Parker v. Colvin
Filing
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ORDER denying 10 Motion for Summary Judgment; granting 12 Motion for Summary Judgment and the decision of the Commissioner, denying the relief sought by plaintiff, is AFFIRMED. Signed by Senior Judge Graham Mullen on 12/27/2016. (eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO. 5:16CV33-GCM
RODERICK TIM PARKER,
)
)
Plaintiff,
)
)
Vs.
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CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
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Defendant.
)
ORDER
THIS MATTER is before the Court upon Plaintiff’s Motion for Summary
Judgment and the Commissioner’s Motion for Summary Judgment.
Having
carefully considered such motions and reviewed the pleadings, the Court enters the
following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I.
Administrative History
Plaintiff filed an application for a period of disability and Disability Insurance
Benefits. Plaintiff’s claim was denied both initially and on reconsideration;
thereafter, Plaintiff requested and was granted a hearing before an administrative
law judge (“ALJ”). After conducting a hearing, the ALJ issued a decision which
was unfavorable to Plaintiff, from which Plaintiff appealed to the Appeals Council.
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Plaintiff’s request for review was denied and the ALJ’s decision affirmed by the
Appeals Council, making the ALJ’s decision the final decision of the Commissioner
of Social Security (“Commissioner”). Thereafter, Plaintiff timely filed this action.
II.
Factual Background
It appearing that the ALJ’s findings of fact are supported by substantial
evidence, the undersigned adopts and incorporates such findings herein as if fully
set forth. Such findings are referenced in the substantive discussion which follows.
III.
Standard of Review
The only issues on review are whether the Commissioner applied the correct
legal standards and whether the Commissioner’s decision is supported by substantial
evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Review by a federal court is not de novo, Smith v.
Schwieker, 795 F.2d 343, 345 (4th Cir. 1986); rather, inquiry is limited to whether
there was “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion,” Richardson v. Perales, supra. Even if the undersigned were
to find that a preponderance of the evidence weighed against the Commissioner’s
decision, the Commissioner’s decision would have to be affirmed if supported by
substantial evidence. Hays v. Sullivan, supra.
IV.
Substantial Evidence
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A.
Introduction
The Court has read the transcript of Plaintiff’s administrative hearing, closely
read the decision of the ALJ, and reviewed the extensive exhibits contained in the
administrative record. The issue is not whether a court might have reached a
different conclusion had it been presented with the same testimony and evidentiary
materials, but whether the decision of the ALJ is supported by substantial evidence.
The undersigned finds that it is.
B.
Sequential Evaluation
A five-step process, known as “sequential” review, is used by the
Commissioner in determining whether a Social Security claimant is disabled. The
Commissioner evaluates a disability claim under Title II pursuant to the following
five-step analysis:
(1)
Whether the claimant is engaged in substantial gainful activity;
(2)
Whether the claimant has a severe medically determinable
impairment, or a combination of impairments that is severe;
(3)
Whether the claimant’s impairment or combination of impairments
meets or medically equals one of the Listings in 20 C.F.R. Part 404,
Subpart P, Appendix 1;
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(4)
Whether the claimant has the residual functional capacity (“RFC”) to
perform the requirements of his past relevant work; and
(5)
Whether the claimant is able to do any other work, considering his
RFC, age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(i-v). In this case, the Commissioner determined
Plaintiff’s claim at the fifth step of the sequential evaluation process.
C.
The Administrative Decision
In rendering his decision, the ALJ applied the five-step sequential evaluation
process set forth in the regulations for evaluating disability claims. See Barnhart v.
Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At
step one, the ALJ found that Mr. Parker had not engaged in substantial gainful
activity since March 31, 2011, the date he alleged his disability began. (Tr. 26.)
At step two, the ALJ found that Mr. Parker had the following severe impairments:
seizure disorder and osteoarthritis of the right knee. (Tr. 27.) At step three, the
ALJ found that Mr. Parker did not have an impairment or combination of
impairments that met or medically equaled a Listing. (Tr. 30.)
Before proceeding to step four, the ALJ determined that Mr. Parker had the
residual functional capacity to perform light work, further limiting him to: no work
“requiring the use of his lower right extremity for pushing or pulling, or operation
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of foot controls”; occasional squatting, kneeling, and crouching; and no jobs
requiring exposure to unprotected heights or dangerous machinery. (Tr. 30-38.)
