TYUS v. COLVIN

Filing 15

OPINION and ORDER denying 9 Motion for Summary Judgment; denying 12 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 2/13/18. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHARDA SHAQUAY TYUS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-43

AMBROSE, Senior District Judge

OPINION
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 9 and
12). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 10 and 13). After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
I am denying Plaintiff’s Motion for Summary Judgment (ECF No. 9) and granting Defendant’s
Motion for Summary Judgment. (ECF No. 12).
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security denying her application for supplemental security income pursuant to the Social
Security Act. Plaintiff filed her application in November of 2010, alleging she had been disabled
since January 20, 2005. (ECF No. 7-5, p. 2). Administrative Law Judge (“ALJ”), William E.
Kenworthy, held a hearing on August 14, 2014 and on April 9, 2015. (ECF No. 7-2, pp. 48-63).
Plaintiff was unrepresented at the August 14, 2014 hearing and given an opportunity to obtain

1Nancy

A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

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counsel. Id. Plaintiff appeared at the April 9, 2015 hearing without counsel again and the ALJ
proceeded with the hearing. Id. On April 13, 2015, the ALJ found that Plaintiff was not disabled
under the Act. (ECF No. 7-2, pp. 36-43).
On July 23, 2015, Plaintiff filed a request for review of the ALJ’s decision with the Appeals
Council. (ECF No. 7-2, p. 31). On July 22, 2015, Plaintiff accepted the appointment of counsel.
(ECF No. 7-2, p. 30). On September 12, 2015, the Appeals Council granted Plaintiff an extension
of time to file additional evidence, specifically indicating that “[a]ny more evidence must be new
and material to the issue considered in the hearing decision dated April 13, 2015.” (ECF No. 72, p. 22)(emphasis in original). On October 2, 2015, Plaintiff filed medical evidence from a
licensed clinical psychologist, Lindsey Groves, Psy.D., dated September 29, 2015. (ECF No. 72, pp. 8-21). In denying Plaintiff’s request for review on December 7, 2015, the Appeals Council
stated, inter alia, “[w]e also looked at the fifteen page Cognitive Evaluation, Physician’s Report
and Mental Impairment Questionnaire from Lindsey Groves, Psy.D, dated September 29, 2015.
The Administrative Law Judge decided your case through April 13, 2015. This new information
is about a later time. Therefore, it does not affect the decision about whether you were disabled
beginning on or before April 13, 2015.” (ECF No. 7-2, p. 3).
Thereafter, filed the instant action with this court. The parties have filed Cross-Motions
for Summary Judgment. (Docket Nos. 9 and 12). The issues are now ripe for review.
II. LEGAL ANALYSIS
A. Standard of Review
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d

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900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Additionally,
the Commissioner’s findings of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. §405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court
cannot conduct a de novo review of the Commissioner’s decision or re-weigh the evidence of
record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of
fact are supported by substantial evidence, a court is bound by those findings, even if the court
would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999). To determine whether a finding is supported by substantial evidence, however, the district
court must review the record as a whole. See, 5 U.S.C. §706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant.

20 C.F.R. §404.1520(a).

The ALJ must

determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy, in light of his age, education, work experience and residual functional capacity.
20 C.F.R. §404.1520.

The claimant carries the initial burden of demonstrating by medical

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evidence that he is unable to return to his previous employment (steps 1-4). Dobrowolsky, 606
F.2d at 406. Once the claimant meets this burden, the burden of proof shifts to the Commissioner
to show that the claimant can engage in alternative substantial gainful activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the decision
with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
B.

Post Decision Evidence

Plaintiff appears to argue, although not directly, that remand is warranted pursuant to
Sentence Six of 42 U.S.C. §405(g) so that the decision can be reconsidered along with evidence
first submitted to the Appeals Council. (ECF No. 10, p. 8). If a plaintiff proffers evidence that
was not previously presented to the ALJ, then a district court may remand pursuant to Sentence
Six of 42 U.S.C. §405(g), but only when the evidence is new and material and supported by a
demonstration of good cause for not having submitted the evidence before the decision of the
ALJ. Matthews v. Apfel, 239 F.3d 589, 591-593 (3d Cir. 2001) (Sentence Six review), citing,
Szubak v. Sec'y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). All three requirements must be
satisfied to justify remand. Id., citing Szubak, 745 F.2d at 833.
In Szubak v. Secretary of Health and Human Services, the Third Circuit explained the
following:
As amended in 1980, §405(g) now requires that to support a "new evidence"
remand, the evidence must first be "new" and not merely cumulative of what is
already in the record. Second, the evidence must be "material;" it must be
relevant and probative. Beyond that, the materiality standard requires that there
be a reasonable possibility that the new evidence would have changed the
outcome of the Secretary's determination. An implicit materiality requirement is
that the new evidence relate to the time period for which benefits were denied, and
that it not concern evidence of a later-acquired disability or of the subsequent
deterioration of the previously non-disabling condition. Finally the claimant must
demonstrate good cause for not having incorporated the new evidence into the
administrative record.

