JAYNES v. ASTRUE
Filing
23
MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/08/2014, that the Commissioner's decisionfinding no disability be affirmed, that Plaintiff's Motion forSummary Judgment (Docket Entry 19 ) be denied, that Defendant'sMotion for Judgment on the Pleadings (Docket Entry 21 ) be granted,and that this action be dismissed with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MELISSA M. JAYNES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,1
Defendant.
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1:12CV168
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Melissa M. Jaynes, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying Plaintiff’s claim(s) for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).
1.)
(Docket Entry
The Court has before it the certified administrative record
(cited herein as “Tr. __”), as well as the parties’ cross-motions
for judgment (Docket Entries 19, 21). For the reasons that follow,
the Court should enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI in December 2008, alleging
a disability onset date of September 19, 2008.
(Tr. 137-43.) Upon
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her substitution as Defendant, pursuant to
Federal Rule of Civil Procedure 25(d).
denial
of
the
application(s)
initially
(Tr.
45,
46)
and
on
reconsideration (Tr. 47, 48), she requested a hearing de novo
before an Administrative Law Judge (“ALJ”) (Tr. 70-71).
Plaintiff
and her attorney attended the hearing on June 2, 2010.
(Tr. 22-
40.)
By decision dated June 16, 2010, the ALJ ruled Plaintiff not
disabled
under
the
Act.
(Tr.
6-21.)
The
Appeals
Council
subsequently denied Plaintiff’s request for review, making the
ALJ’s ruling the Commissioner’s final decision for purposes of
judicial review.
(Tr. 1-3.)
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2013.
2.
[Plaintiff] has not engaged in substantial gainful
activity since . . . the alleged onset date . . . .
3.
[Plaintiff] has the following severe impairments:
obesity, a history of attention deficit disorder, the
affective disorder of bipolar syndrome I, a borderline
personality disorder, and poly-substance use disorder
. . . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 . . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c) except that she is limited to
simple, routine, repetitive tasks in a low-stress
environment with low levels of social interaction.
(Tr. 11-14.) In light of the foregoing findings regarding residual
functional capacity (“RFC”), the ALJ ruled that Plaintiff could not
2
perform her past relevant work.
(Tr. 16.)
However, the ALJ
concluded that, “[c]onsidering [Plaintiff’s] age, education, work
experience, and [RFC], there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform.”
(Id.)
Accordingly, the ALJ found that Plaintiff did not suffer
from a “disability,” as defined in the Act, at any time from the
alleged onset date through the date of decision.
(Tr. 17.)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [judicial] review of [such] a decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
“The courts are not to try the case de novo.”
495 F.2d 396, 397 (4th Cir. 1974).
Oppenheim v. Finch,
Instead, “a reviewing court
must uphold the factual findings of the ALJ [underlying the denial
of benefits] if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Hines,
453 F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
3
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means the “‘inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
4
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).2
“To regularize the adjudicative process,
the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.”
Hall, 658 F.2d at 264.
“These regulations
establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the [RFC] to (4) perform [the
claimant’s]
past
work
or
(5)
any
other
work.”
Albright
v.
Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir.
1999).3
A finding adverse to the claimant at any of several points
2
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. [SSI] . . . provides benefits to indigent disabled persons. The
statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citation omitted).
5
along the SEP forecloses a benefits award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].”
Id. at 179.
Step four
then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant does
not qualify as disabled.
Id. at 179-80.4
However, if the claimant
establishes an inability to return to prior work, the analysis
proceeds to the fifth step, whereupon the ALJ must decide “whether
the claimant is able to perform other work considering both [the
claimant’s RFC] and [the claimant’s] vocational capabilities (age,
4
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
6
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner
cannot carry the “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.
Hines, 453 F.3d at 567.5
Assignment(s) of Error
Plaintiff “accepts the medical history as set fort [sic] in
the ALJ decision of June 16, 2010.”