At step four, the ALJ found that Mr. Parker could no longer perform his past
relevant work. (Tr. 38.) At step five, the ALJ found that, based on Mr. Parker’s
age, education, work experience, and residual functional capacity, as well as
testimony from a vocational expert, Mr. Parker could perform jobs existing in
significant numbers in the national economy, including marker, final inspector, and
router. (Tr. 39-40.) As a result, the ALJ found that Mr. Parker was not disabled
under the Act. (Tr. 40.)
D.
Discussion
1.
Plaintiff’s Assignments of Error
Plaintiff has made the following assignments of error: whether the ALJ erred
in failing to adopt, without explanation, the RFC findings in the North Carolina
Department of Health and Human Services (“NCDHHS”) Medicaid benefits award;
whether the ALJ erred by failing to include any RFC limitations consistent with the
limitations alleged in Mr. Parker’s adult function report and in his mother’s third
party function report, both of which were assigned great weight by the ALJ; and
whether new and material evidence necessitates a remand for further consideration.
Plaintiff’s assignments of error will be discussed seriatim.
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2.
First Assignment of Error
Mr. Parker was awarded Medicaid benefits on September 17, 2013. In the
decision awarding benefits, Ms. Garrou, a Hearing Officer for the NCDHHS,
determined that Mr. Parker was limited to sedentary work, but ultimately
concluded that he was disabled. Her RFC findings limited Mr. Parker to
occasionally lifting 20 lbs., frequently lifting 10 lbs., standing and walking for 4
hours in an 8 hour workday, and occasionally stooping, crouching, and crawling.
He was also limited to no concentrated exposure to heights and workplace hazards.
The ALJ took judicial notice of the NCDHHS decision, but correctly noted
that the decision was not binding on the Social Security Administration. (Tr. 32.)
He gave the decision “some weight, but not great weight.” (Tr. 38.)
Mr. Parker argues that the ALJ should have provided additional explanation
of the reasons he gave limited weight to the decision of the NCDHHS. This
argument fails to take into account the ALJ’s discussion of substantial evidence in
support of his decision. (Tr. 30-38.) It also fails to take into account the ALJ’s
decision to incorporate restrictions set forth in the NCDHHS decision and even go
beyond some of those restrictions. (Tr. 30, 38.)
As noted, decisions on disability from other agencies are not binding on the
Commissioner, though they are entitled to consideration. DeLoatche v. Heckler,
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715 F.2d 148, 150 n.1 (4th Cir.1983); 20 C.F.R. §§ 404.1504, 416.904; Social
Security Ruling (“SSR”) 06-3p, 2006 WL 2329939, at *6-7. Here, the ALJ
identified and discussed the NCDHHS decision in detail. After laying out the
relevant standard for evaluating disability decisions from other agencies (Tr. 32),
the ALJ decided to give only some weight to the decision from the NCDHHS. (Tr.
38.) He specifically acknowledged, and adopted, the state agency’s finding that
Mr. Parker could lift up to 20 pounds occasionally (Tr. 38, 342), stating that that
exertional limitation was “more reasonable in light of [Mr. Parker]’s limitations.”
(Tr. 38.) He then incorporated this exertional restriction into his residual
functional capacity finding: he found Mr. Parker could tolerate light work, which
calls for lifting and carrying up to 20 pounds occasionally. (Tr. 30; see 20 C.F.R.
§§ 404.1567(b), 416.967(b).) The ALJ also adopted the restriction to “occasional”
postural activities in the NCDHHS decision. (Tr. 30, 342.) The ALJ then moved
beyond one of the restrictions in the NCDHHS decision by precluding all exposure
to hazards, as opposed to the “concentrated exposure” the NCDHHS found. (Tr.
30, 342.) Accordingly, there is no merit to Mr. Parker’s contention that the ALJ
did not incorporate restrictions from the NCDHHS decision.
The only arguable distinction between the two findings is that the NCDHHS
decision restricts Mr. Parker to four hours of combined standing and walking per
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day. The evidence in the record supports the ALJ’s decision not to adopt this
conclusion. (Tr. 38.) For example, opinion evidence from the state agency
consultants, which the ALJ gave some weight, stated that Mr. Parker could sit,
stand, or walk for up to six hours in an eight-hour workday. (Tr. 110, 121.)
