Cameron v. Astrue
Filing
24
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 7/21/11. (tob)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MARY AMANDA CAMERON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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) Civil Action No. 7:10cv00058
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MEMORANDUM OPINION
Plaintiff Mary Amanda Cameron (“Cameron”) brought this action for review of the
Commissioner of Social Security’s (“Commissioner”) decision denying her claim for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social Security
Act (the “Act”). Cameron argues on appeal that the Administrative Law Judge (“ALJ”) erred by
failing to evaluate an opinion by Dr. Trevar Chapmon regarding her residual functional capacity,
and failing to properly evaluate her complaints of pain. In the alternative, Cameron argues that
the court should remand her case on the grounds of new evidence submitted pursuant to sentence
six of 42 U.S.C. § 405(g). Having reviewed the administrative record and considered the
arguments of counsel, the court concludes that the ALJ’s decision is supported by substantial
evidence. Accordingly, the Commissioner’s decision is AFFIRMED, the Commissioner’s
Motion for Summary Judgment (Dkt. #19) is GRANTED, and Cameron’s Motion for Summary
Judgment (Dkt. #17) is DENIED.
I
Section 405(g) of Title 42 of the United States Code authorizes judicial review of the
Social Security Commissioner’s denial of social security benefits. Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001). “Under the Social Security Act, [a reviewing court] must uphold the
factual findings of the [ALJ] if they are supported by substantial evidence and were reached
through application of the correct, legal standard.” Id. (alteration in original) (quoting Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996)). “Although we review the [Commissioner’s] factual
findings only to establish that they are supported by substantial evidence, we also must assure
that [his] ultimate conclusions are legally correct.” Myers v. Califano, 611 F.2d 980, 982 (4th
Cir. 1980).
The court may neither undertake a de novo review of the Commissioner’s decision nor
re-weigh the evidence of record. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). Judicial
review of disability cases is limited to determining whether substantial evidence supports the
Commissioner’s conclusion that the plaintiff failed to satisfy the Act’s entitlement conditions.
See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Evidence is substantial when,
considering the record as a whole, it might be deemed adequate to support a conclusion by a
reasonable mind, Richardson v. Perales, 402 U.S. 389, 401 (1971), or when it would be sufficient
to refuse a directed verdict in a jury trial. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
Substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood,
487 U.S. 552, 565 (1988), but is more than a mere scintilla and somewhat less than a
preponderance. Perales, 402 U.S. at 401. If the Commissioner’s decision is supported by
substantial evidence, it must be affirmed. 42 U.S.C. § 405(g); Perales, 402 U.S. at 401.
2
“Disability” is the “inability to engage in any 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 “[d]etermination of eligibility for social security
benefits involves a five-step inquiry.” Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002).
This inquiry asks whether the claimant: (1) is working; (2) has a severe impairment; (3) has an
impairment that meets or equals the requirements of a listed impairment; (4) can return to his or
her past relevant work; and if not, (5) whether he or she can perform other work. Heckler v.
Campbell, 461 U.S. 458, 460-462 (1983); Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir.
2005) (citing 20 C.F.R. § 404.1520). If the Commissioner conclusively finds the claimant
“disabled” or “not disabled” at any point in the five-step process, he does not proceed to the next
step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Once the claimant has established a prima
facie case for disability, the burden then shifts to the Commissioner to establish that the claimant
maintains the residual functional capacity (“RFC”),1 considering the claimant’s age, education,
work experience, and impairments, to perform alternative work that exists in the local and
national economies. 42 U.S.C. § 423(d)(2)(A); Taylor v. Weinberger, 512 F.2d 664, 666 (4th
Cir. 1975).
1
RFC is a measurement of the most a claimant can do despite his or her limitations. See 20 C.F.R. §§ 404.1545(a),
416.945(a). According to the Social Security Administration:
RFC is an assessment of an individual’s ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis’
means 8 hours a day, for 5 days a week, or an equivalent work schedule.
Social Security Regulation (SSR) 96-8p. RFC is to be determined by the ALJ only after considering all relevant
evidence of a claimant’s impairments and any related symptoms (e.g., pain). See 20 C.F.R. §§ 404.1529(a),
416.929(a).
