Simpson v. Colvin
Filing
17
ORDER AFFIRMING DECISION OF COMMISSIONER. Signed by Judge J. Daniel Breen on 3/20/19. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JERALD GLENN SIMPSON,
Plaintiff,
v.
No. 1:16-cv-01221-JDB-jay
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
______________________________________________________________________________
ORDER AFFIRMING DECISION OF COMMISSIONER
______________________________________________________________________________
This appeal to the denial of disability benefits and supplemental security income (“SSI”)
under the Social Security Act, 42 U.S.C. §§ 401, et seq., was filed by Plaintiff, Jerald Glenn
Simpson, on August 4, 2016. (Docket Entry (“D.E.”) 1.) Simpson filed a brief in support of his
position, (D.E. 14), to which Defendant, the Commissioner of Social Security, filed a response,
(D.E. 14). The appeal is now appropriate for a decision.
PROCEDURAL HISTORY
Plaintiff initially filed for disability benefits and SSI on August 25, 2014, alleging disability
stemming from “retinal detachments and defects” and glaucoma beginning December 31, 2012.
(D.E. 12-4 at PageID 115, 118.) The Social Security Administration denied his claim on
November 24, 2014. (Id.) After his request for reconsideration was denied, (Id. at PageID 137–
38), Simpson brought his claim before an administrative law judge (“ALJ”), who also denied his
claim on March 21, 2016, (D.E. 12-3 at PageID 51). The Appeals Council (“AC”) denied
Plaintiff’s request for a review of the ALJ decision on June 23, 2016. (Id. at PageID 34.) The AC
1
rendered its unfavorable decision despite Simpson’s April 13, 2016 submission of the statement
of ophthalmologist, Dr. Hilary Grissom.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision
made by the Commissioner after a hearing to which he was a party. “The court shall have the
power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Id. The court's review is limited to determining whether there is substantial
evidence to support the Commissioner's decision, and whether the correct legal standards were
applied. Id.; Landsaw v Sec’y of Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986)
(citing Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524 (6th Cir. 1981)). “Substantial
evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2001) (quoting Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
The Court need not “agree with the
Commissioner's finding, as long as it is substantially supported in the record.” Id. (citing Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 389–90 (6th Cir. 1999)).
The Commissioner, not the court, is charged with the duty to weigh the evidence; to make
credibility determinations and resolve material conflicts in the testimony; and to decide the case
accordingly. Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990) (citing first Richardson v.
Perales, 402 U.S. 389, 390 (1971), then Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
When substantial evidence supports the Commissioner's determination, it is conclusive, even if
substantial evidence also supports the opposite conclusion. Id. (citing Mullen v. Bowen, 800 F.2d
2
535, 545 (6th Cir. 1986)). A reviewing court must defer to findings of fact by the Appeals Council
when those findings conflict with the factual findings of the ALJ. Mullen, 800 F.2d at 545.
THE COMMISSIONER’S DECISIONS
The Social Security Act defines disability as the “inability to engage in substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant bears the ultimate burden of
establishing an entitlement to benefits. Born v. Sec’y of Health and Human Servs., 923 F.2d 1168,
1173 (6th Cir. 1990). The initial burden of going forward is on the claimant to show that he is
disabled from engaging in his former employment; the burden then shifts to the Commissioner to
demonstrate the existence of available employment compatible with the claimant's disability and
background. Id.
The Commissioner conducts the following, five-step analysis to determine if an individual
is disabled within the meaning of the Act:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or mental
impairment—i.e., an impairment that significantly limits his or her physical or
mental ability to do basic work activities—the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the listings
in Appendix 1 to Subpart P of the regulations and meets the duration requirement,
the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.
Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)–(iv), 404.1520 (b)–(g)). Further review is not necessary if it is determined that
an individual is not disabled at any point in this sequential analysis. Id. § 404.1520(a).
3
In Plaintiff’s case, the ALJ determined that: (1) he met the insured status requirements of
the Act through March 31, 2016; (2) he had not engaged in substantial gainful activity since his
disability onset date; (3) he had glaucoma and retinal detachment of the left eye, however, he did
not have an impairment or combination of impairments that medically equaled the severity of one
of those listed in the regulations; (4) he was unable to perform past relevant work, but he could
perform other work as defined in the regulations; and, therefore, (5) he was not disabled and could
find jobs performing such light work. (D.E. 12-3 at PageID 56–61.) Thus, the ALJ found that
Simpson was not disabled at steps three and five of the sequential evaluation process.
The ALJ specifically determined that Plaintiff could perform “a full range of work at all
exertional levels.” (Id. at PageID 57.) However, his impairments prevented him from performing
employment that required driving and using depth perception; climbing and being exposed to
unprotected heights; and moving machinery. (Id.) In arriving at this conclusion, the ALJ accorded
great weight to the examination of Dr. Grissom, Simpson’s treating ophthalmologist, who issued
her report on April 23, 2015. (Id. at PageID 59.) Dr. Grissom opined that the claimant was capable
of avoiding ordinary hazards in the workplace”; that he “was able to view computer screens [and]
read newspapers and books but not very fine print”; and that his depth perception in his left eye
was poor. (Id.) However, she further indicated that Plaintiff only suffered a “mild loss of
peripheral vision” in his right eye. (Id.)
