Fallaw v. Commissioner of Social Security Administration

Filing 41

ORDER rejecting 32 Report and Recommendation, and remanding to Commissioner pursuant to sentence four of 42 U.S.C. section 405(g). Signed by Honorable J Michelle Childs on 03/30/2018.(mibr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Norma Maynard Fallaw,

)
)
)
v.
)
)
Nancy A. Berryhill,
)
Acting Commissioner of Social Security
)
Administration, 1
)
)
Defendant.
)
____________________________________)
Plaintiff,

Civil Action No.: 6:16-cv-02623-JMC
ORDER AND OPINION

This matter is before the court upon review of the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 32), recommending that the Commissioner’s Decision be
affirmed. For the reasons stated below, the court REJECTS the Magistrate Judge’s Report (ECF
No. 32).
I.

FACTUAL AND PROCEDURAL BACKGROUND

The court concludes upon its own careful review of the record that the factual and
procedural summation in the Report (ECF No. 32) is accurate, and the court adopts this summary
as its own. The court will only recite herein procedures pertinent to the court’s review of the
Report (ECF No. 32). On November 9, 2017, Magistrate Judge Kevin F. McDonald filed the
Report (ECF No. 32), and on November 27, 2017, Plaintiff timely filed an Objection (ECF No.
35). On December 5, 2017, the Commissioner replied. (ECF No. 37.)
II.

JURISDICTION

The court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g) which gives the

1

Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn
Colvin as the named defendant because she became the Acting Commissioner of Social Security
on January 23, 2017.
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court jurisdiction over a review of a final decision of the Commissioner of Social Security.
III.

LEGAL STANDARD

The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02(B)(2)(a) for the District of South Carolina. The Magistrate Judge makes
only a recommendation to this court, which has no presumptive weight. The responsibility to
make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made. Fed. R. Civ. P. 72(b)(2)-(3). Additionally, pursuant to Fed.
R. Civ. P. 72(b)(3), “[t]he [court] may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.”
“Although this court may review parts of the Magistrate Judge’s [Report] de novo, judicial
review of the Commissioner’s final decision regarding disability benefits ‘is limited to determining
whether the findings are supported by substantial evidence and whether the correct law was
applied.’” Sherby v. Astrue, 767 F. Supp. 2d 592, 594 (D.S.C. 2010) (citing Walls v. Barnhart,
296 F.3d 287, 290 (4th Cir. 2002)). “[I]t is not within the province of a reviewing court to
determine the weight of the evidence, nor is it the court’s function to substitute its judgment for
that of the Secretary if h[er] decision is supported by substantial evidence.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Pursuant to 42 U.S.C. 405(g), the court may affirm, modify, or
reverse the Commissioner’s decision, with or without remanding the cause for a rehearing.
IV.

ANALYSIS

After the ALJ’s determination that Plaintiff was not disabled, Plaintiff provided the
Appeals Council with additional records including Ms. Powell’s opinions regarding Plaintiff’s

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back pain, knee arthritis, hypertension, and hyperlipidemia. 2 (Tr. 453-455). Ms. Powell was a
nurse practitioner who had been Plaintiff’s family provider since 2005. (Tr. 454.) The Appeals
Council considered Ms. Powell’s opinions along with other evidence, and found that the additional
evidence “did not provide a basis for changing the ALJ’s decision.” (Id. (citing Tr. 5).)
Plaintiff specifically objects to the Magistrate Judge’s determination that “. . . the ALJ’s
decision is supported by substantial evidence and was reached through the application of the
correct legal standard.” (ECF No. 35 at 1); (see also ECF No. 32 at 19.) Plaintiff asserts that the
“Magistrate Judge failed to properly apply the law of this Circuit [as to the obligations of the
Appeals Council to provide an adequate explanation for rejecting the opinion of Ms. Powell].”
(ECF No. 35 at 1.)
Pursuant to Meyer v. Astrue, “[ ] if upon consideration of all of the evidence, including any
new and material evidence, the Appeals Council finds the ALJ’s action, findings, or conclusions
not contrary to the weight of the evidence, the Appeals Council can simply deny the request for
review.” 662 F.3d 700, 705 (4th Cir. 2011) “[N]othing in the Social Security Act or regulations
promulgated pursuant to it requires that the Appeals Council explain its rationale for denying
review.” Id.
Plaintiff asserts that the Appeals Council had to provide some explanation for the rejection
of Ms. Powell’s opinion under SSR 96-8p, 1996 WL 374184 (July 2, 1996) (ECF No. 35 at 2.),
however, this assertion is incorrect. In reference to medical opinions, SSR 96-8p states that “[t]he
RFC assessment must always consider and address medical source opinions. If the RFC
assessment conflicts with an opinion from a medical source, the adjudicator must explain why the