Furthermore, Mr. Parker’s subjective allegations of disabling pain were, as
the ALJ pointed out in his decision, non-existent or mild at the alleged onset date
and inconsistent in more recent records. (Tr. 34, 381, 383, 385, 386, 434, 441,
463, 469-470.) As the ALJ also discussed at length in his decision, Mr. Parker’s
complaints about knee pain were not consistent with the objective medical
evidence, which did not show acute knee problems that might have caused the pain
and limitations Mr. Parker claimed. (Tr. 34, 369, 448, 453.) Accordingly, the
record supports the ALJ’s decision to give some weight, but not controlling
weight, to the NCDHHS decision.
3.
Second Assignment of Error
Next, Mr. Parker claims that the ALJ should have explained why, having
given “great weight” to subjective written reports from Mr. Parker and his mother,
he did not adopt all of the limitations claimed in those report. In particular, Mr.
Parker claims that the ALJ should have adopted—or explained why he did not
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adopt—limitations arising out of side effects from medication, dizziness and
lightheadedness, low energy, and problems with memory.
While the ALJ gave the written reports “great weight,” he did not purport to
adopt them in their entirety. For example, despite the decision to give the reports
great weight, the ALJ noted that the reports actually undermined Mr. Parker’s
claims of disabling knee pain. (Tr. 35.) The record supports that finding. As the
ALJ pointed out in his decision, Mr. Parker did not attribute any limitations to knee
pain, he mentioned only his seizure disorder. (Tr. 35, 272, 274, 276.) Despite
those limitations, Mr. Parker acknowledged that “he was able to perform his
personal care without difficulty or assistance, and said he was able to do household
chores, prepares simple meals, and do [some] yard work.” (Tr. 35, 271-272.) Mr.
Parker also said that “he could go shopping, watch television, read, work on a
computer, and manage his personal finances.” (Tr. 35, 272-273.) All of this
supports the ALJ’s decision not to adopt all limitations from these reports.
The limitations identified in Mr. Parker’s motion do not change this result.
He claims that the ALJ should have addressed limitations attributable to side
effects from his medication. The record offers no support for such limitations.
Aside from Mr. Parker’s own statements in the report (Tr. 276), which the ALJ did
not adopt, there is no evidence of significant side effects from medication. Mr.
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Parker did not tell his treating physicians about any side effects, and none are
stated in examination notes. (Tr. 398-399, 434- 440, 442-447, 448-453, 454-456,
462-464, 468-471.) He did not testify to any side effects during either
administrative hearing. (Tr. 61-90.) The state agency consultants did not find any
evidence of side effects from medication. (Tr. 102, 108-109, 111.) There is not
even any indication of side effects in the newly submitted evidence Mr. Parker
seeks to introduce. The statements regarding side effects in Mr. Parker’s written
report, dated November 28, 2011, also are inconsistent with Mr. Parker’s statement
to Dr. Hatharasinghe, dated February 29, 2012, that he was not on any medication
and that his seizures had only recently restarted, after having been absent for a
period of years. (Tr. 399.)
Nor is there evidence that Mr. Parker’s dizziness or lightheadedness presents
a significant limitation. Treatment notes indicate that the dizziness was
attributable not to medication or to seizures, but to high blood pressure, which has
since been brought under control, or to excessive heat or “stress.” (Tr. 378, 385,
424.) Also, Mr. Parker denied experiencing dizziness in treatment notes. (See,
e.g., Tr. 418, 426, 435, 439, 446.) Moreover, As the ALJ pointed out in his
decision, “the treatment [Mr. Parker] received [for seizures] has been generally
successful . . . .” (Tr. 33.) The record supports this conclusion as well. (Tr. 376-384
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(seizures not listed among “Active Problems”), 385-388 (seizure disorder listed
among “Inactive Problems”), 437-438 (seizure disorder “stable” with medication;
no reference to seizures in recent weeks).) The ALJ specifically referenced those
treatment notes, among others, in his decision. (Tr. 33.) There is no basis for
incorporating, or even discussing, additional limitations attributable to seizures,
including, among others, dizziness or lightheadedness.
The same is true for “a lack of energy” and memory problems. Aside from
Mr. Parker’s own statements, there is no support in the record for significant
symptoms along these lines, much less evidence that might support any workrelated limitations (let alone limitations beyond what the ALJ already found).
Accordingly, no additional discussion was necessary.
4.
Third Assignment of Error
Finally, Mr. Parker argues that this case should be remanded so that the
Commissioner can consider new evidence. The sixth sentence of 42, United States
Code, Section 405(g) provides:
The court may, . . . at any time order additional evidence to be taken
before the Secretary, 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; and
the Secretary shall, after the case is remanded, and after hearing such
additional evidence if so ordered, modify or affirm his findings of fact
or his decision, or both, and shall file with the court any such additional
and modified findings of fact and decision, and a transcript of the
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additional record and testimony upon which his action in modifying or
affirming was based.
