Meyer v. Commissioner of the Social Security Administration

Filing 31

ORDER RULING ON REPORT AND RECOMMENDATIONS for 23 Report and Recommendations; the Commissioner's final decision denying benefits is affirmed. Signed by Honorable Joseph F Anderson, Jr on March 25, 2010. (cwil, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION M a u ric e E. Meyer, III, P l a in tif f , vs. M ic h a el J. Astrue, Commissioner of S o c ia l Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) ) C /A No.: 3:08-3828-JFA-JRM

ORDER

T h is matter is before the court for review of the Magistrate Judge's Report and R e c o m m e n d a tio n ("Report") made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local R u le 83.VII.02. The Magistrate Judge makes only a recommendation to this court. The re c o m m e n d a tio n has no presumptive weight, and the responsibility to make a final d e te rm in a tio n remains with the court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The c o u rt is charged with making a de novo determination of those portions of the Report to w h ich specific objection is made, and the court may accept, reject, or modify, in whole or in p a r t , the Report of the Magistrate Judge, or recommit the matter to him with instructions. 2 8 U.S.C. § 636(b)(1). T h e plaintiff, Maurice E. Meyer III, ("Meyer") brings this action pursuant to Section 2 0 5 (g ) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review o f a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for disability insurance benefits ("DIB").

I.

P roc ed u ral History M e ye r filed his claim for DIB on July 13, 2005, alleging that he became disabled on

D e c em b e r 11, 2004, as the result of a fall he suffered while bow-hunting from a tree stand o n February 11, 2004. The fall caused injuries including three fractured vertebrae, a f ra c tu re d wrist, and an injured left shoulder. His claim was denied initially and on

re c o n sid e ra tio n . The Administrative Law Judge ("ALJ") held a hearing on April 10, 2008, a n d issued a decision unfavorable to Meyer on June 5, 2008. While the ALJ found that M e ye r has degenerative disc disease and a history of left wrist injury, the ALJ determined th a t Meyer has not been under a disability as defined in the Social Security Act from D e c em b e r 11, 2004 until the June 5, 2008 date of the ALJ's decision. M e ye r thereafter filed a request for review with the Appeals Council of the Social S e c u rity Administration's Office of Disability Adjudication and Review. Meyer submitted a d d itio n a l materials to the Appeals Council including the medical opinion of Byron Bailey, M .D ., and medical literature concerning spinal impairment. By order dated October 24, 2 0 0 8 , the Appeals Council admitted the additional materials into the administrative record. A ls o on October 24, 2008, the Appeals Council denied Meyer's request for review, making th e June 5, 2008 decision by the ALJ the final decision of the Commissioner. Meyer then f ile d this action with the court pursuant to 42 U.S.C. § 405(g), seeking judicial review of the C o m m is s io n e r's final decision. T h e Magistrate Judge to whom this matter was referred filed a comprehensive Report o n January 28, 2010. The Magistrate Judge recommended that the Commissioner's decision 2

b e affirmed. The parties were advised of their right to file specific written objections to the R e p o rt. Meyer exercised his right, filing three specific objections to which the

C o m m is s io n e r has responded. II. S ta n d a rd of Review T h e role of the federal judiciary in the administrative scheme established by the Social S ec u rity Act is a limited one. The Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), lim its this Court's review of a final decision of the Commissioner to (1) whether substantial e v id e n c e supports the Commissioner's findings and (2) whether the findings were reached thro u g h application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1 9 9 6 ). Substantial evidence is "such relevant evidence as a reasonable mind might accept a s adequate to support a conclusion," Richardson v. Perales, 402 U.S. 389, 401 (1971) (in te rn a l citation omitted); it is "more than a scintilla, but less than a preponderance." T h o m a s v. Celebrezze, 331 F. 2d 541, 543 (4th Cir. 1964). This standard precludes a de n o v o review of the factual circumstances that substitutes the court's findings for those of the C o m m iss io n e r. Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971). "[T]he court [must] u p h o ld the [Commissioner's] decision even should the court disagree with such decision as lo n g as it is supported by `substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (internal citation omitted). H o w e v e r, the findings of the administrative agency are not to be mechanically a c ce p te d . Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). "The statutorily granted right o f review contemplates more than an uncritical rubber stamping of the administrative 3

