VERMILYEA v. BERRYHILL

Filing 18

MEMORANDUM ORDER signed by JUDGE N. C. TILLEY, JR. on 2/5/2019. With the clarifications stated in this Memorandum Order, and for the reasons stated in the Recommendation, Plaintiff Richard R. Vermilyea's Motion for Judgment on the Pleadings (Doc. # 10 ) is DENIED, Commissioner's Motion for Judgment on the Pleadings (Doc. # 12 ) is GRANTED, and the final decision of the Commissioner is upheld. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RICHARD R. VERMILYEA,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV405

MEMORANDUM ORDER
The Recommendation of the United States Magistrate Judge was filed with
the Court in accordance with 28 U.S.C. § 636(b) and was served on the parties in
this action on July 23, 2018. (Recommendation of the U.S. Magistrate Judge
(“Recommendation”) [Doc. #15]; Notice of Mailing Recommendation [Doc. #16]).
Plaintiff Richard R. Vermilyea (“Vermilyea”) objected to the Recommendation
within the time limits prescribed by 28 U.S.C. § 636, (Obj. to the Recommended
Ruling (“Vermilyea’s Objs.”) [Doc. #17]), to which Nancy A. Berryhill
(“Commissioner”) filed no response. (See generally docket.) For the reasons
explained below, Plaintiff Richard R. Vermilyea’s Motion for Judgment on the
Pleadings [Doc. #10] is DENIED and Commissioner’s Motion for Judgment on the
Pleadings [Doc. #12] is GRANTED.

I.
Vermilyea has asserted two objections, arguing the Magistrate Judge erred
by: (1) “not finding improper the Administrative Law Judge’s [ALJ] failure to
accord appropriate weight to the opinion of Mr. Vermilyea’s treating therapist” and
(2) “not finding improper the Appeals Council’s decision not to remand the case
given the new and material evidence submitted.” (Vermilyea’s Objs. at 2-3.) Each
objection is addressed in turn.
A.
In his first objection, Vermilyea relies on Radford v. Colvin, 734 F.3d 288
(4th Cir. 2013), to support his contention that the ALJ failed to accord appropriate
weight to his treating therapist by conducting a conclusory analysis that does not
allow for meaningful review. (Vermilyea Objs. at 2.) In Radford, the Fourth Circuit
held that
[a] necessary predicate to engaging in substantial evidence review is a
record of the basis for the ALJ's ruling. The record should include a
discussion of which evidence the ALJ found credible and why, and
specific application of the pertinent legal requirements to the record
evidence. If the reviewing court has no way of evaluating the basis
for the ALJ's decision, then “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation
or explanation”.
734 F.3d at 295 (internal citations omitted). 1

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Although Radford occurred in the context of an ALJ’s decision regarding the
applicability of a listing, the Fourth Circuit has applied this reasoning in cases
considering other issues. See e.g., Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir.
2017) (citing Radford when determining the ALJ failed to explain which of the
plaintiff’s statements undercut her subjective evidence of pain intensity).
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In this case, the ALJ’s analysis does not run afoul of Radford because it
does afford the reviewing court a meaningful chance for review. Here, the ALJ
determined that the therapist’s opinion was entitled to little weight because “the
record clearly shows that once the claimant is [sic] began taking his medications as
prescribed he stabilized relatively quickly.” (Social Security Administration Office of
Disability Adjudication and Review Decision (“ALJ Decision”), Administrative
Record (“AR”) at 21.) However, before the ALJ made this determination he
provided an extensive summary of the evidence in the administrative record that
supported his decision. (Id. at 17-20.) For example, the ALJ discussed that in April
2014, Vermilyea had been off his medications for several months, but by June
2014, he reported that “things were getting better” and by the following month,
he reported he was doing “significantly better and that his medications were
helping significantly with auditory hallucinations.” (Id. at 19.) The summary of the
evidence provided by the ALJ permits meaningful review of how the ALJ arrived at
his determination, and therefore Vermilyea’s objection is overruled.
B.
Vermilyea’s second objection is that the Magistrate Judge erred by “not
finding improper the Appeals Council’s decision not to remand the case given the
new and material evidence submitted.” (Vermilyea’s Objs. at 3.) Vermilyea argues
that the three letters submitted by Dr. McEwen and Mr. Mundy should have been
considered as new and material evidence because they relate to the relevant period