3
II
Cameron was born in 1974 and at the time of the ALJ’s decision was a “younger
individual” under the Act. 20 C.F.R. §§ 404.1563, 416.963. She graduated from college with a
Bachelor of Science in nursing. (Administrative Record, hereinafter “R” at 33.) At the time of
the hearing, she lived with her two children, ages two and fifteen. (R. 45, 50.) She previously
worked as a charge nurse at Duke University and at VA Medical Center, a unit secretary at
Lewis Gale Hospital, and in home health care. (R. 33-36.) Cameron filed an application for
benefits on October 26, 2007, claiming disability as of October 15, 2007 based on “epilepsy,
right upper arm, depression, brain tumor, amnesia, short term memory loss, migraines.” (R. 158,
162.) The Commissioner denied her application for benefits on December 26, 2007 and this
decision was confirmed on reconsideration on June 20, 2008. (R. 63, 73.) An administrative
hearing was held on August 11, 2009 before an ALJ. (R. 28-58.)
In a decision issued September 16, 2009, the ALJ found that Cameron had severe
impairments consisting of seizure disorder, history of headaches, fibromyalgia, history of right
rhomboid tear, various arthralgia, asthma and obesity.2 (R. 17.) Considering these impairments,
the ALJ found that Cameron has retained the RFC to perform medium work, except that due to
her impairments she must avoid polluted environments, respiratory irritants, extreme temperature
changes, hazardous machinery, and should not work at unprotected heights, climb ladders, ropes
or scaffolds or work on vibrating surfaces. (R. 20.) Based on this RFC, the ALJ determined that
Cameron can perform her past relevant work in nursing. (R. 25.) Additionally, the ALJ also
found that there are jobs that exist in significant numbers in the national economy that Cameron
2
The ALJ found that all other impairments found in the record are either non-severe or not medically
determinable, as they have been responsive to treatment, cause no more than minimally vocationally relevant
limitations, and/or have not been properly diagnosed, including plaintiff’s claims regarding a pituitary tumor, mild
carpal tunnel syndrome, spasmodic torticollis, sleep apnea, depression and/or anxiety, (R. 17-18.)
4
can perform, given the vocational expert’s testimony that there are jobs Cameron can perform at
the light exertional level, both skilled and unskilled. (R. 26.) Accordingly, the ALJ concluded
that Cameron is not disabled under the Act. (R. 27.) The Appeals Council denied Cameron’s
request for review and this appeal followed. (R. 1-3.) Cameron and the Commissioner filed
respective motions for summary judgment and the court heard oral argument on March 3, 2011.
III
Cameron argues on appeal that the ALJ failed to consider an opinion by Dr. Trevar
Chapmon regarding her functional capacity and improperly discounted her complaints of pain.
Following the conclusion of the hearing on August 11, 2009, the ALJ left the record open until
August 26, 2009 to permit Cameron additional time to submit an opinion letter from Dr.
Chapmon regarding her RFC. (R. 15, 31.) Cameron states that, although she timely submitted
the stated letter, the ALJ failed to consider it, in violation of 20 C.F.R. §§ 404.1527(b),
416.927(b). The ALJ denied Cameron’s request to re-open her claim and consider Dr.
Chapmon’s letter.
Pursuant to 20 C.F.R. §§ 404.1527(d), 416.927(d), an ALJ is required to analyze every
medical opinion received and determine the weight to give to such an opinion in making a
disability determination. However, "[p]rocedural perfection in administrative proceedings is not
required” and courts should not vacate a judgment unless the substantial rights of a party have
been affected. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Thus, remand is
appropriate only when substantial evidence to support the ALJ's decision does not exist. Camp v.
Massanari, 22 F. App’x 311 (4th Cir. 2001) (errors are harmless in Social Security cases when it
is inconceivable that a different administrative conclusion would have been reached absent the
error (citing Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000)); Fisher v. Bowen, 869 F.2d
5
1055, 1057 (7th Cir. 1989) (“No principle of administrative law or common sense requires us to
remand a case in quest of a perfect opinion unless there is reason to believe that the remand
might lead to a different result.”); Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988).