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745 F.2d 831, 833 (3d Cir. 1984) (citations omitted)(emphasis added).
In this case, Plaintiff submitted to the Appeals Council, for the first time, a cognitive
evaluation, physician’s report and mental impairment questionnaire dated September 29, 2015.
(ECF No. 10, p. 7). As set forth above, “[a]n implicit materiality requirement is that the new
evidence relate to the time period for which benefits were denied….” Szubak, supra, citing Ward
v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982). Simply because a document is about a plaintiff’s
physical/mental condition does not mean it relates to the time period for which benefits were
denied. In this case, the evidence submitted to the Appeals Council was dated September 29,
2015 and ALJ’s opinion was dated April 13, 2015. (ECF No. 7-2, pp. 36-43; No. 7-2, pp. 8-21).
Plaintiff does not dispute that. (ECF No. 10). The ALJ’s decision was dated February 21, 2014.
(ECF No. 7-2, p. 43). Therefore, the newly submitted evidence post-dates the ALJ’s decision by
over five months. It does not relate back to the period before the ALJ’s decision. Based on the
same, I find that the evidence does not relate to the time period for which benefits were denied.
Plaintiff does not discuss the three requirements for remand based on Sentence Six, but
seems to suggest because she was pro se at the time of the hearing that somehow that gives her
good cause to submit the post decision evidence. (ECF No. 10, p. 8). To be clear, it is irrelevant
whether Plaintiff has good cause because he has failed to meet the material requirement. All
three requirements must be satisfied to justify remand. Therefore, I find that the new evidence
submitted for the first time to the Appeals Council does not provide a basis for remand.
C.

Duty to Develop

Additionally, Plaintiff seems to suggest that the ALJ erred in failing to sufficiently develop
the record, although it is unclear what information Plaintiff believes that ALJ should have obtained.
(ECF No. 10, p. 8). An ALJ has the duty to fully develop the record to make a determination of
disability. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). This duty is heightened when a

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plaintiff is pro se. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). In this case, the
ALJ ordered two consultative examinations and Plaintiff failed to appear for the same. (ECF No.
7-2, p. 41). An ALJ may find a claimant disabled if a claimant does “take part in a consultative
examination or test which” the ALJ arranges for the claimant. 20 C.F.R. §416.918(a). After a
review of the record, I find that the ALJ made sufficient and appropriate attempts to fully developed
the record. Thus, I find no error in this regard.
D.

Step 3

In step three of the analysis set forth above, the ALJ must determine if the claimant’s
impairment meets or is equal to one of the impairments listed in 20 C.F.R., Pt. 404, Subpt. P,
Appx. 1. Jesurum v. v. Secretary of Health and Human Services, 48 F.3d 114, 117 (3d Cir.
1995). An applicant is per se disabled if the impairment is equivalent to a listed impairment and,
thus, no further analysis is necessary. Burnett v. Commissioner, 220 F.3d 112, 119 (3d Cir.
2000).
1.

Listings 11.02, 11.03, 11.04, 11.18 and 12.02

Plaintiff argues that the ALJ erred in failing to consider whether Plaintiff’s vasovagal
syncope meets or medically equals Listing 11.02, 11.03, 11.04, 11.18 and 12.02. (ECF No. 10, p.
8).

At the time of the hearing, Plaintiff was pro se and did not raise or identify any Listings. To

be clear, it is not the burden of the Plaintiff to identify the applicable listings to consider, but rather
the burden of the ALJ.

Burnett v. Commissioner of Soc. Sec., 220 F.3d, 112, 120, n.2 (3d Cir.

