Sneed v. Colvin
Filing
16
ORDER granting 12 Motion for Summary Judgment; denying 14 Motion for Summary Judgment. Court hereby reverses the decision of the Commissioner and remands this case for further administrative proceedings. Signed by District Judge Robert J. Conrad, Jr on 9/26/2017. (Pro se litigant served by US Mail.)(eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-00270-RJC
DANNY CHARLES SNEED,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.
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ORDER
THIS MATTER comes before the Court on pro se Plaintiff’s Motion for Summary
Judgment, (Doc. No. 12); Defendant’s Motion for Summary Judgment, (Doc. No. 14); and
Defendant’s Memorandum in Support, (Doc. No. 15).
I.
BACKGROUND
A.
Procedural Background
Plaintiff Danny Charles Sneed (“Plaintiff”) seeks judicial review of Nancy A. Berryhill’s
(“Defendant” or “Commissioner”) denial of his social security claim. (Doc. No. 1). On
November 19, 2012, Plaintiff filed an application for a period of disability and disability
insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 405 et seq.
(Doc. Nos. 11 to 11-8: Administrative Record at 296). Plaintiff alleged an inability to work due
to disabling conditions beginning on June 29, 2011. (Id. at 112). The Commissioner denied
Plaintiff’s application on January 9, 2013. (Id. at 48–67). Plaintiff filed a timely written request
for a hearing on April 8, 2013. (Id. at 112).
On October 14, 2014, Plaintiff, accompanied by a non-attorney representative,
participated in and testified at a hearing before an Administrative Law Judge (“ALJ”). (Id. at
112). The ALJ issued a decision on January 7, 2014, denying Plaintiff’s claims. (Id. at 109–25).
Plaintiff filed a request for review of the ALJ’s decision on or about April 1, 2016, which was
denied by the Appeals Council on October 9, 2015. (Id. at 13, 1–7). The January 7, 2014 ALJ
decision therefore became the final decision of the Commissioner.
Plaintiff’s Complaint seeking judicial review and a remand of her case was filed in this
Court on May 26, 2016. (Doc. No. 1). Plaintiff’s Motion for Summary Judgment, (Doc. No.
12), was filed December 2, 2016. Defendant’s Motion for Summary Judgment, (Doc. No. 14),
and Defendant’s Memorandum in Support, (Doc. No. 15), were filed February 6, 2017. Plaintiff
did not file a response to Defendant’s Motion for Summary Judgment and the time for doing so
has passed. The pending motions are ripe for adjudication.
B.
Factual Background
The question before the ALJ was whether Plaintiff was under a “disability” as defined for
Social Security purposes, from June 29, 2011 through the date Plaintiff was last insured, March
31, 2014.1 (Doc. No. 11-7 at 112). To establish entitlement to benefits, Plaintiff has the burden
of proving that he was disabled within the meaning of the Social Security Act. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). The ALJ concluded that Plaintiff was not under a
disability from June 29, 2011 through March 31, 2014. (Doc. No. 11-7 at 112–21).
The Social Security Administration has established a five-step sequential evaluation
process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:
(1) whether claimant is engaged in substantial gainful activity—if yes, not disabled;
Under the Social Security Act, 42 U.S.C. § 301, et seq., the term “disability” is defined as
an “inability to engage in any substantial gainful activity by reason of any medically
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.” Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (quoting 42 U.S.C. § 423(d)(1)(A)).
1
(2) whether claimant has a severe medically determinable physical or mental impairment,
or combination of impairments that meet the duration requirement in § 404.1509—if no,
not disabled;
(3) whether claimant has an impairment or combination of impairments that meets or
medically equals one of the listings in appendix 1 and meets the duration requirement—if
yes, disabled;
(4) whether claimant has the residual functional capacity (“RFC”) to perform his or her
past relevant work—if yes, not disabled; and
(5) whether considering claimant's RFC, age, education, and work experience he or she
can make an adjustment to other work—if yes, not disabled.
See 20 C.F.R. § 404.1520(a)(4)(i-v). In this case, the ALJ determined at the fifth step that
Plaintiff was not disabled. (Doc. No. 11-7 at 119–20).