Cameron’s arguments concerning the ALJ’s consideration of the opinions of Dr.
Chapmon do not warrant reversal or remand of the ALJ’s decision.3 In fact, the ALJ’s
determination that Cameron was not disabled is consistent with Dr. Chapmon’s opinion that “it is
very reasonable for [Cameron] to find gainful employment…and I would expect that she would
likely be able to function in most environments that do not require heavy lifting.” (R. 11.) To
the extent that Dr. Chapmon imposes more severe restrictions on Cameron, even if the ALJ had
adopted these restrictions, it would not change her ultimate determination that Cameron is not
disabled. Dr. Chapmon opines in his letter that Cameron could lift 20 pounds occasionally, 10
pounds frequently, and should avoid continuous overhead activity with the right arm. (R. 11.)
The ALJ found that Cameron could perform her past relevant work as a nurse supervisor (light
job) and unit secretary (sedentary job). (R. 25.) Likewise, the ALJ found that Cameron could
perform other sedentary or light work in the national economy, such as office nurse, nurse
consultant, marker/price changer and office helper. (R. 26-27.) These jobs involve lifting no
more than 20 pounds occasionally and 10 pounds frequently, consistent with the limitations
recommended by Dr. Chapmon in his letter. Moreover, the Dictionary of Occupational Titles
indicates that these jobs do not involve “continuous overhead activity.”4
3
According to Cameron’s Request for Review of Hearing/Decision to the Appeals Council, the ALJ
reviewed Dr. Chapmon’s letter but “did not feel that it changed her decision.” (R. 8.)
4
The jobs office nurse (DOT 075.374-014), nurse consultant (DOT 075.127-014), marker/price changer
(DOT 209.587-034) and office helper (DOT 239.567-010) do not require continuous overhead reaching, as they do
not require reaching “constantly” (defined as more than 2/3 of the time). These jobs require reaching either
“occasionally” (defined as up to 1/3 of the time) or frequently (defined as 1/3 to 2/3 of the time).
6
Even if the ALJ had adopted the stricter limitations set forth by Dr. Chapmon, she still
would have found Cameron not disabled. Accordingly, this issue does not merit reversal or
remand.
Cameron also argues on appeal that the ALJ improperly evaluated her medical records
and discounted her complaints of pain. Cameron’s disability claim focuses on her right shoulder
pain, seizures, fatigue, fibromyalgia, migraines and depression. Cameron testified that due to her
physical impairments she is unable to sit or stand for more than 10 minutes, cannot perform any
lifting, and must nap for at least an hour every day. (R. 43-44, 51.) Cameron asserts that her
complaints of pain and weakness are consistent and well documented in the medical record. She
points to a chest and upper back MRI taken on April 9, 2009 showing partial internal muscle
tears as objective medical evidence corroborating her complaints. The Commissioner argues
that the bulk of the medical and vocational evidence in the record supports the ALJ’s RFC
determination.
On October 2, 2007 Cameron suffered a seizure while at work. (R. 263.) It was the first
time she had ever had a seizure.5 (R. 263.) Three days later, on October 5, 2007, she suffered
another seizure. Cameron testified that these seizures were “devastating” and that “it seems like
everything just kind of fell apart after I had the seizure.” (R. 38.) Following the second seizure,
she was prescribed Dilantin. (R. 265.) Cameron had seizures in May 2008 and April 2009, at
which point she started taking Depakote. (R. 37, 38, 448, 665.) Cameron has not had any
seizures since she started Depakote. (R. 38.) Further, her physical examinations have
consistently showed no neurological abnormalities, with intact cranial nerves and normal grip,
5
Cameron testified that she believes a seizure may have caused her to have a car accident in 2006;
however, at the time, she was thought to have fallen asleep at the wheel. (R. 37.)
7
reflexes, sensation, coordination and gait. (R. 253, 290, 389, 453, 458, 463, 466, 519-520, 528,
569, 634, 737, 780, 898.)
