Bass v. Commissioner of Social Security Administration
OPINION AND ORDER adopting 32 Report and Recommendation. The decision of the Commissioner is AFFIRMED. Signed by Honorable Bruce Howe Hendricks on 3/30/2017.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Venisha Mary Bass,
) Civil Action No.: 8:15-cv-3659-BHH
OPINION AND ORDER
Nancy A. Berryhill, Commissioner of
Plaintiff Venisha Mary Bass (“Plaintiff”) brought this action pursuant to 42 U.S.C.
§ 1383(c)(3) to obtain judicial review of a final decision of Defendant, Commissioner of
Social Security (“Commissioner”), denying her claim for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act. In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Rules 73.02(B)(2)(a) and 83.VII.02, D.S.C., this matter was
referred to United States Magistrate Judge Jacquelyn D. Austin, for pretrial handling. On
October 31, 2016, the Magistrate Judge issued a Report and Recommendation
(“Report” or “R&R”) in which she determined that Plaintiff did not show that the
Commissioner’s decision was unsupported by substantial evidence or reached through
application of an incorrect legal standard. Accordingly, the Magistrate Judge
recommended affirming the Commissioner’s decision. (ECF No. 32.) Plaintiff filed
Objections on December 1, 2016. (ECF No. 35.) For the reasons stated below, the
Court adopts the Report and affirms the Commissioner’s decision.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
FACTUAL AND PROCEDURAL BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and
standards of law on this matter, and the Court incorporates them and summarizes
below in relevant part. Plaintiff was 40 years old on her alleged disability onset date and
has past relevant work experience in housekeeping, packaging and janitorial work. On
October 5, 2012, Plaintiff filed an application for DIB benefits, alleging a disability since
May 1, 2012, due to impairments of vocal cord blisters/hoars[e]ness, borderline
intellectual functioning, attention deficit hyperactive disorder (ADHD), and acid reflux. A
hearing was held before an Administrative Law Judge (“ALJ”) who issued an
unfavorable decision on June 13, 2014, finding Plaintiff was not disabled under the Act.
The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the
final decision of the Commissioner. Plaintiff subsequently filed an action in this Court on
September 11, 2015. (ECF No. 1.)
REPORT AND RECOMMENDATION
The Magistrate Judge recommends affirming the ALJ’s decision. 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 determination of those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge, or recommit the matter to him with
instructions. 28 U.S.C. § 636(b)(1). “However, the Court is not required to review, under
a de novo or any other standard, the factual or legal conclusions of the Magistrate
Judge as to those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court’s review of the Report thus
depends on whether or not objections have been filed, in either case the Court is free,
after review, to accept, reject, or modify any of the Magistrate Judge’s findings or
recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137,
138 (D.S.C. 1992) (internal citations omitted).
STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the
Social Security Act is a limited one. Under 42 U.S.C. § 405(g), the Court may only
review whether the Commissioner’s decision is supported by substantial evidence and
whether the correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive . . . .”); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980).
“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);
see, e.g., Daniel v. Gardner, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368
F.2d 640 (4th Cir. 1966); Tyler v. Weinberger, 409 F. Supp. 776 (E.D. Va. 1976). In
order for a reviewing court to determine whether the Commissioner based a decision on
substantial evidence, “the decision must include the reasons for the determination . . . .”
Green v. Chater, 64 F.3d 657, 1995 WL 478032, *2 (4th Cir. 1995) (citing Cook v.
Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)). The statutorily mandated standard
precludes a de novo review of the factual circumstances that substitutes the Court’s
findings for those of the Commissioner. See, e.g., Vitek v. Finch, 438 F.2d 1157 (4th
Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968). Accordingly, “the court
[must] uphold the [Commissioner’s] decision even should the court disagree with such
decision as long as it is supported by ‘substantial evidence.’” Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972). As noted by Judge Sobeloff in Flack v. Cohen, 413 F.2d
278 (4th Cir. 1969), “[f]rom 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
action.” Id. at 279. “[T]he courts must not abdicate their responsibility to give careful
scrutiny to the whole record to assure that there is a sound foundation for the
[Commissioner’s] findings, and that his conclusion is rational.” Vitek, 438 F.2d at 115758.
Plaintiff filed objections to the Report and Recommendation on December 1,
2016. (ECF No. 35.) She objects to the Magistrate Judge’s recommendation
concerning, inter alia, the Appeals Council’s decision to deny review of Plaintiff’s case
based on the new evidence Plaintiff submitted, and the ALJ’s failure to properly analyze
Plaintiff’s ability to perform past relevant work.