Specifically, the ALJ first concluded that Plaintiff had not engaged in any substantial
gainful activity since June 29, 2011, the alleged disability onset date. (Id. at 114). At the second
step, the ALJ determined that Plaintiff has the following severe impairments: “status post left
knee arthroscopy with a limited synovectomy and medial and lateral menisectomy and a history
of asthma/chronic obstructive pulmonary disease.” (Id.). In this finding, the ALJ noted
Plaintiff’s history of hypertension, atrial fibrillation, and cardiomyopathy were “not severe
impairments causing more than a slight limitation on [Plaintiff’s] ability to perform work-related
functions.” (Id. at 115). The ALJ also found that Plaintiff’s contraction of Lyme’s disease had
since been relieved with no residual effects, preventing the episode from becoming a severe
impairment limiting Plaintiff’s ability to perform work-related functions. (Id.). Plaintiff’s back
pain was also not determined to be a severe limitation, nor was Plaintiff’s alleged depression
which was said to have been caused by his knee pain. (Id. at 116). At the third step, the ALJ
determined that Plaintiff did not have an “impairment or combination of impairments that met or
medically equals the severity of one of the listed impairments in 20 C.F.R. 404, Subpart P,
Appendix 1.” (Id. at 116–17).
Next, the ALJ assessed Plaintiff's RFC and found that he retained the capacity to perform
“light” work. (Id. at 117–19). Specifically, the ALJ found that Plaintiff retained the RFC to
perform “light work as defined in 20 CFR 404.1567(b) except: he cannot climb ladders, ropes,
and/or scaffolds; he can occasionally kneel, crouch, and climb ramps and stairs; he can
frequently crawl; and he must avoid concentrated exposure to fumes, odors, gases, poor
ventilation, etc.” 2 (Id.). In making reaching his conclusion, the ALJ specifically stated that he
“considered all symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence.” (Id.). The ALJ further
opined that he “considered opinion evidence in accordance with the requirements of 20 CFR
404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (Id.).
At the fourth step, the ALJ found that Plaintiff could not perform his past relevant work.
(Id. at 119). At the fifth and final step, the ALJ concluded, based on the testimony of a
vocational expert and “considering [Plaintiff's] age, education, work experience, and residual
functional capacity, [that] there are jobs that exist in significant numbers in the national economy
that [Plaintiff] could have performed.” (Id.). Therefore, the ALJ concluded that Plaintiff was
not under a disability, as defined by the Social Security Act, between June 29, 2011 and March
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Light work is defined as lifting or carrying up to ten pounds frequently and up to twenty
pounds occasionally. 20 C.F.R. 404.1567(b). “Even though the weight lifted may be very little,
a job is in this category when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg controls.” Id.
31, 2014. (Id. at 120).
II.
STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of
a final decision of the Commissioner to: (1) whether substantial evidence supports the
Commissioner's decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and (2) whether
the Commissioner applied the correct legal standards, Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). The District
Court does not review a final decision of the Commissioner de novo. Smith v. Schweiker, 795
F.2d 343, 345 (4th Cir. 1986); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972). As the Social Security Act provides, “[t]he findings
of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive.”
42 U.S.C. § 405(g). In Smith v. Heckler, the Fourth Circuit defined “substantial evidence” as
being “more than a scintilla and do[ing] more than creat[ing] a suspicion of the existence of a fact
to be established. It means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401);
see also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the
responsibility of the [Commissioner] and not the courts to reconcile inconsistencies in the medical
evidence . . . .”).
The Fourth Circuit has long emphasized that it is not for a reviewing court to weigh the
evidence again, nor to substitute its judgment for that of the Commissioner, assuming the
Commissioner's final decision is supported by substantial evidence. Hays, 907 F.2d at 1456. See
also Smith v. Schweiker, 795 F.2d at 345; Blalock, 483 F.2d at 775. Indeed, this is true even if
the reviewing court disagrees with the outcome—so long as there is “substantial evidence” in the
record to support the final decision below. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
IV.
DISCUSSION
Pro se Plaintiff’s Motion for Summary Judgment presents two issues. First, whether the
ALJ’s decision, which misstates relevant evidence, is supported by substantial evidence. (Doc.
No. 12 at 1). Second, whether Plaintiff’s recent MRI warrants remand to the Commissioner for
consideration of additional evidence. (Id.). These issues will be addressed separately.
