Bishop v. Commissioner of the Social Security Administration

Filing 47

OPINION AND ORDER declining to adopt 41 REPORT AND RECOMMENDATIONS and the Commissioner decision is affirmed. Signed by Honorable Timothy M Cain on 3/20/2012. (ydav, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
)
)
Richard Bishop,
)
)
Plaintiff, )
)
v.
)
)
Michael J. Astrue, Commissioner
)
of Social Security Administration,
)
)
Defendant.

C/A No. 1:10-2714-TMC

OPINION & ORDER

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of a
final decision of the Commissioner of Social Security ("Commissioner") denying his claims
for disability insurance benefits (“DIB”) under the Social Security Act (the "Act"). This matter
is before the court for review of the Magistrate Judge's Report and Recommendation
(“Report"), filed on February 8, 2012. (Dkt. # 41).1 For the reasons set forth below, the
court declines to adopt the Report.
Procedural Background
Plaintiff applied for DIB on March 22, 2007, with an alleged disability onset date of
May 28, 2002, due to back problems, high blood pressure, depression, and anxiety. His
application was denied initially and upon reconsideration. An Administrative Law Judge
("ALJ") conducted hearings on April 17, 2009, and October 23, 2009, and the ALJ denied
Plaintiff’s claim for DIB on January 29, 2010. On March 1, 2010, Plaintiff sought review of

1

The Magistrate Judge's review is made in accordance with 28 U.S .C. §
636(b)(1)(B) and Local Civil Rule 73.02.

his case by the Appeals Council and submitted a memorandum and additional medical
evidence. On August 27, 2010, the Appeals Council denied his request for review. Plaintiff
filed this action seeking review of the Commissioner's decision.
On February 8, 2012, the Magistrate Judge filed a Report recommending that the
Commissioner’s decision be reversed and the action remanded pursuant to sentence four
for further administrative action. (Dkt. # 41).2 The Commissioner timely filed objections (Dkt.
# 44) and Plaintiff filed a response to the Commissioner’s objections. (Dkt. # 45).
Accordingly, this matter is now ripe for review.
Standard of Review
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). Upon
careful review of the record, the district court may accept, reject, or modify the findings or
recommendations made by the magistrate judge. Camby, 718 F.2d at 200. A district court
“shall make a de novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also
Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). “By contrast, in the absence of a timely

2

On November 23, 2011, the Magistrate Judge to whom this matter was referred
filed a Report in which she recommended that the Commissioner's decision be reversed
and remanded for further administrative proceedings solely on the basis of the Appeals
Council’s failure to articulate a reason for denying review of newly submitted evidence.
(Dkt. # 31). The Commissioner timely filed objections and Plaintiff filed a response to
the Commissioner’s objections. In light of the Fourth Circuit’s holding in Meyer v. Astrue,
662 F.3d 700 (4th Cir. 2011), which was decided nine days after the first Report was
filed, the court declined to adopt the Report and recommitted the case to the Magistrate
Judge for further analysis. (Dkt. # 39).
2

filed objection, a district court need not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). De novo review is also not
required “when a party makes general or conclusory objections that do not direct the court
to a specific error in the magistrate judge's proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982) (citations omitted). Moreover, the
district court need not review issues that are beyond the subject of an objection. Thomas
v. Arn, 474 U.S. 140, 149 (1985); Camby, 718 F.2d at 200.
The role of the federal judiciary in the administrative scheme established by the
Social Security Act is a limited one. Section 405(g) of the Act provides, "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 . . . as
more than a scintilla, but less than a preponderance." Thomas v. Celebrezze, 331 F.2d
541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual
circumstances that substitutes the court's findings for those of the Commissioner. Vitek v.
Finch, 438 F.2d 1157 (4th Cir. 1971). Rather the court must uphold the Commissioner's
decision as long as it is supported by substantial evidence. Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972). "From this it 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
agency." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). "[T]he courts must not
abdicate their responsibility to give careful scrutiny to the whole record to assure that there
3

is a sound foundation for the [Commissioner's] findings, and that this conclusion is rational."
Vitek, 438 F. 2d at 1157-58.
DISCUSSION3
In his brief, Plaintiff alleges the ALJ erred in denying him benefits on the following
grounds: 1) a failure by the ALJ to properly evaluate the Plaintiff’s serious, continuing
problems documented by objective data which would prohibit work; 2) a failure by the ALJ
to evaluate testimony of a vocational witness; 3) failure by the ALJ to provide an adequate
credibility determination; 4) a failure by the ALJ in relying on contradictory VE testimony
which conflicted with the information in the DOT; and 5) a failure by the Appeals Council
to properly evaluate the new and material evidence. (Pl.’s Reply Mem. at 1).
The Magistrate Judge recommends a remand based solely for the consideration of
the new and material evidence which was presented to the Appeals Council, particularly
the November 6, 2009 report of orthopedist Dr. Kissenberth. (Report at 22).