(Docket Entry 20 at 2.)
However, Plaintiff nonetheless contends that the Court should
overturn the ALJ’s ultimate determination of no disability for two
reasons:
1) at step five, “[t]he ALJ failed to obtain the
testimony of a Vocational Expert (VE) to prove the existence of
work at the level of [RFC] as found by the ALJ” (id. at 4); and 2)
“[o]n
September
12,
2013,
[a
different
ALJ]
found
based
on
[Plaintiff’s] application filed October 13, 2010 that [Plaintiff]
has been disabled under the [] Act since June 17, 2010, the day
after the unfavorable decision . . . dated June 16, 2010 . . .
justifying remand of the [instant] claim to reassess the onset date
of disability” (id. at 5-6).
Defendant argues otherwise and seeks
5
A claimant thus can establish disability via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
7
affirmance of the finding of no disability.
10.)6
(Docket Entry 22 at 5-
Defendant’s position should prevail.
Failure to Obtain VE Testimony
The ALJ ruled that, despite Plaintiff’s severe impairments (as
found at step two), she retained the RFC “to perform medium work
. . . except that she is limited to simple, routine, repetitive
tasks in
a
interaction.”
[Plaintiff’s
low-stress
environment
(Tr. 14.)7
RFC],
age,
with
low levels
of
social
At step five, the ALJ “consider[ed]
education,
and
work
experience
in
conjunction with the Medical-Vocational Guidelines, 20 CFR Part
404, Subpart P, Appendix 2.”
(Tr. 16.)
Pursuant to that review,
the ALJ observed that, “[i]f [Plaintiff] had the [RFC] to perform
the full range of medium work, considering [her] age, education,
and work experience, a finding of ‘not disabled’ would be directed
by Medical-Vocational Rule 203.29.”
(Tr. 17.)
The ALJ then
recognized that Plaintiff’s RFC did not allow for the full range of
medium exertional-level work, but instead included certain nonexertional restrictions (i.e., simple, routine, repetitive tasks
(“SRRTs”) in a low-stress environment with low levels of social
interaction); “[h]owever, [the ALJ determined that] the additional
6
The original pagination in Defendant’s brief begins by identifying the
second page as “1” and then counts upward with each successive page. (See Docket
Entry 22.) Pin cites to Defendant’s brief refer to the page numbers in the
CM/ECF footer appended to Defendant’s brief at the time of electronic filing,
rather than the original pagination in Defendant’s brief.
7
Plaintiff’s brief does not contend that the record lacks substantial
evidence supporting the ALJ’s RFC finding. (See Docket Entry 20 at 4-8.)
8
limitations have little or no effect on the occupational base of
unskilled medium work.”
(Id.; see also id. (“[U]nder SSR [Social
Security Ruling] 85-15, none of the preceding limitations, singly
or in combination, cause a significant erosion of the unskilled
occupational base of jobs available to [Plaintiff].”).) Given that
determination (and without testimony from a VE), the ALJ concluded
that “[a] finding of ‘not disabled’ [wa]s therefore appropriate
under the framework of [Medical-Vocational Rule 203.29].”
(Id.)
Where, as in this case, “the claimant reaches step five, the
burden shifts to the [Commissioner] to produce evidence that other
jobs exist in the national economy that the claimant can perform
considering his [or her] age, education, and work experience.”
Hunter, 993 F.2d at 35.
“The Commissioner may meet this burden by
relying on the Medical–Vocational Guidelines (Grids) or by calling
a [VE] to testify.”
Cir.
2002)
(citing
Aistrop v. Barnhart, 36 F. App’x 145, 146 (4th
20
C.F.R.
§
404.1566)).8
According
to
Plaintiff, “when non-exertional as well as exertional limitations
exist, the testimony of a [VE] is normally required.”
(Docket
Entry 20 at 5 (citing Hooper v. Heckler, 752 F.2d 83 (4th Cir.