A.
Substantial Evidence
Defendant concedes that the ALJ misstated part of Crystal Sneed’s third-party function
report in his discussion of Plaintiff’s RFC. (Doc. No. 15 at 8 n.4). As the first piece of evidence
he addresses, the ALJ cites the third-party function report, (Doc. No. 11-7 at 14), as stating: “[t]he
claimant takes care of his cows and pet dogs by watering and feeding them.” (Doc. No. 11-3 at
118). However, the third-party function report actually states that Plaintiff is no longer capable of
caring for his animals, and that Plaintiff’s son cares for the cows and dogs. (Doc. No. 11-7 at 14).
This is consistent with Plaintiff’s own function report. (Id. at 9). Defendant in its brief argues the
ALJ’s error is harmless because there was substantial evidence to support his RFC finding. (Doc.
No. 15 at 8 n.4). Because the Court cannot do a proper review to determine whether substantial
evidence supports the ALJ’s finding, remand is warranted.
It is well established that “it is not within the province of a reviewing court to determine
the weight of the evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “Where an
insufficient record precludes a determination that substantial evidence supported the ALJ's denial
of benefits, this court may not affirm for harmless error.” Patterson v. Comm'r of Soc. Sec.
Admin., 846 F.3d 656, 658 (4th Cir. 2017). As such, clear misstatements in the ALJ’s decision
make it impossible for the reviewing court “to conduct a proper review of the record to determine
if there was substantial evidence to support the unfavorable decision.” Lewis v. Astrue, No. 4:082386-GRA, 2009 WL 2914169, at *8 (D.S.C. Sept. 4, 2009). See also Schilling v. Colvin, No.
7:11-CV-176-FL, 2013 WL 1246772, at *5 (E.D.N.C. Mar. 26, 2013) (emphasizing ALJ’s factual
error was the first reason provided in RFC discussion); Rhyne v. Astrue, No. 3:09-CV-412-FDWDSC, 2011 WL 1239800, at *3 (W.D.N.C. Mar. 30, 2011) (holding it “inappropriate for [the court]
to speculate as to how the ALJ would have weighed the evidence in the absence of his [factual]
error”).
Here, it is impossible for the Court to determine how much of the ALJ’s assessment of
Plaintiff’s RFC was clouded by the incorrect belief that Plaintiff was capable of tending to his
livestock and pets. The ALJ began his discussion of Plaintiff’s RFC with a clearly erroneous
misstatement of Plaintiff’s activities of daily living. (Doc. No. 11-3 at 118). The ALJ later states
that “the claimant’s treatment notes and reported activities of daily living, to which the undersigned
has given significant weight, support a finding that he can perform a range of light work.” (Id. at
119). Finally, the ALJ notes that he assigned little weight to Crystal Sneed’s third-party function
report, to the extent it is inconsistent with Plaintiff’s RFC. (Id.).
It is reasonable to infer the ALJ’s misstatement of Plaintiff’s daily activities played a
significant role in his decision to discount Plaintiff’s credibility, (Id. at 119), place little weight on
the remainder of Crystal Sneed’s report, (Id. at 120), and ultimately formulate Plaintiff’s RFC,
(Id.). However, it is inappropriate for this Court to speculate how the ALJ would have weighed
the evidence in the absence of his error. Rhyne, 2011 WL 1239800, at *3.
Having found that the ALJ erred in his factual findings as to a significant stated reason for
his determination of Plaintiff’s RFC, the Court concludes that the ALJ's finding is not supported
by substantial evidence.
B.
Additional Evidence
When presented with new evidence, the Appeals Council “first determines if the
submission constitutes ‘new and material’ evidence that ‘relates to the period on or before the date
of the [ALJ’s] hearing decision.’” Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (quoting §
404.970(b)).
Evidence considered “new” must not seem “duplicative or cumulative.”
Id.
Evidence considered “material” must present a “reasonable possibility that the new evidence
would have changed the outcome” of the ALJ’s decision. Id. (quoting Wilkins v. Sec'y, Dep't of
Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). If the evidence is considered new and
material, the Appeals Council must take that evidence into consideration—along with the entire
record— when deciding whether to grant review. Id. If the Appeals Council then finds that the
current record’s weight of evidence is contrary to the ALJ’s decision, it may grant review and
either remand the case back to the ALJ or issue its own decision. Id.