a c tio n ." Id. "[T]he courts must not abdicate their responsibility to give careful scrutiny to th e whole record to assure that there is a sound foundation for the [Commissioner's] findings, a n d that his conclusion is rational." Vitek, 438 F.2d at 1157-58. III. D is c u ss io n A n individual is disabled if she is unable "to engage in any substantial gainful activity b y reason of any medically determinable physical or mental impairment which can be e x p e cte d to result in death or has lasted or can be expected to last for a continuous period of n o t less than twelve months." 42 U.S.C. § 416(i)(1); § 1382c(a)(3)(A). To determine w h e th e r a claimant meets this classification, the court must inquire of the following: w h e th e r (1) the claimant is engaged in substantial gainful activity; (2) the claim an t has a medical impairment (or combination of impairments) that are s e v e re ; (3) the claimant's medical impairment meets or exceeds the severity of o n e of the impairments listed in Appendix I of 20 C.F.R. Part 404, subpart P; (4 ) the claimant can perform her past relevant work; and (5) the claimant can p e rf o rm other specified types of work. Jo h n so n v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). T h e ALJ found, and the parties agree, that Meyer has satisfied steps one through four. The A L J decided the claim at the fifth step, finding that Meyer could perform other specified typ e s of work. A. T h e ALJ's Findings

O n June 5, 2008, the ALJ made the following findings of fact: (1 ) M e ye r meets the insured requirements of the Social Security Act through D e c em b e r 31, 2009. M e ye r has not engaged in substantial gainful activity since December 11, 4

(2 )

2 0 0 4 , the alleged onset date (20 C.F.R. §§ 404.1520(b) and 404.1571 et seq.). (3 ) M e ye r has the following severe imperilments: degenerative disc disease and a history of left wrist injury (20 C.F.R. § 404.1520(c)). M e ye r does not have an impairment or combination of impairments that meets o r medically equals one of the listed impairments in 20 C.F.R. Part 404, S u b p art P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). A f te r careful consideration of the entire record, the ALJ found that Meyer has t h e residual functional capacity to perform the full range of light work as d ef in ed in 20 C.F.R. § 404.1567(b). M eyer is unable to perform any past relevant work (20 C.F.R. § 404.1565). M e ye r was born on September 22, 1953 and was 51 years old, which is d e f in e d as an individual closely approaching advanced age, on the alleged d isab ility onset date (20 C.F.R. § 404.1563). M e ye r has limited education and is able to communicate in English (20 C.F.R. § 404.1564). T ra n sf e ra b ility of job skills is not material to the determination of disability b e c au s e applying the Medical-Vocational Rules directly supports a finding of " n o t disabled," whether or not Meyer has transferable job skills (See SSR 824 1 and 20 C.F.R. Part 404, Subpart P, Appendix 2). C o n s id e rin g Meyer's age, education, work experience, and residual functional c a p ac ity, there are jobs that exist in significant number in the national ec o n o m y that Meyer can perform (20 C.F.R. § 404.1560(c) and § 404.1566). M e ye r has not been under a disability, as defined in the Social Security Act, f ro m December 11, 2004, through the date of the ALJ's decision (20 C.F.R. § 404.1520(g)).

(4)

(5 )

(6) (7 )

(8 )

(9 )

(1 0 )

(1 1 )

M eyer challenges the ALJ's decision and argues that he was improperly denied DIB a s a result of the ALJ's failure to: (1) A c c e p t the opinion of Dr. Weissglass;

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(2 )

P ro p e rly assess the impact of frequent medical treatment on Meyer's ability to perform substantial gainful employment for eighteen months after onset; Obtain a vocational expert to assess significant non-exertional impairments; and F in d that depression was not a severe impairment.

(3)

(4 )

M e ye r also argues that the Appeals Council committed reversible error by failing to: (1 ) Make specific findings of fact concerning the weight it gave to allegedly new a n d material evidence from Dr. Bailey, which was submitted at the Appeals C o u n c il level; and G iv e Dr. Bailey's opinion controlling or greatest weight. T h e Report

(2 ) B.

T h e Magistrate Judge's Report found that substantial evidence supported the ALJ's d e te rm in a tio n that Meyer was not disabled during the relevant time period and that the ALJ a p p lie d the correct legal standards. The Report also concluded that the Appeals Council need n o t have given weight to the opinion of Dr. Bailey or the other additional materials because s u c h information was neither new nor material. The Magistrate Judge, therefore,

re c o m m e n d s that the Commissioner's decision be affirmed. C. M eyer's Objections to the Report

M e ye r appears to make three objections to the Magistrate Judge's Report. Each o b je c tio n shall be addressed in turn. 1. M e ye r Asserts that the Frequency of His Medical Treatment Would H a v e Compelled a Level of Absenteeism Inconsistent with Obtaining E m p lo ym e n t that Exists in Significant Numbers in the National E co n o m y