Id.
The statute requires a showing that the belatedly-submitted evidence is both “new”
and “material,” and that a plaintiff has “good cause” for failing to submit the
evidence earlier. Fagg v. Chater, 106 F.3d 390 (Table), 1997 WL 39146, *2 (4th
Cir. Feb. 3, 1997). The burden of showing that all of the sentence six
requirements have been met rests with Plaintiff. Id.
Evidence is material if there is “a reasonable possibility that the new
evidence would have changed the outcome” of the ALJ’s decision. Wilkins v. Sec’y
of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1992). The evidence at issue
is a consultative examination report from Dr. David Morris containing restrictions
nearly identical to those included in the ALJ’s residual functional capacity finding.
(DE 11-4.) The only arguably different restriction is Dr. Morris’ statement that
Mr. Parker could walk for only four hours in an eight-hour workday. (DE 11-4, at
6.) As discussed, the ALJ properly omitted the NCDHHS’ limitation to four hours
of walking in an eight-hour workday and the record supports that finding. (Tr. 38.)
Again, the state agency consultants’ opinions state that Mr. Parker could sit, stand,
or walk for up to six hours in an eight-hour workday, and Mr. Parker’s other claims
along these lines were deemed inconsistent with the other evidence in the record.
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The evidence, therefore, is not material because, if considered, the outcome would
have been the same.
Finally, the evidence presented by Plaintiff is the type of evidence that could
and should have been presented earlier. Unlike evidence that is found during a
surgery occurring after an administrative decision, the evidence at issue here could
have been presented at the administrative level. In Melkonyan v. Sullivan, 111 S.
Ct. 2157, 2164 (1991), the Supreme Court discussed the characteristics of a
sentence six remand for new and material evidence, stating that in amending the
sixth sentence of Section 405(g), “Congress made it unmistakably clear” that it
intended to limit remands for “new evidence.” Id. The Court further held that
Congress added the “good cause” requirement to try to speed up the judicial
process, “so that these cases would not just go on and on.” Id. Plaintiff’s failure to
obtain this evidence before lodging this appeal is not good cause for failing to
develop the evidence earlier. See Rogers v. Barnhart, 204 F. Supp. 2d 885, 892
(W.D.N.C. 2002) (denying remand because claimant did not “show good cause for
not presenting such evidence at the administrative level”); White v. Colvin, No.
3:15-cv-00197-FDW, 2016 WL 3381265, at *3 (W.D.N.C. June 14, 2016)
(affirming, in part, because claimant did not make the required showing of “good
cause for why this evidence was not presented earlier”).
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Mr. Parker’s only statement on this issue is that counsel representing him
before this court “was not Mr. Parker’s attorney of record at any time prior to the
filing of the Complaint to initiate this action and is not able to offer any
explanation why this examination was not made a part of the record previously.”
(Pl. Br. 13.) Because that statement concedes that there is no explanation for why
this document was not made a part of the record at the administrative level, Mr.
Parker has not met his burden to show good cause in support of his request for
remand. This Court has noted that error or inadvertence by counsel cannot form the
basis for the good-cause showing required to justify a sentence-six remand. See
Shaver v. Colvin, No. 3:13-CV-00388-FDW, 2014 WL 3854143, at *4 (W.D.N.C.
Aug. 6, 2014) (collecting cases).
E.
Conclusion
The undersigned has carefully reviewed the decision of the ALJ, the
transcript of proceedings, Plaintiff’s motion and brief, the Commissioner’s
responsive pleading, and Plaintiff’s assignments of error. Review of the entire
record reveals that the decision of the ALJ is supported by substantial evidence.
See Richardson v. Perales, supra; Hays v. Sullivan, supra. Finding that there was
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, supra, Plaintiff’s Motion for Summary
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Judgment will be denied, the Commissioner’s Motion for Summary Judgment will
be granted, and the decision of the Commissioner will be affirmed.
ORDER
IT IS, THEREFORE, ORDERED that
(1)
the decision of the Commissioner, denying the relief sought by plaintiff,
is AFFIRMED;
(2)
the Plaintiff’s Motion for Summary Judgment is DENIED;
(3)
the Commissioner’s Motion for Summary Judgment is GRANTED;
and
(4)
this action is DISMISSED.
Signed: December 27, 2016
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