2000). “Putting the responsibility on the ALJ to identify the relevant listed impairment(s) is
consistent with the nature of Social Security disability proceeding…. Such reasoning is further
supported by the fact ‘that a large portion of Social Security [disability benefits] claimants either
have no representation at all or are represented by non-attorneys.’”

Id. (internal citations

omitted). While an ALJ need not specifically identify or analyze the most relevant medical listing,

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the ALJ must clearly evaluate the available medical evidence of record and setting forth the
evaluation in an opinion. Jones v. Barnhart, 364 F.3d 501 (3d Cir. 2004). With that said,
however, Plaintiff (who is now represented by counsel) provides little in support for her argument
that Listings 11.02, 11.03, 11.04, 11.18 and 12.02 are implicated and that the ALJ should have
considered them. See, ECF No. 10, p. 8. She does not set forth the elements necessary to
meet said Listings nor does she suggest how she meets any of the elements required by said
Listings. Id. Without more, I find this argument to be wholly underdeveloped and completely
inadequate. Therefore, I find no merit to this argument and remand is not warranted on this basis.
2.

Listings 12.05C

Plaintiff also argues that the ALJ erred in failing to consider whether Plaintiff’s vasovagal
syncope meets or medically equals Listing 12.05C because she had a verbal comprehension
score of 70. (ECF No. 10, p. 9). Listing 12.05 – Intellectual Disability provides, in relevant part:
Intellectual disability refers to significantly subaverage general intellectual function
with deficits in adaptive functioning initially manifested during developmental
period; i.e., the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
.

.

.

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation or function;
20 C.F.R. pt. 404, subpt. P., app. 1 §12.05(C). Plaintiff does not cite to the record where it is
noted that she achieved a verbal score of 70. (ECF No. 10, p. 9). After a review of the record,
I find that it comes from the newly submitted evidence produced for the first time to the Appeals
Council. (ECF No. 7-2, pp. 9-10). Thus, this evidence was not before the ALJ for consideration
and, therefore, cannot serve as a basis for remand as set forth above.

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E.

Residual Functional Capacity (RFC)2 and Vocational Experts (“VE”)

Plaintiff concludes with one three-sentence paragraph indicating that the ALJ’s RFC was
not based on substantial evidence because he should have given more consideration to Plaintiff’s
vasovagal syncope episodes, her decreased cognitive impairments and “because the ALJ did not
submit all of the Plaintiff’s functional limitations to the vocational expert for her consideration.”
(ECF No. 10, p. 9). Contrary to Plaintiff’s conclusion otherwise, a review of the record reveals
that the ALJ appropriately considered all of Plaintiff’s impairments based on the evidence before
him.

(ECF No. 7-2, pp. 36-43).

In so doing, the ALJ found Plaintiff could perform light work

except that she is limited to “tasks of a simple, repetitive nature that would not require dealing
with the general public, working around hazardous operations or unprotected heights.” (ECF No.
7-2, p. 40).
Thereafter, the ALJ submitted questions to the VE. An ALJ is required to accept only that
testimony from the vocational expert which accurately reflects a plaintiff’s impairments. See,
Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984); Chrupcala v. Heckler, 829 F.2d 1269, 1276
(3d Cir. 1987). Based on my review of the record, there is substantial evidence that the ALJ’s
hypothetical questions accurately reflected Plaintiff’s impairments. (ECF No. 7-2, pp. 36-43).
Therefore, I find no error in this regard. Consequently, remand is not warranted.
An appropriate order shall follow.

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RFC refers to the most a claimant can still do despite his/her limitations. 20 C.F.R. §§ 404.1545(a),
416.945(a). The assessment must be based upon all of the relevant evidence, including the medical
records, medical source opinions, and the individual’s subjective allegations and description of his/her
own limitations. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Additionally, a person’s RFC is an
administrative finding reserved for the ALJ, not a medical opinion to be rendered by a doctor. 20 C.F.R.
§' 404.1527, 416.927; 20 C.F.R. §§404.1546(c), 416.946(c). Here, the ALJ found the Plaintiff has an
RFC to perform light work with certain limitations. (ECF No. 7-2, p. 40).

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHARDA SHAQUAY TYUS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
-vsNANCY A. BERRYHILL,3
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-43

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 13th day of February, 2018, it is ordered that Plaintiff’s Motion for
Summary Judgment (ECF No. 9) is denied and Defendant’s Motion for Summary Judgment (ECF
No. 12) is granted.

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

3Nancy

A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

9