The

Magistrate Judge recommends that the remaining allegations be dismissed. (Report at 27).
Defendant objects to a remand for the consideration of the new evidence. Although
Plaintiff filed a response to Defendant’s objections, he did not file any objections regarding
the Magistrate’s recommendation that the remaining allegations of error are without merit
and should be dismissed. (Report at 27-29). In the absence of any objections to the
Magistrate Judge's recommendations on these remaining issues, and satisfied that there
is no clear error in this regard, the court accepts the Magistrate Judge's recommendation.

3

In her Report, the Magistrate Judge sets forth the relevant facts and legal
standards which are incorporated here by reference.
4

Accordingly, the court will not address these issues.4
As to Dr. Kissenberth’s November 2009 opinion which was submitted to the Appeals
Council, the court declines to adopt the Magistrate Judge’s recommendation that this action
be remanded for consideration of this new evidence. Dr. Kissenberth’s November 2009
opinion is actually a form entitled “Medical Source Statement of Ability To Do Work-Related
Activities (Physical)” where Dr. Kissenberth checked boxes regarding Plaintiff’s limitations.
Although the instructions ask the assessor to identify the factors (i.e. the particular medical
signs laboratory findings, diagnosis, prescribed treatment, expected duration and
prognosis) which support the assessment of any limitations, Dr. Kissenberth only checked
boxes and his only notation stated “no lifting left shoulder.” He did not provide any support
of his assessment of any limitations.
Dr. Kissenberth completed the form on November 6, 2009, over ten months after the
date Plaintiff was last insured.5 Further, although the form was completed two weeks after
the hearing was held on October 23, 2009, and almost three months prior to the ALJ’s
decision on January 29, 2010, it was not submitted for consideration until Plaintiff sought
review by the Appeals Council in March 2010.

4

Furthermore, the court notes that although additional evidence was submitted to
the Appeals council, Plaintiff did not object to the Magistrate Judge’s decision to focus
only on Dr. Kissenberth’s November 2009 opinion. Accordingly, the court will not
address the additional evidence which was submitted to the Appeals Council.
5

The court notes that “[f]orm reports in which a physician's obligation is only to
check a box or fill in a blank are weak evidence at best.” See, e.g., Mason v. Shalala,
994 F.2d 1058, 1065 (3d Cir.1993). See also O'Leary v. Schweker, 710 F.2d 1334,
1341 (8th Cir.1993) (observing that checklist forms are entitled to little weight due to
lack of explanation).
5

In Meyer v. Astrue, the Fourth Circuit held that the Appeals Council is not required
to articulate its rationale for denying a request for review. 662 F.3d at 707. The Fourth
Circuit then stated when the Appeals Council receives additional evidence and denies
review, the issue for the court is whether the ALJ’s decision is supported by substantial
evidence. Id. Further, the court held that when the evidence is one-sided, the court may
be able to determine whether substantial evidence supports the ALJ’s decision. Id. In
Meyer, however, the court held it could not determine whether substantial evidence
supported the ALJ’s decision and thus remanded the case to the Commissioner for a
rehearing. Id.
Evidence submitted to the Appeals Council with a request for review must be
considered in deciding whether to grant review “ ‘if the additional evidence is (a) new, (b)
material, and (c) relates to the period on or before the date of the ALJ's decision.’” Wilkins
v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95–96 (4th Cir.1991) ( en banc )
(quoting Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir.1990)). Evidence is new “if it is
not duplicative or cumulative.” Id. at 96. “Evidence is material if there is a reasonable
possibility that the new evidence would have changed the outcome.” Id. When a claimant
seeks to present new evidence to the Appeals Council, he is not required to show good
cause for failing to present the evidence earlier. Id. at 96 n. 3; cf. 20 C.F.R. § 404.970(b).
Here, the Magistrate Judge’s recommendation to remand is based solely upon her
conclusion that Dr. Kissenberth’s November 2009 opinion is new, material, and relates to
the period at issue under 20 C.F.R. § 404.970(b). Specifically, the Magistrate Judge stated
that
[b]ased on its review of the record, including the additional opinion of Dr.
6