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Plaintiff only objects to the Appeals Council’s handling of Ms. Powell’s evidence. (ECF No. 32
at 15 n.2.)
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opinion was not adopted.” 1996 WL 374184, at *7 (July 2, 1996). The Appeals Council stated
that it considered the additional evidence presented and found that the ALJ’s determination was
not contrary to the evidence, therefore, it did not have to state the reason it denied review.
Accordingly, the court finds that the Appeals Council did not err in not explaining its
determination.
Although the Appeals Council did not err, the court must still determine if the ALJ’s
determination is supported by substantial evidence. See Meyer, 662 F.3d at 707; Turner v. Colvin,
No. 0:14-CV-00228-DCN, 2015 WL 751522, at *5 (D.S.C. Feb. 23, 2015) (the court must
determine whether the evidence of record before the ALJ, combined with the new evidence
“provides an adequate explanation of the Commissioner’s Decision.”) (citing Meyer, 662 F.3d at
707). However, just because Plaintiff introduced new evidence to the Appeals Council does not
mean that remand is automatic. 3
The ALJ noted that “[t]he record does not contain any opinion evidence from the claimant’s
medical providers.” (Tr. 37). The lack of any evidence from any treating physician is similar to
the Fourth Circuit’s remand of the claimant’s case in Meyer, where “[t]he ALJ emphasized that
the record before it lacked ‘restrictions placed on the claimant by a treating physician,’ suggesting
that this evidentiary gap played a role in its decision.” 662 F.3d at 707. Ms. Powell was a medical

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See also Spencer v. Comm'r of Soc. Sec. Admin., No. CV 1:16-1735-JMC-SVH, 2017 WL
1379605, at *11 (D.S.C. Jan. 31, 2017), report and recommendation adopted sub nom. Spencer v.
Berryhill, No. 1:16-CV-01735-JMC, 2017 WL 1364116 (D.S.C. Apr. 14, 2017) (“[T]he
undersigned notes that the Fourth Circuit did not specify in Meyer that remand would be
appropriate in all cases where a treating physician's opinion was first submitted to the Appeals
Council. Furthermore, it makes little sense to create an incentive for claimants to avoid submitting
treating physicians' opinions to the ALJ by allowing for blanket remand where such opinions are
submitted first to the Appeals Council.”); Laura Wilson, Plaintiff, v. Nancy A. Berryhill, Acting
Comm'r of Soc. Sec. Admin., Defendant., No. 6:16-3353-BHH, 2018 WL 1417525, at *5 (D.S.C.
Mar. 21, 2018) (“The Court [ ] agrees with the Magistrate Judge that Meyer is distinguishable and
that the additional evidence submitted by Plaintiff does not by itself require remand.”).
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provider for Plaintiff, however, she is a nurse practitioner and at the time of filing she was not
considered an acceptable medical source. 20 C.F.R. § 416.902(a)(7). Medical opinions are
“statements from acceptable medical sources,” 20 C.F.R. § 416.927(a)(1), and no matter the source
medical opinions must be reviewed. Id. at § 416.927(c); see also SSR 96-8p, 1996 WL 374184.
However, the court finds that Ms. Powell’s opinion fills the evidentiary gap mentioned by
the ALJ. Ms. Powell is not considered an “acceptable medical source,” but her opinion can still
be considered and weighed. 20 C.F.R. § 416.927(f)(1)-(2). In weighing Ms. Powell’s opinion,
“[t]he adjudicator generally should explain the weight given to opinions from [medical sources
who are not acceptable medical sources] or otherwise ensure that the discussion of the evidence in
the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.” Ms. Powell’s
evidence may have an effect on the outcome of the case, but it is not the court’s role to weigh the
evidence. See Hays, 907 F.2d at 1456. The court’s role is to only ensure that the ALJ’s
determination is supported by substantial evidence and that the correct law is used, Sherby, 767 F.
Supp. at 594. Because this new evidence fills an evidentiary gap explicitly noted by the ALJ, and
because it is not the role of the court to weigh evidence, the court must remand this case.
V.

CONCLUSION

For the reasons stated above, the court REJECTS the Report (ECF No. 32), and the
Commissioner’s Decision is REVERSED pursuant to 42 U.S.C. § 405(g) and REMANDED for
further proceedings in accordance with this Order.
IT IS SO ORDERED.

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United States District Judge
March 30, 2018
Columbia, South Carolina

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