Very respectfully, these objections are the precise matter raised to the Magistrate
Judge and appropriately rejected in her thorough thirty-five page Report. (See R&R at
17–34); see also Hendrix v. Colvin, 2013 WL 2407126, at *4 (D.S.C. June 3, 2013);
Jackson v. Astrue, 2011 WL 1883026 (W.D.N.C. May 17, 2011); Aldrich v. Bock, 327 F.
Supp. 2d 743, 747 (E.D. Mich. 2004). Nevertheless, the Court employs de novo review
to consider Plaintiff’s specific arguments.2
Plaintiff first asserts that the Appeals Council erred in denying review of Plaintiff’s
case based on the new evidence she submitted. (ECF No. 35 at 6.) She asserts that the
submitted evidence indeed relates back to the requisite time period and that there is a
reasonable possibility this evidence would have changed the outcome. (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) (internal quotation marks and citation omitted). 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. “[P]ost-[ALJ
decision] medical evidence generally is admissible in an SSA disability determination in
such instances in which that evidence permits an inference of linkage with the
claimant’s pre-[ALJ decision] condition.” Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d
337, 341 (4th Cir. 2012) (citation omitted). Nonetheless, evidence should not be given
retrospective consideration where there is no support for the existence of impairments
or the severity alleged prior to the date of the ALJ’s decision. See Johnson v. Barnhart,
434 F.3d 650, 655–56 (4th Cir. 2005) (per curiam). When a claimant seeks to present
As always, the Court says only what is necessary to address such arguments against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific
reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.
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).
Plaintiff presented to the Appeals Council the following “new” evidence: 1) South
Carolina DMV records dated September 25, 2014 and March 12, 2015; 2) medical
records from Roper St. Francis dated August 21, 2014, September 25, 2014 to January
27, 2015, March 13, 2015, June 12, 2015, and July 2, 2015; 3) medical records from
MUSC dated October 15, 2014; and 4) medical records from Lowcountry Hematology
and Oncology dated January 14, 2015 and June 10, 2015. (Tr. 2.)
The Appeals Council concluded that the new information was about a later time
and thus did not impact the decision. (Tr. 2.) Accordingly, the Appeals Council denied
review. (Tr. 1.) The Magistrate Judge determined that the new information that Plaintiff
sought to introduce was not material because it does not relate to Plaintiff’s condition
prior to the ALJ’s decision and that, regardless, the new information would not have
changed the outcome. (ECF No. 32 at 33–34.) The Court agrees.
Plaintiff argues that the highlighted records relate back to the requisite time
period because they reflect the “continuation of treatment that Plaintiff received from Dr.
Robinson and Dr. Barron.” (ECF No. 35 at 5.) She further argues the records from Dr.
Rick Olson (“Dr. Olson”) at MUSC should have been considered because he was one of
her treating physicians and he opined that she would benefit from medical disability
With respect to Dr. David Robinson (“Dr. Robinson”), Plaintiff’s primary care
physician, the record before the ALJ included a statement he gave on January 3, 2014,
for purposes of an application for a disabled placard. (Tr. 454.) That statement indicated
that Plaintiff temporarily could not walk one hundred feet nonstop without aggravating
an existing medical condition, including the increase of pain. (Tr. 454.) In his decision,
the ALJ accorded this opinion “little weight” because “it specifically stated that it applied
to a period of less than 12 months.” (Tr. 95.) The “new” DMV records submitted to the
Appeals Council contain two additional applications for a disabled placard, both
completed by Dr. Robinson. These additional applications “certify” that Plaintiff
temporarily could not walk one hundred feet nonstop without aggravating an existing
medical condition. (Tr. 37, 70.)
Contrary to Plaintiff’s assertions, these DMV records do not require the Appeals
Council to review her case. First, there is no indication that the limitations indicated in
the “new” applications are based on the same impairments complained of by Plaintiff
during the requisite time period. There was a two month gap between when the January
2014 application lapsed and when a new one was applied for. Further, these records
actually bolster the ALJ’s findings that this is a temporary limitation. Each time Dr.
Robinson completed the application, he marked the walking limitation as “temporary,”
which the application defines as “at least for 4 months not to exceed 1 year.” (Tr. 37,
70.) As noted above, the ALJ accorded the January 2014 DMV record “little weight”
because “it specifically stated that it applied to a period of less than 12 months.” (Tr.