Kissenberth, and the ALJ’s decision, the court cannot recommend dismissal
of this issue on the ground that the 2009 opinion does not relate to the period
at issue. Here, in finding Plaintiff was not disabled, the ALJ discussed some
of Plaintiff’s 2009 visits to Dr. Kissenberth, as well as his activities just prior
to the April 2009 hearing. See Tr. at 18, 22. On these facts, the court cannot
recommend a finding that the November 2009 opinion could not be material
or new.
(Report at 24).
Even assuming arguendo that Dr. Kissenberth's post-decision opinion is “new”
evidence with the meaning of Wilkins, there is no reasonable possibility that this evidence
would have changed the ALJ's decision. This evidence on its face does not relate to the
period on or before the date the Plaintiff was last insured and, in fact, there is no indication
whatsoever that the opinion properly pertains to Plaintiff's limitations prior to that date.
Wilkins, 953 F.2d at 95.
For the purpose of securing DIB, medical opinions written after a claimant's date last
insured can be given weight if they relate back to the period when plaintiff was insured and
provide evidence of plaintiff's impairments at that time. Johnson v. Barnhart, 434 F.3d 650,
655–656 (4th Cir. 2005)(holding that the opinion of a treating physician rendered nine
months after the claimant's date last insured was irrelevant).

As nothing in Dr.

Kissenberth’s November 6, 2009 opinion addresses whether or not Plaintiff was disabled
during the relevant time period (i.e prior to the date last insured), this new evidence is not
material. See Edwards v. Astrue, 2008 WL 474128, at *9 (W.D.Va. February 20, 2008)
(“The [new records] do not relate back to the relevant time period as they were both done
over 6 months after the ALJ rendered his decision.”).
In his reply to Defendant’s objections, Plaintiff states “since that this case is for SSI
as well as DIB, the fact that [Dr. Kissenberth’s opinion] was rendered after [Plaintiff] was
7

no longer eligible for DIB is not relevant at all.” (Pl.’s Reply Mem. at 10-11). He argues
that he applied for both DIB and SSI, “so despite the expiration of DIB coverage in 2008,
[he] continued to be eligible for SSI, so the question is whether he was disabled as of the
date of the ALJ’s decision on 1/29/10.” (Pl.’s Reply Mem. at 2) (internal citations omitted).
It does appear Plaintiff applied for both DIB and SSI. However, the ALJ’s decision
addresses only DIB (R. 13-24) and Plaintiff has not raised any issue on appeal relating to
an SSI claim or the ALJ’s failure to address an SSI claim.6 Therefore, any issue relating
to Plaintiff’s SSI is not properly before the court, and the court will address only Plaintiff's
DIB claim and consequently only his condition between his alleged onset date of December
19, 2003, and December 31, 2008, the date Plaintiff was last insured.
The Court finds that Dr. Kissenberth's 2009 opinion is irrelevant as it was rendered
months after Plaintiff's date last insured and does not purport to cover the period during
which Plaintiff was eligible to receive DIB benefits. See, e.g., Szubak v. Secretary, 745 F.2d
831, 834 (3d Cir.1984) (“An implicit materiality requirement is that the new evidence relates
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.”).7 The court does not agree with the Magistrate Judge’s conclusion that the
ALJ’s discussion of evidence after the Plaintiff’s date of last insured precludes a finding that

6

Defendant states that it appears that Plaintiff withdrew his application for SSI.
(Def.’s Br. at 2 n. 2).
7

Moreover, as the Fourth Circuit has recognized medical source opinions
prepared after an ALJ's decision are less persuasive than opinions issued prior to the
his decision. Wagner v. Apfel, 1999 U.S.App. LEXIS 29887, * 10 (4th Cir.1999) (citing
Macri v. Chater, 93 F.3d 540 (9th Cir.1996).
8

Dr. Kissenberth’s November 2009 opinion was not material. The ALJ’s discussion of
evidence postdating the date Plaintiff was last insured does not alter the fact that Dr.
Kissenberth’s opinion is not retrospective in nature and simply does not relate to the time
period before the date last insured. If Plaintiff believes the ALJ erred in determining that
Plaintiff was not disabled by discussing evidence after the date Plaintiff was last insured,
Plaintiff could have raised that issue on appeal.8

Requiring the ALJ to consider Dr.

Kissenberth’s opinion simply because the ALJ discussed other evidence post-dating the
date Plaintiff was last insured would merely compound any error.
CONCLUSION
For the foregoing reasons, the court declines to adopt the Report and
Recommendation of the magistrate Judge and instead AFFIRMS the final decision of the
Commissioner.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
March 20, 2012
Greenville, South Carolina

8

The court expresses no opinion as to whether the ALJ erred in discussing
evidence which post-dated the date Plaintiff was last insured in this case.
9