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of review, and accordingly, the case should have been reversed or remanded. (Id.
at 3-4.)
When the Appeals Council receives additional evidence, it must review that
evidence if it is “new and material evidence relating to the period on or before the
date of the ALJ decision.” Parham v. Comm’r of Soc. Sec., 627 F. App’x 233,
233 (4th Cir. 2015) (quoting Wilkins v. Sec’y, Dep’t of Health & Human Servs.,
953 F.2d 93, 95 (4th Cir. 1991) (en banc)). To determine if evidence relates to
the relevant period of review, “the date of the new evidence is not dispositive of
whether the Appeals Council should consider it.” Norris v. Colvin, 142 F. Supp. 3d
419, 423 (D.S.C. 2015). Instead, the relevant inquiry is if the contents of the
proffered evidence concern the period on or before the ALJ’s decision. Id. (citing
Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990)). Thus, if the proffered
evidence concerns events occurring before the decision of the ALJ, and it is new
and material, it must be considered by the Appeals Council, and if it was not
considered by the Appeals Council, it must be remanded to the ALJ for further
consideration. Id. at 424-25; see also Parham, 627 F. App’x at 233.
The 2016 letter written by Dr. McEwen does not relate to the period of
review because its contents do not concern the period before the ALJ’s decision.
The ALJ made his decision on August 31, 2015. (ALJ Decision, AR 22.) In his
letter, Dr. McEwen writes that the letter is to “update previous correspondence
dated 09/24/2015 regarding Richard Vermilyea’s continued participation in
treatment at Freedom House Recovery Center.” (AR 755.) Given that the ALJ
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decision was issued on August 31, 2015, and that this letter is intended as an
update from a letter previously submitted one month after the ALJ decision, in
September of 2015, it is clear that this letter refers to conduct that did not occur
before the ALJ’s decision. Therefore, it does not relate to the relevant period, and
must not be considered.
The second letter from 2016 likely does not relate to the relevant period, but
even if it did, it would not constitute new and material evidence. The letter, dated
June 28, 2016, was written by Mr. Mundy, and while it states that he has worked
with Mr. Vermilyea since 2015, it is not clear when in 2015 that relationship
began. (AR 754.) If the relationship began before the ALJ’s decision on August
31, 2015, the letter would relate to the relevant period. However, even assuming
the letter did relate to that period, it still would not constitute new and material
evidence. “Evidence is new if it is not duplicative or cumulative and is material if
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) (internal
quotations omitted) (citing Wilkins, 953 F.2d at 96). In this case, the letter is
duplicative of information already in the record, such as Mr. Vermilyea’s diagnoses
and symptoms. (See AR 754.) Furthermore, the letter is not material because it
offers no additional evidence that is likely to change the outcome of the ALJ’s
decision. (See id.)
The final letter is a September 24, 2015 letter written by Dr. McEwen. This
letter likely does relate back to the period before the ALJ’s decision, because Dr.
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McEwen states he has known Mr. Vermilyea for over one year and discusses Mr.
Vermilyea’s diagnoses and symptoms. (AR 753.) However, even if the letter does
relate to the relevant period, it does not constitute new and material evidence that
must be considered. Like the letter from Mr. Mundy, this letter is duplicative of
the information in the record, such as Mr. Vermilyea’s diagnoses and symptoms.
(See e.g., ALJ Decision, AR 17.) Furthermore, the letter is not material because it
offers no additional evidence likely to change the outcome of the ALJ’s decision,
especially since the ALJ already considered Dr. McEwen’s treatment notes in
forming his decision. (See e.g., AR 609-11, 613-15, 617-19, 622-24).
Thus, because none of the three letters constitutes new and material
evidence relating to the period of review, neither remand nor reversal is necessary,
and Vermilyea’s objection is overruled.
II.
With the clarifications stated in this Memorandum Order, and for the reasons
stated in the Recommendation, IT IS HEREBY ORDERED that Plaintiff Richard R.
Vermilyea’s Motion for Judgment on the Pleadings [Doc. #10] is DENIED,
Commissioner’s Motion for Judgment on the Pleadings [Doc. #12] is GRANTED,
and the final decision of the Commissioner is upheld.
This the 5th day of February, 2019.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge

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