95.) In addition, as the Magistrate Judge correctly stated, Plaintiff did not claim to be
disabled due to inability to walk or stand. Thus, even if these records were found to
relate back, it does not appear they would have changed the outcome of the ALJ’s
As for Dr. Paul Barron, the “new” records from Lowcountry Hematology &
Country name him as a “referring physician.” (Tr. 57.) Plaintiff claims these records
show Plaintiff was having bilateral ankle pain and swelling, and further support Dr.
Robinson’s finding that her ability to walk was limited. (ECF No. 35 at 5.) The cited
record, dated January 14, 2015, states “Mrs. Bass returns today for a 3-month followup.
Since our last visit, her primary complaint is now bilateral knee as well as lower
extremity discomfort.” (Tr. 57 (emphasis added).) Under “impressions,” the doctor wrote
“worsening lower extremity aches and pains.” (Tr. 58 (emphasis added).) These notes
indicate that the symptoms reported by Plaintiff on January 14, 2015, reflected a
worsening of her condition. Because this record reflects evidence of worsening change
in Plaintiff’s condition, it is not related to the time period considered by the ALJ. See,
e.g., Booker v. Colvin, No. 1:13-CV-2033-TMC, 2014 WL 6816878, at *5 (D.S.C. Dec. 4,
2014) (noting new evidence submitted to the Appeals Council reflects “evidence of
worsening change” in the plaintiff and, therefore, such evidence “does not ‘permit[ ] an
inference of [any] linkage with’” his pre-ALJ decision condition (quoting Bird, 699 F.3d at
341)); Evans v. Colvin, No. 8:13-CV-01325-DCN, 2014 WL 4955173, at *28 (D.S.C.
Sept. 29, 2014) (“The evidence with respect to Plaintiff’s hip pain, at best, shows a
worsening of her condition after the ALJ’s decision and not a condition to that level of
severity at the time of the ALJ’s decision; thus, this new evidence is not material.”);
HALLEX I–3–3–6 (outlining internal SSA rules for consideration of new and material
evidence, and noting that “[e]vidence is not related to the period at issue when the
evidence shows: A worsening of the condition after the expiration of a DLI in a title II
disability insurance benefits claim.”).
Finally, as to Dr. Olson, the “new” MUSC medical records reflect that he opined
Plaintiff “is in need of and would benefit from medical disability assistance and appears
to meet criteria with multiple medical issues limiting her ability to sustain employment
and obtain adequate financial support. Documented genetic mutation associated with
mental retardation clearly is a significant nonreversible medical disability.” (Tr. 62.) This
opinion does not require review of Plaintiff’s case by the Appeals Council because it
would not have changed the outcome—Dr. Olson does not describe any functional
limitations on Plaintiff’s mental abilities that were caused by a genetic mutation. Further,
the ultimate decision on whether a claimant meets the statutory definition for disability is
an administrative decision that is always reserved to the Commissioner. See Morgan v.
Barnhart, 142 Fed. App’x. 716, 721–722 (4th Cir. 2005) (distinguishing between medical
opinions and legal conclusions by physicians that claimant is unable to work or
disabled, finding the latter are matters reserved to the Commissioner and are not
entitled to heightened evidentiary value); 20 C.F.R. §§ 404.1527(e) and 416.927(e).
Past Relevant Work
Plaintiff next argues that the ALJ erred in finding Plaintiff capable of performing
past relevant work. She first asserts here that the ALJ failed to properly analyze her
past “substantial gainful activity”; specifically, her last place of employment. (ECF No.
35 at 2.) Plaintiff claims that the ALJ failed to consider that Plaintiff’s last period of
employment was at a warehouse and only lasted for “two months in two different
positions.” (Id.) Without any supporting authority, Plaintiff claims that “the warehouse
position was not sufficient substantial gainful activity given that the majority of her past
employment was in the housekeeping/janitorial area.” (Id.) She states it is important to
note that “the ALJ’s decision focused on her past relevant work as a housekeeper and
not a warehouse worker.” (Id.) Plaintiff cites no authority for why this distinction is
“Past relevant work” is work that a claimant has done within the past fifteen
years, that was substantial gainful activity (“SGA”), and that lasted long enough for the
claimant to learn to do it. 20 C.F. R. § 404.1565(b)(1). SGA is defined as work activity,
even if such work is done on a part-time basis for less pay or with less responsibility
than previous work, that involves doing significant physical or mental activities. 20
C.F.R. § 404.1572. The work must be done for pay or profit, whether or not a profit is
realized. Id. If an individual has earnings from employment or self-employment above a
specific level set out in the regulations, he is generally presumed to be able to engage
in SGA. Id. §§ 404.1574–.1575.