After the ALJ issued her ruling, Dr. Grissom wrote Simpson’s counsel a letter further
detailing his vision issues. (Id. at PageID 41.) In it, she explained that, while Plaintiff did not
suffer from legal blindness, his vision was adversely affected in other ways that were not reflected
in the original report she had provided. (Id.) Simpson had nearsightedness in his right eye and,
because of the severity of the condition, he was only able to see straight ahead when looking
4
through his glasses. (Id.) However, because he was unable to afford new glasses, the pair he used
were yellowed and scratched, which limited his vision in his functional eye. (Id.)
Plaintiff submitted Dr. Grissom’s letter to the AC as part of his appeal. (Id. at PageID 35.)
Although the AC read the letter, it declined to consider its content for the purposes of Simpson’s
original claim, because the information in the letter was “new” and “about a later time.” (Id.) The
AC advised Plaintiff that if he desired to have the doctor’s letter considered, he would need to file
a new claim. (Id.)
ANALYSIS
The only issue presented to this Court for review is the whether the AC failed to properly
consider and evaluate Dr. Grissom’s April 13, 2016 letter under applicable regulations. (D.E. 14
at PageID 583.) When new evidence is presented to the AC that was not before the ALJ for
consideration, the AC “shall consider the additional evidence only where it relates to the period on
or before the date of the [ALJ] hearing decision.” 20 C.F.R. § 404.970 (2016). 1 Generally, if such
evidence is considered by the AC but it declines to review the application on the merits, the district
court is not to consider the evidence part of the record. Foster v. Halter, 279 F.3d 348, 357 (6th
Cir. 2001) (citing Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996)). However,
sentence six of 42 U.S.C. § 405(g) provides:
The court . . . may at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding; and the Commissioner of Social
Security shall, after the case is remanded, and after hearing such additional
evidence if so ordered, modify or affirm the Commissioner's findings of fact or the
Commissioner's decision, or both . . . .
1
The wording of this regulation has changed; however, because the decisions of the
Commissioner were made before this change, the Court has referenced its former language.
5
See also Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 724–25 (6th Cir. 2012) (explaining
the process of a remand under sentence six of § 405(g)).
“[E]vidence is new only if it was ‘not in existence or available to the claimant at the time
of the administrative proceeding.’” Foster, 279 F.3d at 257 (quoting Sullivan v. Finkelstein, 496
U.S. 617, 626 (1990)). “Such evidence is ‘material’ only if there is ‘a reasonable probability that
the Secretary would have reached a different disposition of the disability claim if presented with
the new evidence.’” Id. (quoting Sizemore v. Sec'y of Health and Human Servs., 865 F.2d 709,
711 (6th Cir.1988)). “In order to prove ‘good cause,’ a Claimant must ‘demonstrat[e] a reasonable
justification for the failure to acquire and present the evidence for inclusion in the hearing before
the ALJ.’” Courter, 479 F. App’x at 725 (quoting Foster, 279 F.3d at 357). Compared to other
circuits, the Sixth Circuit “has taken a harder line on the good cause test.” Oliver v. Sec’y of Health
and Human Servs., 804 F.2d 964, 966 (6th Cir. 1986). In fact, this requirement “is the simplest
reason why the standard for remand is not met.” Bass v. McMahon, 499 F.3d 506, 513 (6th Cir.
2007).
The facts of Courtrer are similar to those in this case. In Courtrer, the ALJ rejected the
claimant's allegation that she was mentally disabled; the claimant then ordered two additional
mental evaluations and submitted them to the district court. 479 Fed.Appx. at 718. The district
court refused to consider the new evidence and the claimant appealed. Id. The Sixth Circuit held
that the claimant did not show good cause for failing to present this evidence to the ALJ:
Presumably, Claimant is arguing that she could not anticipate that the ALJ would
find that she did not qualify as mentally disabled and therefore that she would need
to bolster her case with additional evidence. Claimant's argument is frivolous and
fails to provide a reasoned explanation for or detail the obstacles that hindered her
from seeking the evaluations sooner. A party should always anticipate that a
decision maker might rule against it. A belief that one would not “lose” given the
evidence admitted cannot meet the “good cause” standard for failing to obtain or
submit all useful evidence in the first instance.
6
Id. at 725–26 (citations omitted).
Similarly, in this case, Simpson argues only that the letter is “new” and “was not available
to Counsel prior to the administrative hearing.” (D.E. 14 at PageID 594.) That the letter was
“new” does not answer the question, however; Plaintiff must provide a reasonable justification as
to why the doctor’s opinions contained therein were not presented to the ALJ. Simpson offers
only the explanation that “Counsel did attempt to contact Dr. Grissom prior to the hearing” but
that he was nonetheless “unable to speak with her until” afterwards. (Id.) Considering the doctor
was Plaintiff’s treating ophthalmologist, he presumably could have elicited the opinions contained
in the letter well before the ALJ’s hearing but simply failed to do so. Because Plaintiff has not
furnished good cause as to why Dr. Grissom’s letter was not provided to the ALJ for earlier
consideration, his request that this Court remand the case under sentence six of § 405(g) is
DENIED. 2
CONCLUSION
In light of the foregoing, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED this 20th of March 2019.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
2
Although Defendant argued that the ALJ did have substantial evidence for her decision,
(D.E. 15 at PageID 605–10), Simpson did not challenge that determination, and the Court sees no
reason to disturb it. Cf. Schmiedebusch v. Comm’r of Soc. Sec., 536 F. App’x 637, 649–50 (6th
Cir. 2013) (declining to consider an issue on appeal not raised at the district court level).
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?