Cameron also complained of chronic pain and weakness in her right arm and shoulder
stemming from a work injury in 2003. (R. 291.) An MRI on April 9, 2009 showed partial
internal muscle tears involving the right rhomboideus major and minor muscles and a low grade
partial internal tear of the trapezius muscle. (R. 672.) It also showed an old, mild compression
fracture. (R. 672.) Cameron’s traumatic injury to her shoulder is corroborated by the April 2009
MRI. However, she has had only routine, conservative treatment and on physical examination
she consistently demonstrated good range of motion with full strength and normal grip. (R. 253,
290, 389, 397, 400, 452, 458, 463, 519, 528, 534-35, 540, 563, 569, 582, 600, 614, 628, 634,
654, 659, 667, 703, 737, 745, 786, 792, 796, 893, 898, 904-905.) Moreover, Cameron continued
to work as a nurse for several years following her shoulder injury. (R. 34.)
Cameron also began treatment for fibromyalgia in November 2008, shortly following her
first seizure. (R. 398.) She responded well to the medications prescribed, with significant relief
of her symptoms. In a November 2008 visit, Dr. Polk observed that overall Cameron’s
symptoms were better, her joint pain had improved and “pain med[ication]s [were] helping [her]
s[ymptoms].” (R. 830.) In December 2008 visits, Dr. Polk noted that “[p]ain med[ications]
seem to be working…” and that her pain was generally controlled with current medications,
though she “has good and bad days.” (R. 567, 580.) In February 2009, Dr. Polk wrote that
Cameron “overall has been feeling sig[nificantly] better recently. Pain controlled with current
med[ications].” (R. 612.) In March 2009, Dr. Polk indicated “patient reports a dramatic
improvement in fibromyalgia symptoms” with significant improvements in arthralgias, neck pain
and mood. (R. 627). Again in April 2009, Dr. Polk wrote that Cameron’s pain was controlled
8
with current medications and her fibromyalgia symptoms had improved. (R. 631.) At a follow
up visit in May 2009, Dr. Polk indicated that Cameron’s symptoms continued to be controlled
with current medications and that overall she was continuing to do better. (R. 652.) In May
2009, at an appointment shortly following her last seizure, Dr. Polk noted that Cameron “feels
like [she] is relapsing overall,” however, her overall pain was “about the same.” (R. 665.) The
next month, July 2009, Dr. Polk stated that Cameron’s fibromyalgia symptoms were controlled
with current medications and that the patient “generally has been doing well.” (R. 895.)
Cameron also reported headaches which occurred two to three times a month. (R. 727.)
However, her treatment notes reflect few complaints related to headaches. Cameron also
suffered from asthma, which in May 2009 was “reasonably well controlled.”6 (R. 477.)
It is clear from the record that Cameron has not met her burden of establishing that she is
disabled. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). During the course of the
administrative process, three state agency physicians reviewed Cameron’s medical records and
determined that she retained the RFC to work. On December 21, 2007, Dr. Richard Surrusco
determined that Cameron could work with no exertional limitations, but that she had some
postural limitations and should avoid workplace hazards. (R. 280-82.) Dr. Thomas Phillips
reached the same conclusions on May 13, 2008. (R. 324.) On June 17, 2008, Dr. Robert
McGuffin determined that Cameron could lift and/or carry 20 pounds occasionally and/or 10
pounds frequently and could stand and/or walk about six hours and could sit for the same amount
of time. (R. 343.) Dr. McGuffin also limited climbing, reaching overhead on the right and
6
The court notes that the additional medical records submitted by Cameron as Exhibit 1, Tabs A-F,
contain a note indicating that her asthma is well controlled. (Dkt. 18-4, p. 26.) The additional medical records also
contain a letter from Dr. Polk, dated June 18, 2010, stating that Cameron “has had issues with depression and
anxiety in the past, which are currently controlled with medication.” (Dkt. 18-11, p. 16.) Apparently, Cameron
required these letters to be cleared for gastric bypass surgery.
9
workplace hazards. (R. 344-45.) While Dr. Chapmon’s letter restricted Cameron to light work
with no continuous overhead activity, he also wrote “I do think it is very reasonable for her to
find gainful employment…I would expect that she would likely be able to function in most
environments that do not require heavy lifting.” (R. 928.) Thus, there is no medical opinion in
the record proposing that Cameron is disabled from all forms of substantial gainful activity and
all three state agency physicians and Dr. Chapmon opined that Cameron could perform some
work.
