Hickman v. Commissioner of Social Security

Filing 22

ORDER RULING ON REPORT AND RECOMMENDATION adopting 19 Report and Recommendation, reversing the decision of the Commissioner and remanding the case pursuant to 42 U.S.C. 405(g) for further action. Signed by Honorable Richard M. Gergel on 02/07/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Charles Henry Hickman,

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)

Plaintiff,

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Civil Action No. 0: 12-3300-RMG

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vs.

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)

Carolyn W. Colvin, Acting Commissioner
of Social Security,
Defendant.

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)
)
)

ORDER

Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of
the final decision of the Commissioner of Social Security denying his claim for Disability
Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). In accord with 28
U.S.C. § 636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States
Magistrate Judge for pre-trial handling. The Magistrate Judge issued a Report and
Recommendation on January 21,2014, recommending that the Court reverse the decision of the
Commissioner. (Dkt. No. 19). The Commissioner has advised the Court she does not intend to
file objections to the Report and Recommendation. (Dkt. No. 21). As more fully set forth
below, the Court reverses the decision of the Commissioner and remands for further action
consistent with this order.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo

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detennination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modifY, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. The Act provides that the "findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C.

§ 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but
less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This
standard precludes de novo review of the factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. Vitek v. Finch, 438 F .2d 1157 (4th Cir. 1971).
Although the federal court's review role is a limited one, Hit does not follow, however,
that the findings of the administrative agency are to be mechanically accepted. The statutorily
granted right of review contemplates more than an uncritical rubber stamping of the
administrative action." Flack v. Cohen, 413 F .2d 278, 279 (4th Cir. 1969). Further, the
Commissioner's findings of fact are not binding if they were based upon the application of an
improper legal standard. Coffman v. Bowen, 829 F.2d 514,519 (4th Cir. 1987).

Discussion
Plaintiff has a long history of spinal abnonnalities and chronic back pain and has
undergone both a cervical spine and lumbar spine fusion. The Administrative Law Judge
(HALl") found that Plaintiff had not engaged in substantial gainful activity since his alleged onset
date of May 26,2009, and that his severe impainnents included cervical spine degenerative disc
disease, lumbar spine disorder, and pain disorder. Tr. 13. The ALJ further found Plaintiff did
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not satisfY any Listing at Step 3 and retained the Residual Functional Capacity for light work at
Step Four. Tr. 13-19. In reaching the finding that Plaintiff retained the capacity for light work,
the ALJ specifically referenced a statement in a July 27,2010 note from Plaintiffs treating pain
management specialist, Dr. Jeffrey Cooper, that he had "been approved for light work" and the
findings of a non-treating and non-examining medical record reviewer, Dr. Richard Weymouth,
that Plaintiff was capable of the lifting, sitting, and walking/standing requirements of light work.
Tr. 18,539,591. Based upon this record evidence, the ALJ found that Plaintiff was capable of
lifting ten pounds frequently and twenty pounds occasionally and could stand or walk six hours
in an eight-hour workday. Tr. 14.
Following the ALJ's decision of November 22,2010, Plaintiff submitted to the Appeals
Council new medical records and opinions which conflicted with the report of Dr. Weymouth
and the findings of the ALJ about Plaintiffs capacity to lift and stand. This included a letter
dated December 22, 2010, prepared by Dr. Cooper, the treating pain management specialist,
stating that Plaintiff was unable to "do any lifting" and could not engage in "prolonged sitting or
standing" because of chronic pain. Tr.637. Thereafter, Dr. Cooper completed a questionnaire
dated May 23,2011, in which he stated that Plaintiff could lift less than ten pounds and was
unable to stand more than two hours in an eight-hour workday. Tr.637-38. Dr. Cooper also
submitted a second letter, dated October 31, 2011, in which he stated that because of Plaintiffs
back abnormalities and chronic pain he was "unable to tolerate prolonged standing" and could
"ambulate only short distances with the use of a single-point cane." Tr. 642.
The Appeals Council accepted these newly submitted medical records and made them
part of the administrative record. In denying Plaintiff's request for review, the Appeals Council

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noted that it had received and "considered" additional medical records but found "this
information does not provide a basis for changing the Administrative Law Judge's decision." Tr.
1-2, 4. The Appeals Council did not weigh the newly provided evidence or make any effort to
reconcile it with supporting and conflicting evidence in the record.
A claimant in a Social Security proceeding is permitted to submit new and material
evidence after the administrative hearing to the Appeals Council and that evidence is made part
of the administrative record. 20 C.F.R. § 404.970(b). The Appeals Council is required to review
the new and material evidence so long as it "relates to the period on or before the date of the
administrative law judge hearing decision." Id. Although Social Security regulations do not
require the Appeals Council to make any findings regarding the newly submitted evidence, the
Fourth Circuit in Meyer v. Astrue, 662 F.3d 700, 706-07 (4th Cir. 2011), concluded that
substantial evidence review by a district court is not possible in the absence of findings by the
fact finder on the newly submitted evidence where the evidence is not "one sided" and the newly
submitted evidence conflicts with other evidence credited by the Commissioner. In such a
situation, the district court must reverse and remand to allow the fact finder to weigh the new and
material evidence and to reconcile it with the conflicting and supporting evidence in the record.

Id. The Fourth Circuit noted that "[a]ssessing the probative value of competing evidence is
quintessentially the role of the fact finder. We cannot undertake it in the first instance." Id.
The medical records submitted to the Appeals Council, particularly the two letters and the
questionnaire prepared by Dr. Cooper, were new and material and conflicted with other evidence
credited by the ALJ. Remand is necessary under Meyer for the fact finder to weigh this new
evidence and to reconcile it with the supporting and conflicting evidence in the record. It is
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noteworthy that Dr. Cooper is a treating physician and a specialist and his statement about the
Plaintiff being approved for light work was heavily relied upon by the ALJ to support the finding
that Plaintiff was capable of performing light work. I

Conclusion
Based on the foregoing, the Court hereby reverses the decision of the Commissioner,
pursuant to 42 U.S.C. § 405(g), and remands the matter to the Commissioner for further action
consistent with this order.
AND IT IS SO ORDERED.

February -1-,2014
Charleston, South Carolina

Although the newly submitted evidence was prepared subsequent to the ALJ's decision,
these records address Plaintiffs spinal condition that existed during the time period relevant to
this claim. It is, therefore, entirely appropriate for the ALJ to consider retrospectively the
findings and opinions set forth in these newly submitted records. Bird v. Comm 'r ofSoc. Sec.,
699 F.3d 340-41 (4th Cir. 2012).
I

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