Here, the Court finds no error in the ALJ’s focus on Plaintiff’s ability to perform
past relevant work as a housekeeper. In order to find that Plaintiff could perform past
relevant work, the ALJ did not need to find that Plaintiff could still perform every job she
ever held. See Wiggins v. Colvin, No. 1:12-CV-196, 2014 WL 184414, at *7 (W.D.N.C.
Jan. 15, 2014) (“The law is clear that a claimant will be found capable of performing
past relevant work, and not disabled, when the claimant can perform a past relevant job
as the job was actually performed by the claimant.”) (emphasis added); 20 C.F.R. §§
404.1560(b)(2), 404.1565(b)(1), 416.960(b)(2); SSR 82–61. The ALJ expressly
considered Plaintiff’s past relevant work “doing cleaning and janitorial work” and
correctly found that such work could be classified as that of a housekeeper according to
the vocational expert’s testimony. (Tr. 96.) The Court finds no error in this respect.
Plaintiff next argues that the ALJ erred in finding Plaintiff could perform past
relevant work as a housekeeper because he ALJ failed to consider certain responses
given by the vocational expert to hypothetical questions asked by Plaintiff’s counsel at
the ALJ hearing. (ECF No. 35 at 4.) Here, Plaintiff cites her testimony from the ALJ
hearing that her condition with her voice affected her ability to perform janitorial work
“because you have to be able to talk to the patients and some of the workers, like
nurses and stuff if something is wrong with the patient.” (Tr. 110.) Plaintiff’s counsel
later asked the vocational expert about how someone with Plaintiff’s voice condition
would function in a housekeeping position:
Q. So interaction with the public in housekeeping, would that, would that
be one where they would have to be able to speak and communicate?
A. On occasion, yes.
Q. Okay. And if one had difficulty doing that, then that would affect their
ability to complete the job?
A. In the housekeeper position it wouldn’t affect the ability to complete the
general task of a housekeeping job . . . but it would interfere with the
perception of being able to provide customer service if one of the room
residents had a question that the housekeeper would not be able to
In his decision, the ALJ found that Plaintiff “has remained able to communicate
despite her intermittent hoarseness.” (Tr. 95.) He accordingly accounted for Plaintiff’s
gastroesophageal reflux in his RFC finding by restricting her from work that involves
constant verbal communication. (Tr. 92.) The hypothetical given to the vocational expert
considered a situation with much less than “constant verbal communication.” Thus, the
vocational expert’s testimony that a housekeeper may need to speak and communicate
“on occasion” did not conflict with Plaintiff’s RFC. The testimony highlighted by Plaintiff
does not convince the Court that the ALJ’s finding as to Plaintiff’s ability to perform past
relevant work was not supported by substantial evidence.
To the extent Plaintiff asserts that the ALJ failed to properly weigh the highlighted
testimony from the vocational expert, Plaintiff is essentially asking the Court to reweigh
the evidence and come to its own conclusion. Such reweighing of the evidence is not
within the province of this court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005) (holding that a reviewing court should not undertake to reweigh conflicting
evidence, make credibility determinations, or substitute its judgment for that of the ALJ).
The remainder of Plaintiff’s arguments have been specifically considered de novo
by the Court and either (1) fail to allege how the outcome of the decision would have
been different; (2) lack record support; (3) are duplicative exactly of arguments already
raised and adequately addressed by the recommendation; or (4) rely on evidence that,
even where true, does not affect the view of the evidence, relied upon by the ALJ, as
substantial. The Court is satisfied that in all respects the ALJ’s findings are based on
The Court has carefully reviewed the record, including the findings of the ALJ
and Plaintiff’s objections to the Report and Recommendation. The Court concurs in the
recommendation of the Magistrate Judge that substantial evidence in the record
supports the decision of the Commissioner and thus adopts the Report and
Recommendation, incorporating it herein by reference to the extent it is consistent with
this order. The decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
s/Bruce Howe Hendricks
United States District Judge
March 30, 2017
Greenville, South Carolina
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