8
“The Grids categorize jobs by their physical-exertion requirements,
namely, sedentary, light, medium, heavy, and very heavy. There are numbered
tables for the sedentary, light, and medium level (tables 1, 2, and 3,
respectively), and a specific rule for the heavy and very heavy levels. Based
on the claimant’s RFC, the ALJ must first determine which table to apply, i.e.,
if the claimant’s RFC limits him to a sedentary exertional level, then Table No.
1 is the appropriate table. Next, based on the claimant’s age, education, and
previous work experience, the [table or] rule directs a finding of ‘disabled’ or
‘not disabled.’” Black v. Astrue, No. 3:09CV599, 2010 WL 2306130, at *4 (E.D.
Va. Apr. 26, 2010) (unpublished) (internal citations and footnotes omitted),
recommendation adopted, 2010 WL 2306136 (E.D. Va. June 3, 2010) (unpublished).
9
1985)).)
Defendant agrees with Plaintiff that, “when, as here,
‘non-exertional
as
well
as
exertional
limitations
exist,
the
testimony of a [VE] is normally required’” (Docket Entry 22 at 6
(quoting Docket Entry 20 at 5) (emphasis added by Defendant));
however, Defendant emphasizes the word “normally” within that legal
postulate and focuses on the logical correlative, i.e., “‘not every
non-exertional limitation . . . preclude[s] reliance on the Grids’”
(id. (quoting Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989))).
As noted above, in this case, the ALJ only opted to rely on
the
Grids
after
specifically
concluding
that
Plaintiff’s
restriction, within the medium exertional-level, to SRRTs in a lowstress environment with low levels of social interaction “ha[d]
little or no effect on the occupational base of unskilled medium
work.”
(Tr. 17; see also id. (“[U]nder SSR 85-15, none of the
preceding
limitations,
singly
or
in
combination,
cause
a
significant erosion of the unskilled occupational base of jobs
available to [Plaintiff].”).)
Defendant expressly relied on that
determination by the ALJ in moving for judgment (see Docket Entry
22 at 7) and noted that Plaintiff’s brief seeking judgment “does
not challenge the ALJ’s reasoning” (id. (citing Docket Entry 20 at
4-5)).
Plaintiff has made no subsequent filing(s) offering any
rationale for the Court to reject the ALJ’s ruling that, even with
the non-exertional limitations of Plaintiff’s RFC, a broad spectrum
of unskilled medium work remained available to Plaintiff, such that
reliance on the Grids (without resort to VE testimony, pursuant to
10
the
exception
explicitly
recognized
in
Walker
and
implicitly
recognized in Hooper) remained appropriate in this case.
(See
Docket Entries dated Feb. 7, 2014, to present.)
Under these circumstances, the Court should affirm the ALJ’s
step five ruling, given (1) the failure of Plaintiff to develop
appropriate argument on point, see, e.g., Belk, Inc. v. Meyer
Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (“This issue is
waived because [the plaintiff] fails to develop this argument to
any extent in its brief.”); United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) (“[A] litigant has an obligation to spell out
its arguments squarely and distinctly, or else forever hold its
peace.” (internal quotation marks omitted)); Nickelson v. Astrue,
No. 1:07CV783, 2009 WL 2243626, at *2 n.1 (M.D.N.C. July 27, 2009)
(unpublished)
(“[A]s
[the
plaintiff]
failed
to
develop
these
arguments in his [b]rief, the court will not address them.”), as
well as (2) the abundant authority supporting the ALJ’s pertinent
conclusion(s), see, e.g., Cooper v. Secretary of Health & Human
Servs., No. 86-3514, 843 F.2d 1390 (table), 1988 WL 27503, at *1,
5 (6th Cir. Mar. 31, 1988) (unpublished) (holding that “ALJ was
justified in relying upon the grids,” where ALJ “observed that
claimant retained the [RFC] to perform simple and repetitive
sedentary
work of
a
low-stress
type”);
Smith v.
