GRUBB v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 07/06/2015. It is RECOMMENDED that Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion to Reverse the Decision 7 be DENIED. Defendant's Motion for Judgment on the Pleadings 10 be GRANTED, and this action be dismissed with prejudice. ( Objections to R&R due by 7/23/2015)(Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHARLIE F. GRUBB, III, in his
capacity as Executor of the
Estate of Danielle J. Grubb,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:13CV289
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Danielle J. Grubb,1 brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Acting Commissioner of Social Security, denying
Plaintiff’s claims for a period of disability and Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act (the “Act”), and for Supplemental Security Income (“SSI”) under
Title XVI of the Act.
(See Docket Entry 1.)
The Court has before
it the certified administrative record (cited herein as “Tr. __”)
1
On March 18, 2014, Plaintiff’s counsel filed a Motion to Substitute Party
that requested the Court substitute Charlie F. Grubb, executor of Danielle
Grubb’s estate, as Plaintiff.
(Docket Entry 12.)
According to Plaintiff’s
counsel, Danielle Grubb died on December 20, 2013, and Charlie Grubb acts as the
executor of the estate. (Id.; see also Docket Entry 12-1; Docket Entry 12-2.)
The Court granted the Motion. (See Text Order dated April 20, 2014.) However,
for ease of reference, this Opinion will still refer to Danielle Grubb as
Plaintiff.
and the parties have filed cross-motions for judgment (Docket
Entries 7, 10).
For the reasons that follow, the Court should
enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff
protectively
applied
for
DIB,
a
period
of
disability, and SSI on June 17, 2010, alleging a disability onset
date of September 16, 2005.
(Tr. 170-71, 172-76.)2
After denial
of the applications initially (Tr. 137-41) and on reconsideration
(Tr. 144-47), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 148-49).
Plaintiff and her
attorney appeared at the hearing. (Tr. 34-61.) The ALJ thereafter
determined that Plaintiff did not qualify as disabled within the
meaning of the Act (Tr. 29); further, the ALJ found that as a
result
of
Plaintiff’s
first
application,
res
judicata
barred
reconsideration of her disability during the time of the first
decision, so the ALJ only considered the period from September 16,
2009 (the day after the first ALJ’s decision), to the date of the
instant decision (Tr. 19). The Appeals Council subsequently denied
Plaintiff’s
request
for
review
and
2
did
not consider
the
new
Plaintiff’s instant application actually represents a second application
as she previously attempted to obtain benefits.
See Grubb v. Colvin, No.
1:12cv174, 2014 WL 2117033, at *1 (M.D.N.C. May 21, 2014) (unpublished). In her
previous application, Defendant denied Plaintiff’s first application, and this
Court (per United States District Judge Thomas D. Schroeder) affirmed. Id.
2
evidence provided by Plaintiff as it related to a period after the
ALJ’s decision.
In
(Tr. 1-4.)
rendering
that
disability
ruling,
the
ALJ
made
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the Social Security Act through December 31, 2010.
2.
[Plaintiff] has not engaged in substantial gainful
activity since September 16, 2009 . . . .
3.
[Plaintiff] has the following severe impairments:
chronic asthma with asthmatic bronchitis; tachycardia;
and obesity . . . .
. . .
4.
[Plaintiff] does 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 . . . .
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b), except that she has postural,
environmental[,] and mental limitations. [Plaintiff] has
postural limitations, such that she can only occasionally
climb ramps, climb stairs, stoop, bend, kneel, or crouch;
and she can never climb ladders, ropes[,] or scaffolds.
She has environmental limitations, such that she must
avoid concentrated exposure to wetness, humidity, and
extremes of cold and heat.
She must also avoid
concentrated exposure to operation control of moving
machinery and unprotected heights. Due to mild fatigue
associated with a combination of [Plaintiff’s] severe
impairments, she may not work at a production rate or
pace.
(Tr. 21-23 (internal parenthetical citations removed).)
3
the
In
light
functional
perform
of
the
capacity,
her
representative.
past
(Tr.
foregoing
the
ALJ
relevant
27.)
findings
determined
work
as
regarding
that
a
Accordingly,
Plaintiff
customer
the
residual
ALJ
could
service
ruled
that
Plaintiff did not have a disability, as defined by the Act, at any
time from September 16, 2009, through the date last insured.
(Tr.
29.)
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 . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).
“The courts
Oppenheim v. Finch, 495 F.2d
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
4
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 Social Security 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 [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing 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).
In 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
5
determinable physical or mental impairment which can be expected to
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)).3
“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.”
Id.
“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 residual functional capacity
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
3
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).
6
(4th Cir. 1999).4
A finding adverse to a claimant at any of
several points in the SEP forecloses an 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 residual functional capacity
(‘RFC’).”