The ALJ based her determination that Cameron was not fully credible on the degree of
medical treatment required, discrepancies between claimant’s assertions and information
contained in the documentary reports, the medical history, findings made on examination,
claimant’s assertions regarding ability to work and the reports of the reviewing, treating and
examining physicians. (R. 23-25.) The ALJ noted that Cameron’s treatment records show only
routine, conservative treatment. (R. 24.) The ALJ also considered the findings on examination
which “frequently revealed no joint pain or swelling, a full range of motion in the neck and back,
full ranges of motion in the extremities and a normal neurological examination.” (R. 24.) The
ALJ wrote “the record simply fails to demonstrate the presence of any pathological clinical
signs, significant medical finds, or any neurological abnormalities that would establish a pattern
of pain of such severity as to prevent the claimant from (…) work[ing].” (R. 24.)
The ALJ considered Cameron’s history of seizures, but noted that she had significant
improvement in her seizure frequency while on antiepileptic medications and that her motor
examinations showed full strength and normal reflexes, coordination and gait. (R. 24.) Further,
the ALJ noted that no treating source had placed any restrictions on Cameron. (R. 24.) Of
course, the letter from Dr. Chapmon did include certain limitations for Cameron, specifically
10
light work with no continuous overhead activity with the right arm. (R. 928.) However, as
discussed above, even if the ALJ had adopted Dr. Chapmon’s opinion, she would not have found
Cameron disabled. Also, as stated, three state agency physicians concluded that Cameron was
able to perform full-time work, with some limitations related to exertion, posture and workplace
hazards. (R. 23, 279, 324, 342.) Finally, the ALJ considered Cameron’s activities of daily
living, which included caring for her two year old child. (R. 24, 50.) Cameron also testified that
she washes clothes and cooks for herself and her family. (R. 45-46.)
In light of conflicting evidence contained in the record, it is the duty of the ALJ to factfind and to resolve any inconsistencies between a claimant’s alleged symptoms and his ability to
work. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). Accordingly, the ALJ is not
required to accept Cameron’s subjective allegation that she is disabled because of her pain, but
rather must determine, through an examination of the objective medical record, whether she has
proven an underlying impairment that could reasonably be expected to produce the symptoms
alleged. Craig v. Chater, 76 F.3d 585, 592-93 (4th Cir. 1996) (stating that objective medical
evidence must corroborate “not just pain, or some pain, or pain of some kind or severity, but the
pain the claimant alleges she suffers.”) Then, the ALJ must determine whether Cameron’s
statements about her symptoms are credible in light of the entire record. Credibility
determinations are in the province of the ALJ, and courts normally ought not to interfere with
those determinations. See Hatcher v. Sec’y of Health and Human Servs., 898 F.2d 21, 23 (4th
Cir. 1989).
After carefully reviewing the entire record, there is no reason to disturb the ALJ’s
credibility determination. See Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984) (finding
that because the ALJ had the opportunity to observe the demeanor and to determine the
11
credibility of the claimant, the ALJ’s observations concerning these questions are to be given
great weight.) As noted above, substantial evidence supports the ALJ’s conclusion that the
functional limitations Cameron claims are not supported by her medical records.
Further, it is clear from the record that the ALJ considered all the evidence and
formulated an appropriate hypothetical question to the vocational expert (“VE”) that fairly set
out Cameron’s impairments. The VE testified based on this hypothetical, which described a
limited range of medium work, that Cameron could perform her past relevant work in the nursing
field as it is generally performed. In fact, the ALJ also posed an even more limited hypothetical
question to the VE involving light work with restrictions regarding workplace hazards and
climbing. Based on this hypothetical, the VE testified that Cameron could return to her work as
a nurse supervisor and unit secretary as those jobs are customarily performed, and that she could
perform other jobs in the national economy, both skilled and unskilled. (R. 56.)
The record reflects that the ALJ considered all of Cameron’s impairments and posed to
the VE an appropriate hypothetical question. As such, the ALJ’s decision falls well within the
analytical framework set out in Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989).