Colvin,
No.
3:13CV570MOC, 2014 WL 2159122, at *4 (W.D.N.C. May 23, 2014)
(unpublished) (“The ALJ concluded [the] plaintiff could do medium
11
unskilled work with limited public contact. . . .
The ALJ reasoned
[that] unskilled work usually involves working with things and not
the public, a finding which finds support in the regulations and
case law within the Fourth Circuit. . . .
The ALJ was not
obligated to bring in a VE and properly relied on the Grids in
finding
[the]
plaintiff
not
disabled.”
(internal
citation
omitted)); Livingston v. Colvin, No. 3:13CV233MOC, 2014 WL 496484,
at *6 (W.D.N.C. Feb. 6, 2014) (unpublished) (“Plaintiff argues that
the ALJ finding that her RFC for light work was limited to SRRTs
prevented the ALJ from relying on the Grids in determining whether
work existed in significant numbers in the national economy that
she could perform. . . .
A limitation to SRRTs does not prevent an
ALJ
the
from
relying
on
Grids.”);
Scott
v.
Colvin,
No.
1:12CV170RJC, 2013 WL 3927607, at *6-7 (W.D.N.C. July 29, 2013)
(unpublished)
(rejecting
argument
“that
the
ALJ
should
have
consulted a [VE] to support [the] step-five determination . . .
[where] [t]he ALJ determined that [the] [p]laintiff does suffer
from mental health impairments . . . accounted for in the ALJ’s RFC
determination by restricting [the] [p]laintiff to the performance
of non-complex, repetitive and routine tasks in a low stress, nonproduction
environment
that
does
not
involve
significant
interpersonal interaction . . . [because] limitation to simple,
unskilled, entry level work that allows for less stress work
without public contact or significant interaction with others would
12
not significantly erode the occupational base represented by the
Grids” (internal quotation marks omitted)); Lewandowski v. Astrue,
No. 1:07CV1777DLB, 2008 WL 4736788, at *8 (E.D. Cal. Oct. 28, 2008)
(unpublished) (“[T]he ALJ determined that [the] [p]laintiff could
perform a significant number of jobs in the national economy.
In
this regard, he determined that her non-exertional limitation to
simple, routine tasks had little or no effect on the occupational
base of unskilled light work.
The ALJ was entitled to make this
determination.” (internal citation omitted)).
Subsequent Favorable Disability Ruling
The parties have agreed that, on October 13, 2010 (i.e.,
approximately four months after the ALJ’s decision at issue in this
case), Plaintiff again applied for Social Security disability
benefits, alleging an onset date of June 17, 2010 (i.e., the day
after the ALJ’s decision at issue in this case).
(Docket Entry 20
at 5; Docket Entry 20-1 at 4; Docket Entry 22 at 7; Docket Entry
22-1 at 4.)
They further have agreed that, on September 12, 2013,
the ALJ assigned to hear that second application (hereinafter, the
“second ALJ”)
ruled
Plaintiff
disabled
as
of
June
17,
2010.
(Docket Entry 20 at 5; Docket Entry 20-1 at 1, 5, 7-9; Docket Entry
22 at 8 & n.4; Docket Entry 22-1 at 1, 5, 7-9.)9
9
Finally, the
Both parties filed with their briefs a copy of the second ALJ’s letter
to Plaintiff enclosing the favorable decision. (Docket Entries 20-1, 22-1.)
Because that letter and decision have independent internal pagination, pin cites
to the attachments encompassing them refer to the page numbers in the CM/ECF
footer appended to said attachments upon their electronic filing with the Court.
13
parties have agreed that, “‘[w]here a second social security
application finds a disability commencing at or near the time a
decision on a previous application found no such disability, the
subsequent finding of a disability may constitute new and material
evidence.’” (Docket Entry 20 at 5 (quoting Hayes v. Astrue, 488 F.