Id. at 179.5
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform “past relevant
work” (“PRW”); if so, the claimant does not qualify as disabled.
4
“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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
5
“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.
7
Id. at 179-80.
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, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.6
ASSIGNMENTS OF ERROR
Plaintiff lodges three assignments of error. First, Plaintiff
contends that the ALJ erred by not giving Plaintiff’s treating
physician’s opinion appropriate weight.
(Docket Entry 8 at 4.)
Second, Plaintiff
erred
argues
that
the
ALJ
by
not
properly
considering the disability determinations of the North Carolina
State
Education
Assistance
Department of Education.
Authority
(Id. at 8.)
and
the
United
States
Finally, Plaintiff asserts
that the Appeals Council failed to consider the new evidence in her
6
A claimant thus can qualify as disabled 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.”).
8
request for review.
(Id. at 10.)
Defendant disagrees and urges
the Court to affirm the ALJ’s finding of no disability.
(Docket
Entry 11 at 12.)
A.
Treating Physician’s Opinion
Plaintiff contends that the ALJ erred by not giving proper
weight to the opinion of Plaintiff’s treating physician, Dr. Herbon
E. Fleming. (Docket Entry 8 at 4-8.)
Plaintiff contests all three
of the ALJ’s reasons for discounting Dr. Fleming’s opinion: (1)
because Dr. Fleming provided his opinion “in the context of helping
[Plaintiff] attempt to discharge student loans,” (2) he failed to
identify any “explicit functional or non-exertional limitations
that would impede the claimant’s return to work,” (3) and his
opinion “is not consistent with the other medical treatment records
relating to [Plaintiff’s] respiratory and pulmonary conditions.”
(Tr. 26.)
Plaintiff’s arguments lack merit.7
As to the first point, Plaintiff cites Pringle v. Astrue, No.
06-4112-JAR, 2007 WL 2909261 (D. Kan. Oct. 1, 2007) (unpublished),
7
At the outset, Plaintiff cites the wrong standard for when an ALJ may
discount a treating physician’s opinion. (Docket Entry 8 at 4-5 (citing Foster
v. Heckler, 780 F.2d 1125 (4th Cir. 1986) (requiring that persuasive
contradictory evidence exist to discount the treating physician’s testimony)).)
Rather than the persuasive contradictory evidence standard, the regulations now
in effect provide that controlling weight will be given to a treating physician’s
testimony when it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record,” 20 C.F.R. § 404.1527(c)(2). See
Pickett v. Colvin, No. 1:13CV161, 2014 WL 4748109, at *3 (M.D.N.C. Sept. 23,
2014) (unpublished) (Eagles, J.) (“[T]he ‘persuasive contradictory evidence’
test relied upon by [the plaintiff] is no longer the governing standard for
evaluating the opinions of treating physicians.”).
9
for support (Docket Entry 8 at 5); however, Plaintiff overstates
the importance of Pringle.
In Pringle, the ALJ discounted the
treating physician’s opinion on the basis that the physician
provided the opinion for the sole purpose of obtaining disability
benefits.
Id. at 8.
The
district court found such action
speculative and improper and remanded for further consideration.
Id. at 9-10.
Unlike Pringle, here, the ALJ did not speculate as to
the opinion’s purpose as Dr. Fleming had actually previously
submitted a physician’s certification of disability for Plaintiff’s
loan discharge application.
(Tr. 747-50.)
Furthermore, unlike in
Pringle, the ALJ had alternative and valid reasons for discounting
Dr. Fleming’s opinion, as discussed below.
As to the second point, Plaintiff argues that Dr. Fleming
provided non-exertional limitations.
(Docket Entry 8 at 7.)
In
that regard, Plaintiff notes that Dr. Fleming stated “that even
minimal exposure to noxious fumes such as perfumes or cleaning
sprays will precipitate an asthma attack.” (Id. (citing Tr. 492).)
However, as Defendant points out, Dr. Fleming “failed to explain
how Plaintiff’s asthma attacks would affect her functioning or her
ability to work, i.e., would it affect her ability to walk, would
she need to rest or lay down after an attack, would she need to
work in a clean environment.”
(Docket Entry 11 at 7-8.)
ALJ rightly discounted Dr. Fleming’s incomplete opinion.
10
Thus, the
As to the third point, Plaintiff asserts that the ALJ did not
provide any evidence of inconsistency by Dr. Fleming.
Entry 8 at 4.)
(Docket
In her decision, the ALJ stated that “Dr. Fleming’s
opinion is not consistent with the other medical treatment records
relating to the claimant’s respiratory and pulmonary problems.”
(Tr. 26.)
Although, the ALJ did not cite the particular records at
issue, substantial evidence in the record supports the ALJ’s
conclusion.