IV
As an alternative to granting summary judgment in her favor, Cameron requests that the
court remand this case under sentence six of 42 U.S.C. § 405(g) for consideration of new
evidence provided in Exhibit 1 to plaintiff’s brief.
Sentence six authorizes the court to remand a case to the Commissioner upon a showing
of new, material evidence, for which good cause can be shown for the failure to incorporate such
evidence into the record in a prior proceeding. 42 U.S.C. § 405(g); Borders v. Heckler, 777 F.2d
12
954, 955 (4th Cir. 1985). Sentence six applies specifically to evidence not incorporated into the
record by either the ALJ or the Appeals Council.
The Fourth Circuit in Borders held that a reviewing court may remand a case to the
Commissioner on the basis of newly discovered evidence if four prerequisites are met. Borders,
777 F.2d at 955. First, the evidence must relate back to the time the application was first filed
and it must be new, in that it cannot be merely cumulative. Id.; see also Wilkins v. Sec’y, Dep’t
Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). The evidence must also be material to
the extent that the Commissioner’s decision might reasonably have been different had the new
evidence been before her. Borders, 777 F.2d at 955. There must be good cause for the
claimant’s failure to submit the evidence when the claim was before the Commissioner. Id.
Finally, the claimant must present to the remanding court at least a general showing of the nature
of the new evidence. Id.
Cameron presented to the court over 500 pages of medical records for consideration as
Exhibit 1, Tabs A-F, to her motion for summary judgment. Cameron seeks to introduce evidence
showing that she was diagnosed with both brachial plexopathy and undifferentiated connective
tissue disease (“UCTD”) following the hearing. Cameron also submitted an opinion from Dr.
Polk regarding her RFC, dated April 22, 2010. Cameron has met the fourth step of the Borders
test in this case, as she has provided the court with the evidence to be considered on remand and
the court understands its nature. See Borders, 777 F.2d at 955.
The documents Cameron presented to the court for consideration include records from
Dr. Scherer, dated August 19, 2009 through January 5, 2010, the Carilion Bone & Joint Center,
dated September 28-30, 2009, Dr. Polk, dated October 1, 2009-September 17, 2010 and
University of Virginia Health Systems, dated July 1, 2010. The ALJ issued her decision on
13
September 16, 2009 and the Appeals Council issued its decision on December 15, 2009.
Because the records dated after September 16, 2009 were not in existence at the time the ALJ
issued her decision, there is good cause shown as to why these records were not previously
submitted for review to the ALJ. See Borders, 777 F.2d at 955. Likewise, because the records
dated after December 15, 2010 were not in existence at the time the Appeals Council issued its
decision, there is good cause shown as to why these records were not previously submitted to the
Appeals Council for review. See Id. However, plaintiff has not shown good cause as to why
records dated prior to September 16, 2009 were not previously submitted to the ALJ for review
and why records dated prior to December 15, 2009 were not previously submitted to the Appeals
Council for review.
Furthermore, the documents contained in Exhibit 1, Tabs A-F, do not satisfy the other
requirements under Borders. The records provide no new, material evidence that could
reasonably be calculated to change the determination regarding Cameron’s impairments and
RFC. Cameron was diagnosed with idiopathic brachial plexitis based on an abrupt onset of
numbness in her right arm upon waking up the morning of September 28, 2009. (Dkt. 18-2, p. 3,
10, 20.) However, her symptoms improved with treatment. (Dkt. 18-2, p. 20.) In November
2009, Dr. Polk noted that Cameron “is getting return of function in right arm.” (Dkt. 18-5, p.
18.) In December 2009, Cameron’s brachial plexus injury was doing “significantly better” and
she was able to raise her right arm. (Dkt. 18-5, p. 35.) Physical examinations beginning in
February 2010 showed that Cameron was neurologically grossly intact with no focal deficits and
she had full strength and range of motion in her right arm. (Dkt 18-9, p. 12-13; Dkt. 18-10, p. 8,
18, 30; Dkt. 18-11, p. 13; Dkt. 18-12, p. 29; Dkt. 18-14, p. 25, 33; Dkt. 18-3, p. 9-10; Dkt. 18-7,
p. 12; Dkt. 18-13, p. 10-11, Dkt. 18-14, p. 25, 33.) She also denied neurological problems such
14
as paralysis and weakness. (Dkt. 18-10, p. 18; Dkt. 18-11, p. 12-13, Dkt. 18-14, p. 33.) In
August 2010, Cameron had an unremarkable MRI of the brachial plexus. (Dkt. 18-13, p. 26.)