Supp. 2d 560, 565 (W.D. Va. 2007)); Docket Entry 22 at 8-9 (same,
but with emphasis on “may”).)
Defendant, however, emphasizes the
word “may” in that legal postulate and quotes a recent Fourth
Circuit decision clarifying that “‘the evidence supporting the
subsequent
decision,’”
rather
than
the
“‘subsequent
decision
itself,’” actually represents the possible “‘new and material
evidence under §405(g).’”
(Docket Entry 22 at 9 (quoting Baker v.
Commissioner of Soc. Sec., 520 F. App’x 228, 229 n.1 (4th Cir.
2013), but without the internal quotation marks reflecting that
Baker, in turn, quoted Allen v. Commissioner of Soc. Sec., 561 F.3d
646, 653 (6th Cir. 2009)).)10
Additionally, as Defendant’s brief notes (see id.), the Fourth
Circuit further has indicated that a plaintiff bears the “burden of
showing
that
evidence
relied
upon
in
reaching
the
favorable
decision pertains to the period under consideration in [the pending
10
The above-quoted references to “new and material evidence” under Section
405(g) in Baker and to “new and material evidence” in Hayes concern the provision
of the Act that authorizes the Court to “order additional evidence to be taken
before the Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding[.]” 42 U.S.C.
§ 405(g) (emphasis added).
14
case].”
Baker, 520 F. App’x at 229 n.1.
To meet that burden here,
Plaintiff’s brief offers only the following conclusory statement
(unsupported by any citation or example):
“A close inspection of
the last decision clearly shows the same evidence before the first
ALJ was examined and utilized by the second ALJ to find [Plaintiff]
disabled
one
decision.”
day
aft
[sic]
the
(Docket Entry 20 at 5.)
prior
ALJ
issued
his
denial
Assuming that the second ALJ’s
reappraisal of the same evidence considered at the time of the
benefits denial now under review could provide grounds for remand,11
Plaintiff
cannot
assertions.
obtain
such
relief
by
simply
making
bald
See, e.g., Albertson v. Colvin, No. CV12-2508-JPR,
2013 WL 2251639, at *18 (C.D. Cal. May 22, 2013) (unpublished)
(“[The] [p]laintiff’s conclusory arguments without citation to the
record are insufficient to meet his burden.”); Johnson v. Astrue,
No. 3:09CV2458, 2011 WL 902966, at *3 (D.S.C. Mar. 15, 2011)
(unpublished)
(adopting
finding
by
magistrate
judge
that
the
plaintiff “did not satisfy the requirement that a claimant seeking
11
Such an assumption runs against the weight of persuasive authority.
See, e.g., Allen, 561 F.3d at 653 (“[R]emand under sentence six [of Section
405(g)] is not meant to address the correctness of the administrative
determination made on the evidence already before the initial ALJ. In addition,
it is overly broad to read the words new evidence in sentence six to include a
subsequent decision based on the same evidence.” (internal citation, footnote,
and quotation marks omitted)); Atkinson v. Astrue, No. 5:10CV298FL, 2011 WL
3664346, at *17 (E.D.N.C. July 20, 2011) (unpublished) (agreeing with and quoting
from Sayre v. Astrue, No. 3:09-01061, 2010 WL 4919492, at *4 (S.D.W. Va. Nov. 29,
2010) (unpublished), as follows: “the Sixth Circuit’s analysis [in Allen] ‘makes
sense because using a subsequent decision as independent evidence is tantamount
to a collateral attack on the initial decision . . . [and] would run counter to
the need for finality and consistency between SSA [Social Security
Administration] disability determinations”), recommendation adopted, 2011 WL
3664858 (E.D.N.C. Aug. 18, 2011) (unpublished).
15
to introduce new evidence make at least a general showing of the
nature of the new evidence”).