(See, e.g., Tr. 451-53 (revealing no issues with her
heart or lungs), 495-96 (revealing appropriate breathing and oxygen
levels), 689 (revealing no issues with her heart or lungs), 739
(same).)8
Finally, Plaintiff also adds that the ALJ did not address the
opinion of Dr. Denny Tate, who, on January 2, 2009, opined that,
“[Plaintiff] remains pretty much house bound due to respiratory
illness. [Plaintiff] [h]as been instructed not to go out into
crowds, not to go get a job because of her labile respiratory issue
and recurrent infections.”
(Docket Entry 8 at 7 (citing Tr. 692)
(emphasis removed).) Despite Plaintiff’s complaint, the ALJ had no
obligation to address this opinion as it occurred prior to the
relevant time period.
See Gunderson v. Astrue, 371 F. App’x 807,
809 (9th Cir. 2010) (finding no error for failure to consider
8
In addition, the Court previously upheld another ALJ’s determination that
Dr. Fleming’s opinion did not coincide with the medical records. See Grubb, 2014
WL 2117033, at *4.
11
evidence predating the onset date).
Moreover, any error in this
context qualifies as harmless, as Dr. Tate’s opinion echoes that of
Dr. Fleming, and (as noted above) the ALJ properly found that
record evidence did not support that opinion (see Tr. 26).
In sum, the Court should reject Plaintiff’s first assignment
of error.
B.
Other Agency Findings
Plaintiff argues that the ALJ failed to properly evaluate the
disability opinions from the United States Department of Education
and
the
North
Carolina
State
(Docket Entry 8 at 8-10.)
Education
Assistance
Authority.
Social Security Regulation (“SSR”) 06-
03p requires the ALJ to consider and explain the consideration
given to other agencies’ determinations of disability.
Here, the
ALJ accorded those agencies’ decisions little weight because they
“made [their] determinations under different laws and regulations,
which are neither binding on nor directly relevant to the Social
Security Administration’s evaluation on disability.”
(Tr. 26.)
Plaintiff objects to the ALJ’s analysis of the other agencies’
disability determinations and relies on Watson v. Astrue, No.
5:08-CV-553-FL,
(unpublished).
2009
WL
2423967
(E.D.N.C.
(Docket Entry 8 at 9-10.)
Aug.
6,
2009)
In that case, the ALJ
failed to even mention the disability determination of another
agency, so the magistrate judge recommended remand for further
consideration.
Watson, 2009 WL 2423967, at *7.
12
Here, the ALJ
directly
confronted
the
other
agencies’
determinations
explained her reasoning for according them little weight.
26.)
Thus, Watson does not aid Plaintiff.
and
(Tr.
By explaining her
reasoning, the ALJ complied with the requirements of SSR 06-03p,
and the Court should dismiss Plaintiff’s second assignment of
error.
C.
New and Material Evidence
Finally, Plaintiff asserts that the Appeals Council failed to
consider the effect of new evidence in denying review of the ALJ’s
decision.
The regulations provide: “If new and material evidence
is submitted, the Appeals Council shall consider the additional
evidence only where it related to the period on or before the date
of the administrative law judge hearing decision.”
§ 404.970(b).
20 C.F.R.
“Evidence is new within the meaning of this section
if it is not duplicative or cumulative.
Evidence is material if
there is a reasonable possibility that the new evidence would have
changed the outcome.”
Wilkins v. Secretary, Dep’t of Health and
Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en banc) (internal
citations omitted).
While on review with the Appeals Council, Plaintiff submitted
new evidence for their consideration.
(Tr. 2.)
That evidence
consisted of a Comprehensive Clinical Assessment from Triumph, LLC
dated January 8, 2013.
(Docket Entry 8-1.)
According to the
assessment, Plaintiff complained of - and the physician noted 13
anxiety,
crying
spells,
manic
and
hallucinations - among other things.
depressive
(Id. at 1.)
features,
and
As a result of
the assessment, the physician diagnosed Plaintiff with bipolar
disorder, social phobia, neuropathy, type one diabetes, asthma,
high
cholesterol,
migraines.
high
blood
(Id. at 10.)
pressure,
heart
arrhythmia,
and
Further, the physician noted that,
according to Plaintiff, the symptoms of bipolar began in at least
2008 (id.), and the depression began around 1991 and continued to
the day of the assessment (id. at 2).
In denying review, the
Appeals Council explained that the assessment related to a period
after the date of the ALJ’s decision, September 28, 2012, and that
it did not affect the ALJ’s determination of disability.
(Tr. 2.)
Pursuant to the regulations, 20 C.F.R. § 404.976(b)(1), the Appeals
Council returned the evidence and informed Plaintiff of her right
to file a new claim (Tr. 2).