Plaintiff argues that remand is warranted due to new pathologies from a January 20, 2016
MRI. (Doc. No. 12 at 1). Defendant responds by arguing that remand is not warranted because
the MRI is not considered new and material evidence relating to the period on or before the date
of the ALJ decision. (Doc. No. 15 at 5). Upon review, the Court notices that this 2016 MRI
appears to have been submitted into to the Medical Evidence of Record for the Appeals Council’s
review. (Doc. No. 11-3 at 47–52). The Appeals Council, however, denied Plaintiff’s request for
review. (Id. at 2). It does not seem that the Appeals Council relied upon this new MRI in their
review. While the 2016 MRI appears in Plaintiff’s file, the Appeals Council states it reached its
conclusion by considering materials listed on an enclosed Order of Appeals Council—which
attached a 2015 brief written by Shaun W. Beach—and records from OrthoCarolina, dated from
April 1, 2015 to May 14, 2015. (Id. at 2).
The Court notes that the ALJ’s decision was partly based on a previous 2012 MRI, (Doc.
No. 11-8 at 493), of Plaintiff’s back. In concluding that Plaintiff’s back pain was nothing more
than a slight limitation on his ability to work, the ALJ noted that the 2012 MRI revealed “no
herniation, stenosis, or nerve compression.” (Doc. No. 11-3 at 116). Plaintiff’s new MRI,
however, described moderate to mild stenosis in the concluding impressions. (Id. at 51–52).
Despite the findings of this 2016 MRI, the question becomes whether or not the new
evidence is material to the ALJ’s decision. In its review of whether the new evidence was properly
relied upon, this Court finds that the 2016 MRI is new in that it is not duplicative due to the
symptoms not present in the 2012 MRI. However, the evidence is not material because it does not
relate to the pertinent time period. See Finney v. Colvin, 637 F. App'x 711, 716–17 (4th Cir. 2016)
(assessing the influence of new evidence with the qualification that the “evidence is relevant to the
time period at issue”). The ALJ focused the relevant inquiry as to whether Plaintiff was disabled
between June 29, 2011 and March 31, 2014. (Doc. No. 11-3 at 120). Plaintiff’s additional
evidence postdates this time period by 18 months. While the 2012 MRI may be material to the
period under consideration, a 2016 MRI shows symptoms that may have arisen after the scope of
the ALJ’s inquiry. In fact, the Appeals Council considered, but declined to rely upon, records
from OrthoCarolina specifically because the “new information [was] about a later time.” (Id. at
2).
The ALJ’s accounting of Plaintiff’s back injury is otherwise based on substantial evidence.
Plaintiff’s 2012 MRI displayed only mild disc bulges without any signs of “herniation, stenosis,
or nerve compression.” (Id. at 116). Furthermore, the ALJ noted that Plaintiff did not require any
follow up care for his alleged back pain, which suggested that his subsequent stenosis had yet to
develop. (Id.). The Court concludes that the ALJ relied on substantial evidence to reach the
conclusion that, during the relevant time period, Plaintiff’s back pain was not a “severe impairment
causing more than a slight limitation on [Plaintiff’s] ability to perform work-related functions.”
(Id.). Importantly, however, the ALJ’s misstatement of fact discussed above nonetheless demands
a remand as it clouds the ALJ’s RFC analysis as a whole.
V.
CONCLUSION
Because the Court does not find Plaintiff’s new evidence pertinent to the relevant period,
the 2016 MRI does not warrants remand to the Commissioner for the consideration of additional
evidence. However, remand remains appropriate on the basis of the ALJ’s factual error. Although
the ALJ had substantial evidence to conclude the severity of Plaintiff’s back injury, his
misstatement of fact risks the overall analysis and eventual determination of Plaintiff’s RFC.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion for Summary Judgment, (Doc. No. 12), is GRANTED;
2. Defendant’s Motion for Summary Judgment, (Doc. No. 14), is DENIED;
3. The Court hereby REVERSES the decision of the Commissioner and REMANDS
this case for further administrative proceedings; and
4. The Clerk of the Court is directed to close this case.
Signed: September 26, 2017
SEALED DOCUMENT with access to All Parties/Defendants.
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