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M e ye r contends that the Magistrate Judge relied on incorrect regulations in finding th a t substantial evidence supports the ALJ's determination that Meyer retains sufficient re sid u a l functional capability to perform work that exists in significant quantity in the n atio n al economy. The ALJ found that Meyer is unable to perform any past relevant work a n d that he would be limited to unskilled work in the future in light the impact of pain on his c o n c e n tra tio n . However, the ALJ also found that Meyer's residual functioning capacity a llo w e d a full range of light work, considering Meyer's age, education, and work experience. T h e Magistrate Judge relied on 20 C.F.R. § 404.1510 in coming to the conclusion that M e ye r's frequent medical treatment did not prevent him from performing significant and p ro d u c tiv e physical or mental duties. The court finds that Meyer's objection to the Magistrate Judge's reliance on 20 C.F.R. § 404.1510 has some merit. Meyer's claim for EIB was denied at the fifth level of the fives te p sequential evaluation set forth in the Social Security regulations. 20 C.F.R. § 404.1520. T h e first step, which is not at issue, concerns SGA as defined at 20 C.F.R. § 404.1510, and a c ts as a bar to a classification as disabled if the claimant performed any SGA during the re le v a n t time period. The fifth step of the sequential evaluation, and the step at which M e ye r's claim was denied, provides that the ALJ must consider the claimant's residual f u n c tio n a l capacity, age, education, and work experience to determine whether the claimant c a n make the adjustment to other work. Meyer's argument appears to be that because of his in v o lv e d medical treatment regimen he could not make the adjustment and should be d e t e rm in e d disabled on that basis. 7

H o w e v e r, several visits to the doctor and an involved physical therapy schedule does n o t automatically operate to preclude work eight hours per day, five days per week, or an e q u iv a le n t work schedule. The record lacks evidence to show that medical treatment alone w o u ld have prevented Meyer from working forty hours per week. Simply asserting that n u m e ro u s medical appointments exist is different from showing that they would have p re v e n te d Meyer from working forty hours per week. Here, the ALJ found that Meyer had th e residual functional capacity to perform the full range of light work and was free from n o n e x e rtio n a l impairments. (Tr. 14.) Accordingly, it was proper for the ALJ to rely on the M e d ic a l Vocational Guidelines and the ALJ was not required to obtain expert vocational te s tim o n y. See Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989). 2. M e ye r Asserts that the Appeals Council Must Give Reasons for R e je c tin g Dr. Bailey's Opinion

M e ye r objects to the Magistrate Judge's Report finding no error with the Appeals C o u n c il's treatment of Dr. Bailey's opinion. Meyer's two central contentions in support of h is second objection are that (1) published Fourth Circuit precedent compels the court to re m a n d the case where the appeals council fails to explain the impact of new medical e v id e n c e; and (2) that the Magistrate's determination of whether the evidence was new or m a te ria l was not properly before the court. i. P ro p rie ty of Court Review of "New and Material"

A s an initial matter, the court will take up whether the court may determine whether th e evidence submitted to the Appeals Council was new and material. Several courts to have

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c o n sid e re d whether evidence is new, material, and related to the relevant time period have f o u n d such a determination to be a question of law to be reviewed de novo. See Box v. S h a la la , 52 F.3d 168 (8th Cir. 1995), Keeton v. Dep't of Health & Human Servs., 21 F.3d 1 0 6 4 , 1066 (11th Cir. 1994). See also Miller v. Barnhart, 64 Fed. Appx. 858, 859­60 (4 th C ir. 2003) (unpublished) (discussing the showing a claimant must make to a reviewing court to prove evidence is both new and material). The court finds the reasoning in these cases p e rs u a s iv e and finds that such a legal determination is appropriate for the court. Meyer contends that the Appeals Council's decision to accept the opinion of Dr. B a ile y into the record, rather than return it to Meyer, constitutes an implicit finding that the o p in io n is both new and material and that, pursuant to 42 U.S.C. § 405(h), the finding should b e taken as established in the record and afforded res judicata effect. Turning to 20 C.F.R. § 404.976(b)(1), the court notes that the regulation only provides for the return of additional ev iden ce to the claimant where additional evidence "does not relate to the period on or before th e date of the [ALJ] hearing decision." Accordingly, the Appeal Council's determination n o t to return the additional evidence may only be taken to mean that the Appeals Council f o u n d that the additional evidence related to the relevant time period. The court finds that th e Appeals Council's action does not compel the inference desired by Meyer and that such a n inference is not supported by the relevant statutes or regulations. ii. Is the Additional Evidence New and Material?