Plaintiff asserts that the assessment constitutes new and
material
evidence
considered it.
and
that
the
Appeals
(Docket Entry 8 at 10-12.)
Council
should
have
In Plaintiff’s view,
the evidence qualifies as new because no other mental health
evaluation or screening exists in the record.
(Id. at 11.)
Furthermore, she believes that the evidence qualifies as material
as it could change the outcome of the claim.
(Id.)
In that
regard, Plaintiff notes that the ALJ found Plaintiff’s depression
did not qualify as severe for various reasons.
14
(Id. (citing Tr.
22)).
However, some of her medical providers had previously
contemplated whether she suffered from some form of mental illness.
(See Tr. 326-27 (listing “anxiety” as a diagnosis), 366 (wondering
whether Plaintiff’s coughing stemmed from psychogenic cause), 692
(noting Plaintiff’s depressive symptoms).)
Plaintiff posits that
the recent diagnosis of bipolar disorder may shed some light on the
earlier issues and could affect a subsequent determination of her
credibility and a formulation of her RFC.
(Docket Entry 8 at 11-
12.)
The Appeals Council did not err in rejecting Plaintiff’s new
evidence.
Although the report arguably relates to the relevant
period because it purports to diagnose Plaintiff with mental
impairments dating back to 2008 (or earlier), the report does not
qualify as material, because it would not likely change the outcome
of Plaintiff’s claims.
Although Plaintiff presented at Triumph,
LLC in January 2013 displaying symptoms of depression and bipolar
disorder and claimed those symptoms began in at least 2008 (if not
earlier) (see Docket Entry 8-1), the medical record from 2008 to
the date of the ALJ’s decision contains little to no evidence of
these symptoms.
Plaintiff claimed only “depression” on her
Disability
and
Report,
made
no
mention
of
manic
symptoms, hallucinations, or other psychotic symptoms.
or
bipolar
(Tr. 193.)
Moreover, Plaintiff did not discuss any mental symptoms at the
hearing before the ALJ.
(Tr. 36-60.)
15
Further, on one occasion in
early 2009 (prior to the relevant period in this case), Plaintiff
reported symptoms of depression and both suicidal and homicidal
ideation.
(Tr. 692.)
However, those symptoms abated within a few
months on anti-depressant medication.
(See Tr. 691.)
Aside from these references to symptoms, the record otherwise
lacks any mention of Plaintiff’s other newly diagnosed symptoms,
i.e., auditory and visual hallucinations, hyper or rapid speech,
flight of ideas, or racing thoughts.
Significantly, none of the
many physicians who examined Plaintiff from 2008 until the date of
the ALJ’s decision noted the existence of any such symptoms in
their treatment records.
LLC
physician’s
Indeed, the foundation of the Triumph,
retrospective
clinical
impression
rests
on
Plaintiff’s subjective report that her bipolar symptoms began in at
least 2008.
Such considerations undermine Plaintiff’s request for
relief on this ground.
See Clendening v. Astrue, 2011 WL 1130448,
*5 (N.D. Ohio 2011) (concluding that retrospective opinions require
no deference where treating physician lacked first-hand knowledge
of claimant’s condition prior to relevant period), aff’d, 482 F.
App’x 93 (6th Cir. 2012).
In other words, absent objective
evidence in the record corroborating the existence of such symptoms
during the relevant period, the Triumph physician’s retrospective
diagnosis lacks materiality.
See Etok v. Apfel, 152 F.3d 636, 640
(7th Cir. 1998) (“[A] retrospective diagnosis may be considered
only if it is corroborated by evidence contemporaneous with the
16
eligible period.”); accord Adams v. Chater, 93 F.3d 712, 714 (10th
Cir. 1996); Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996); Jones
v. Chater, 65 F.3d 102, 104 (8th Cir. 1995); Flaten v. Secretary of
Health & Human Services, 44 F.3d 1453, 1457–62 (9th Cir. 1995);
Evangelista v. Secretary of Health & Human Services, 826 F.2d 136,
140 (1st Cir. 1987); Lancaster v. Astrue, No. 1:07–cv–0044, 2009 WL
1851407, at *12 (M.D. Tenn. Jun. 29, 2009) (unpublished).
In
sum,
the
Appeals
Council
did
not
err
in
rejecting
Plaintiff’s new evidence and the Court should deny relief on
Plaintiff’s third assignment of error.
CONCLUSION
Plaintiff has failed to establish any basis to reverse the
conclusions of the ALJ or the Appeals Council finding Plaintiff not
disabled.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion to
Reverse the Decision of the Commissioner (Docket Entry 7) be
denied, that Defendant’s Motion for Judgment on the Pleadings
(Docket Entry 10) be granted, and that this action be dismissed
with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 6, 2015
17
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