Cameron also submitted a medical record showing she was diagnosed with UCTD on
July 1, 2010. However, no doctor opines that Cameron’s UCTD diagnosis resulted in any
functional limitation which would make her unable to work. A mere diagnosis is insufficient to
establish disability. See Gross v. Heckler, 785 F.2d 1163, 1165-66 (4th Cir. 1986); see also 42
U.S.C. § 423(d)(2)(A).
While the evidence Cameron submitted is in fact new because it was not incorporated
into the record by either the ALJ or the Appeals Council, it is not material. An implicit
materiality requirement is that the new evidence relate to the time period for which benefits were
denied, and that it not concern evidence of a later-acquired disability or the subsequent
deterioration of the previous non-disabling condition. Szubak v. Sec’y, Dep’t Health & Human
Servs., 745 F.2d 831, 833 (3d Cir. 1984); see also Baker v. Shalala, No. 1:92-0229, 1993 U.S.
Dist. Lexis 16130, at *16-18 (S.D. W.Va. Sept. 30, 1993). Cameron has failed to show that her
brachial plexopathy and UCTD relate to the period of disability on or before the date of the
ALJ’s decision. Instead, the brachial plexopathy records relate to a date after the ALJ’s decision,
when plaintiff awoke on September 28, 2009 with a numb right arm. (Dkt. 18-2, p. 3, 10, 20.)
Similarly, the UCTD diagnosis was made on July 1, 2010, over 9 months after the ALJ’s
decision. (Dkt. 18-19, p. 2.) As such, a sentence six remand is inappropriate. Furthermore,
Cameron has failed to show a reasonable possibility that these records might change the ALJ’s
decision. Plaintiff may choose to file a new Social Security application if she feels that she now
meets the requirements of disability. 20 C.F.R. § 404.620(a)(2).
15
Cameron also submitted a Medical Source Statement of Ability to do Work Related
Activities (physical) from Dr. Polk, dated April 22, 2010. (Dkt. 18-8, p. 1-4.) The document
states that Cameron’s conditions have existed and persisted with the restrictions outlined since
October 15, 2007. (Dkt. 18-8, p. 4.) However, Dr. Polk also wrote that she considered Cameron’s
“resolving brachial plexus neuritis” when assessing these limitations. (Dkt. 18-8, p. 2-3.) This
condition did not arise until two weeks after the ALJ’s decision. Thus, Dr. Polk’s Source
Statement does not relate back to the relevant time period as it was done over 7 months after the
ALJ’s decision and is based, at least in part, on a condition that did not arise until after the
decision was rendered. Additionally, there is no indication in the record as to why Cameron
failed to present this kind of opinion evidence when the matter was before the ALJ. Absent a
showing of good cause as to why this information was not presented to the ALJ, Cameron does
not meet the standard enunciated in Borders and the court must affirm the decision of the ALJ.
V
At the end of the day, it is not the province of the court to make a disability
determination. It is the court’s role to determine whether the Commissioner’s decision is
supported by substantial evidence, and, in this case, substantial evidence supports the ALJ’s
decision. In recommending that the final decision of the Commissioner be affirmed, the
undersigned does not suggest that Cameron is free from all pain or infirmity. Careful review of
the medical records compels the conclusion that Cameron has not met her burden of establishing
that she is totally disabled from all forms of substantial gainful employment. The ALJ properly
considered all of the subjective and objective factors in adjudicating Cameron’s claim for
benefits. It follows that all facets of the Commissioner’s decision in this case are supported by
16
substantial evidence. For these reasons the Commissioner’s Motion for Summary Judgment
(Dkt. #19) is GRANTED, and Cameron’s Motion for Summary Judgment (Dkt. #17) is
DENIED.
The Clerk is directed to send a copy of this Memorandum Opinion and accompanying
Order to counsel of record.
Entered: July 21, 2011
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
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