Moreover, as again pointed out by Defendant (see Docket Entry
22 at 9-10), a close inspection of the decision dated September 12,
2013, actually reflects that the second ALJ deemed Plaintiff
disabled based on events post-dating the decision issued on June
16, 2010.
For example, after observing that the ALJ who rendered
the decision at issue in this case “found that [Plaintiff] was
capable of medium work” (Docket Entry 20-1 at 8; Docket Entry 22-1
at 8), the second ALJ stated:
“While I do not doubt that the
previous assessment was reasonable given [Plaintiff’s] limitations
at that time, I find that her increased level of impairment in the
following years have further limited her ability to perform workactivity.”
(Docket Entry 20-1 at 8-9 (emphasis added); Docket
Entry 22-1 at 8-9 (emphasis added).)
Similarly, in discussing the
medical evidence supporting the conclusion that “[t]he severity of
[Plaintiff’s] impairments meets the criteria of section 12.04 of 20
CFR Part 404, Subpart P, Appendix 1” (Docket Entry 20-1 at 7;
Docket
Entry
22-1
at
7),
the
second
ALJ
focused
largely
developments after June 16, 2010:
Medical records show ongoing outpatient treatment since
November 2008, shortly after she stopped working. She
has been treated at various mental health centers and had
trials of various medications . . . . She has a history
of multiple emergency hospitalizations for suicidal
ideation and suicide attempts. In July 2010, she was
admitted to an inpatient program for one-month at Daymark
Recovery Services. She presented with schizoaffective
16
on
disorder, marijuana dependence and cocaine dependence in
remission. She reported homicidal ideation towards her
sister along with auditory and visual hallucinations.
She reported that medication helped “tame” the voices.
She indicated a history of command hallucinations telling
her to hurt herself and others non-lethally. She stated
that she had acted on these voices in the past.
In April 2011, at her Consultative Examination for
Disability Determination Services, [Plaintiff] reported
a long history of depression beginning around age 13.
She stated that she was chronically suicidal and had
overdosed on several occasions. She reported a history
of auditory hallucinations and visions of ghosts. She
also indicated symptoms of mania during which she would
shoplift and go without sleep, followed by extended
periods of depression. She reported chronic nightmares
associated with childhood abuse. Dr. Sanders noted that
her prognosis was guarded and that she needed to restart
psychotropic medications.
He also indicated that if awarded benefits, she would be
unable to handle benefits without assistance.
According to treatment notes dated November 2012,
[Plaintiff] presented with a depressive episode having
approximately 6 weeks duration. She stated that most
mornings she wished she did not wake up. She endorsed
symptoms of long term problems with self-esteem,
overeating and insomnia.
She acknowledged that she
worried excessively and found her worries difficult to
control.
She
reported
continued
symptoms
of
hallucinations. Records show that she continues to see
therapists at Grant Blackford Mental Health Center.
(Docket Entry 20-1 at 7-8 (internal citations omitted) (emphasis
added); Docket Entry 22-1 at 7-8 (internal citations omitted)
(emphasis added).)12
12
The fact that the second ALJ expressly “d[id] not find a basis for
reopening [Plaintiff’s] prior [DIB] application or [SSI] application” (Docket
Entry 20-1 at 4 (citing 20 C.F.R. §§ 404.988 & 416.1488); Docket Entry 22-1 at
4 (citing 20 C.F.R. §§ 404.988 & 416.1488)), further bolsters the notion that the
disability finding on September 12, 2013, resulted from Plaintiff’s perceived
deterioration after the decision finding no disability on June 16, 2010.
17
In sum, Plaintiff has failed to show that new, material
evidence warrants a remand; in particular, she has not carried her
“burden of showing that evidence relied upon in reaching the
favorable decision pertains to the period under consideration in
[this case],” Baker, 520 F. App’x at 229 n.1.
CONCLUSION
Plaintiff has established no grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 19) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 21) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 8, 2014
18
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