision the final decision of
the Commissioner on May 8, 2013. Pro se plaintiff now seeks judicial review of the ALJ' s
decision pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY

Mr. Akbar claims he is disabled due to degenerative disc disease, diabetes mellitus,
depression, and vertigo. [Tr. 17-18].
DISCUSSION

Pursuant to the Social Security Act, 42 U.S.C. § 405(g), this Court's review of the
Commissioner's decision is limited to determining whether the Commissioner's decision, as a
whole, is supported by substantial evidence and whether the Commissioner employed the correct
legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (citing Richardson v.
Pearles, 402 U.S. 389, 390 (1971)). "'[S]upported by substantial evidence' means 'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.'" !d. (quoting
Pearles, 402 U.S. at 401). Regulations establish a five-step sequential evaluation process to be
followed when determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520 and 416.920.
"The claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five." Rogers v. Barnhart, 216 Fed. App'x 345, 348 (4th Cit. 2007) (citing
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).
Mr. Akbar attached several documents to his motion as a basis for his request to reverse
the decision of the Commissioner. His documents are as follows: (1) a Nash County Department
of Social Services Decision; (2) a WakeMed Outpatient Rehab Services Evaluation; (3) a Title
XVI (SSI) Award; 94) a Letter from the Divine Intervention Counseling Center; and (5) a Letter
from his Fiance, Alice Kearney. However, a review of the evidence in the record shows that the
decision of the Commissioner is supported by substantial evidence and correct legal standards
were used. [DE 20-1-20-7]. 1

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Two of the documents are not pertinent. DE 20-4 relates to a change in the date plaintiff received his SSI benefits
and DE 20-5 relates to a change in the amount of plaintiffs SSI benefits due to an increase in his income.
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1.

Nash County Department of Social Services Decision.

This document does not show the ALJ's decision to have been reached in error, but is
rather based upon a misapplication of the Social Security Regulations. The ALJ considered all of
the record evidence in making his decision [Tr. 18-23], whereas the state only considered and
discussed a small portion of the record evidence. [Tr. 160]. Substantial evidence in the record
supports the ALJ's determination and where the ALJ differs from the state's determination, the
ALJ provided an adequate explanation of why the record supports her decision. [Compare Tr.
160 with Tr. 20-23].
2.

WakeMed Outpatient Rehab Services Evaluation.

The second attachment is a functional capacity evaluation done by a physical therapist.
Physical therapists are not accepted medical sources under the regulations. See 20 C.F.R. §
404.1513. While such evidence is considered, it is given less weight than an acceptable medical
source, and it must be consistent with the medical evidence overall. The ALJ cited to the
physical therapist's opinion based on this report [Tr. 295] and noted that he was a non-physician.
The ALJ then stated that the opinion was not an acceptable medical source and that it overly
limited Mr. Akbar's abilities compared to the physical examinations throughout the record. [Tr.
22-23]. The ALJ properly noted that the medical evidence did not support the opinion. [Tr. 2223,247-50, 301]. Therefore, the ALJ's decision was properly supported by substantial evidence.
3.

Title XVI (SSI) Award.

The document dealt with a supplemental security benefits (SSI) award based on a
subsequent application filed after the ALJ's determination. The determination awarding benefits
does not give a rationale for the finding. It is not known if Mr. Akbar had new or worsening
impairments. The Agency did not choose to re-open the prior period or accept new and material

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evidence into this record that may have applied back into the period under review. Subsequent
documentation does not, without evidence that would relate back, bear any weight on the current
application and this determination. Res Judicata applies to the determination under review here.
See Albright v. Comm 'r ofSoc. Sec. Admin., 174 F.3d 473 (4th Cir. 1999); Lively v. Sec. of HHS,

820 F.2d 1391 (4th Cir. 1987); Melvin v. Astrue, 602 F. Supp. 2d 694 (E.D.N.C. 2009).
4.

Letter From Divine Intervention Counseling Center.

This letter was dated September 12, 2013, eleven months after the ALJ's determination
was made and over four months after the Appeals Council denied review. The letter indicates
that Mr. Akbar was diagnosed with a Major Depressive Episode on September 4, 2012, one
month prior to the ALJ' s determination. It states that Mr. Akbar received services and made
progress. The episode the letter refers to is in the record. [Tr. 383-87]. This record does not
indicate a disabling event because it was the first presentation. The relevant information is how
the plaintiff progressed within twelve months of treatment. None of these treatment notes have
been submitted to the Court for review. Further, the letter indicates that Mr. Akbar's condition
has improved and does not mention any other episodes occurring. The letter has no bearing on
the ALJ' s decision as it was based on substantial evidence in the record.
5.

Alice Kearney's Letter.

The letter from Mr. Akbar's fiance is dated nearly a year after the ALJ's determination.
The statements within it are not inconsistent with the ALJ's determination. It offers no new
information and has no bearing on the ALJ' s determination.

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The decision of the Commissioner is supported by substantial evidence. Plaintiff has pointed to
no evidence which supports a finding of any error on the part of the ALJ.

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CONCLUSION

For the reasons outlined above, defendant's motion for judgment on the pleadings is
GRANTED and plaintiffs motion is DENIED. The decision of the Commissioner is
AFFIRMED. The clerk is directed to close the file.

SO ORDERED.
This, the

-IJ_ day of March, 2014.

RRENCE W. BOYLE
UNITED STATES DISTRICT J

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