T h e Appeals Council's review is limited to evidence in the record unless the claimant s u b m its "new and material evidence" which "relates to the period on or before the date of the 9

[ A L J 's ] decision." 20 C.F.R. § 404.970(b). Evidence is new "if it is not duplicative or cu m u lative . " See Wilkins v. Sec'y of Dep't of Health & Human Servs. , 953 F.2d 93, 96 (4 th C ir. 1991). "Evidence is material if there is a reasonable possibility that the new evidence w o u ld have changed the outcome." Id. The Magistrate Judge found that Dr. Bailey's letter to the Appeals Council duplicates th e findings of Dr. Weissglass, whose report was before the ALJ and discussed extensively. O n that basis, the Magistrate Judge found Dr. Bailey's letter was both duplicative and cu m u lative . The court has reviewed the record and also finds that the content of Dr. Bailey's o p in io n duplicates that of Dr. Weissglass. That, taken together with Dr. Bailey's statement th a t he is "in agreement with the majority" of Dr. Weissglass' findings, leads the court to the c o n c lu s io n that Dr. Bailey's opinion does not provide new information. Because information m u st be new, material, and related to the relevant time period to be considered, the court f in d s that the Appeals Council could have properly disregarded the opinion of Dr. Bailey. Where evidence is not new, and perhaps even when it is, the Appeals Council is not req u ired to articulate its reason for failing to consider such evidence. See Hollar v. Comm'r o f Soc. Sec., 194 F.3d 1304 (4th Cir. 1999) (unpublished) (explicitly disclaiming any claim th a t the Appeals Council must articulate its own assessment of the additional evidence); but se e Harmon v. Apfel, 103 F. Supp. 2d 869, 873 (D.S.C. 2000) (finding that Appeals C o u n cil's failure to make specific findings is reversible error where evidence is new). B e c a u s e the additional evidence is not new, the court declines to assess its materiality. A cc o rdin g ly, the court overrules Meyer's objection regarding the Appeals Council's 10

tre a tm e n t of Dr. Bailey's opinion. 3. M e ye r Asserts that the ALJ Should Not Have Rejected Dr. Weissglass' O p in io n

M eyer objects to the Report's finding that the ALJ properly minimized Dr. W e is s g la ss ' opinion. The ALJ found that Dr. Weissglass' opinion contradicted much of the ev iden ce in the record and that his opinion appeared to based primarily on Meyer's su b jectiv e complaints of pain, rather than objective evidence in the record. The court in itia lly notes that consultative medical opinions are not entitled to deference in the same m a n n e r as a treating physician's opinion. See 20 C.F.R. § 404.1527. This is because nontre a tin g physicians "have no examining or treating relationship with [the claimant]." The d e g re e of weight afforded their opinions necessarily "depend[s] on the degree to which they p ro v id e supporting explanations for their opinions." Morgan v. Barhart, 142 Fed. Appx. 716, 7 2 7 (citing 20 C.F.R. § 404.1527). The more consistent an opinion is with the record as a w h o le, the move weight it deserves, and vice-versa. Id. (citing 20 C.F.R. § 404.1527(d)(4)). T h e court finds that substantial evidence supports the ALJ's decision to minimize Dr. W e is s g la ss ' opinion. The record reveals few objective bases for Dr. Weissglass' opinion, w h ile the ALJ cites to voluminous Medical University of South Carolina and Rehabilitation C e n te r of Charleston treatment notes and reports that indicate no work or recreation lim ita tio n s and an ability to ambulate and exercise independently. Meyer's testimony at the A L J hearing also conflicts with notes from his treatment providers and Dr. Weissglass' o p inion ; specifically Dr. Weissglass' testimony that Meyer could not sit or stand for more

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th a n thirty minutes at a time (Tr. 198.) when Meyer testified that he regularly drove fifty-five m inu tes to a feed store and sometimes drove for as long as ninety minutes without rest (Tr. 5 8 1 ­ 8 2 ) . Such statements bring the conflict in the record into sharp focus, as does a c o m p a r is o n between the opinions non-treating physicians. (Report 12.) Accordingly, the c o u rt finds that the record contains evidence that conflicts with Dr. Weissglass' opinion, a llo w i n g the ALJ to minimize it, and that the ALJ did not err in exercising his prerogative as the fact-finder and weigher of evidence to minimize Dr. Weissglass' opinion. Meyer's o b je c tio n to the ALJ's treatment of Dr. Weissglass' opinion is hereby overruled. IV . C o n c lu s io n A f te r a thorough and careful review of the record, including the findings of the ALJ, the briefs from Meyer and the Commissioner, the Magistrate Judge's Report, and Meyer's o b jec tio n s thereto, the court finds the Magistrate Judge's Report provides an accurate su m m a ry of the facts in the instance case. The court adopts the Report insofar as it is c o n sis te n t with the foregoing and incorporates it herein by reference. For the reasons set out h e r e in a b o v e and in the Report, the Commissioner's final decision denying benefits is a f f irm e d . The court again notes the limited nature of its inquiry. Whether the court would h a v e come to the same conclusion as the ALJ is of no moment at this stage of the p ro c e ed in g s ; the court's inquiry is limited to whether the ALJ's decision is supported by s u b s ta n t ia l evidence and in accordance with the law. The court finds that it is.

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IT IS SO ORDERED.

M arc h 25, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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