Shuman v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION AND ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 8/14/2017. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

ROGER SHUMAN,
Plaintiff,
v.

CIVIL ACTION NO.: 3:16-CV-62
(GROH)

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
DECLINING TO ADOPT REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of
the Report and Recommendation (“R&R”) [ECF No. 19] of United States Magistrate
Judge Michael J. Aloi.

Magistrate Judge Aloi issued his R&R on May 24, 2017,

recommending that this Court grant the Plaintiff’s motion for summary judgment, deny the
Commissioner’s motion for summary judgment, vacate the decision of the Administrative
Law Judge and remand for reconsideration. For the following reasons, the Court declines
to adopt the recommendation.
I. Background
On February 23, 2012, the Plaintiff filed an application for a period of disability and
disability insurance benefits, and on February 29, 2012, he filed an application under Title
XVI for supplemental security income. In both applications, the Plaintiff alleged disability
beginning on April 1, 2004. The Plaintiff’s claims were initially denied on September 10,
2012, and again upon reconsideration on March 11, 2013. At the Plaintiff’s request, a

hearing was held before the Administrative Law Judge (“ALJ”) on September 15, 2014.
Following the hearing, the ALJ found that the Plaintiff has not definitively engaged in
substantial gainful activity since April 1, 2004, and that he suffers from the following
severe impairments: osteoarthritis of the bilateral knees and degenerative arthritis of the
lumbar spine. The ALJ determined that, although the Plaintiff suffers from various severe
impairments and mild mental limitations, none—either on their own or in combination with
one another—meet or equal the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Upon calculating the Plaintiff’s residual functional
capacity (“RFC”), the ALJ determined that he is unable to perform past relevant work, but
nevertheless is able to perform work in positions that exist in significant numbers in the
national economy. Consequently, the ALJ rendered an unfavorable decision, finding the
Plaintiff not disabled under the Social Security Act. On March 7, 2016, the Appeals
Council denied the Plaintiff’s request for review.
On May 11, 2016, the Plaintiff filed his complaint with this Court seeking review of
the Commissioner’s final decision. On September 29, 2016, the Plaintiff filed his motion
for summary judgment and thereafter, on November 28, 2016, the Commissioner filed
her motion for summary judgment. On May 24, 2017, upon reviewing the pleadings and
relevant materials in this case, Magistrate Judge Aloi entered his R&R, recommending
that the Plaintiff’s motion for summary judgment be granted, the Commissioner’s motion
for summary judgment be denied and the case remanded for review of new evidence.
When the Commissioner filed her objections to the R&R on June 7, 2017, this case
became ripe for consideration.

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II. Standards of Review
A.

Review of the R&R

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of
those portions of the magistrate judge’s findings to which timely objections are made.
See Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce,
727 F.2d 91, 93-94 (4th Cir. 1984). In this case, pursuant to 28 U.S.C. § 636(b)(1)(C)
and Magistrate Judge Aloi’s R&R, objections were due within fourteen days after being
served with a copy of the same. The Commissioner timely filed objections on June 7,
2017. Accordingly, the Court will review de novo the portions of the R&R to which the
Commissioner objects and the remainder of the R&R for clear error.
B.

Review of the ALJ Decision

The Social Security Act limits this Court’s review of the Commissioner’s final
decision to whether substantial evidence supports the Commissioner’s decision,
Richardson v. Perales, 402 U.S. 389, 390-402 (1971), and whether the correct legal
standards were applied, Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Substantial evidence means “more than a mere scintilla” and “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938). It is critical that the reviewing court not reweigh
the evidence or substitute its judgment for that of the Commissioner, so long as that
decision is supported by substantial evidence, Hays, 907 F.2d at 1456, for it is the duty
of the ALJ—not the reviewing court—to make findings of fact and resolve conflicts in the
evidence, King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979) (“This Court does not find
facts or try the case de novo when reviewing disability determinations.”).

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C.

Evaluation Process

To determine whether a claimant is disabled, the ALJ conducts a five-step
evaluation process. 20 C.F.R. § 404.1520(a)(4). If the ALJ finds that the claimant is
disabled or not disabled at a certain step, a determination is made and the evaluation
does not proceed to the next step. Id. The steps are as follows:
Step One: Determine whether the claimant is engaging in substantial gainful
activity;
Step Two: Determine whether the claimant has a severe impairment;
Step Three: Determine whether the claimant has a listed impairment (20
C.F.R. Part 404, Subpart P, Appendix 1) and conduct a Residual Functional
Capacity (“RFC”) assessment;
Step Four: Consider the RFC assessment to determine whether the
claimant can perform past relevant work; and
Step Five: Consider the RFC assessment, age, education, and work
experience to determine whether the claimant can perform any other work.
Davidson v. Astrue, Civil Action No. 2:11-CV-55, 2012 WL 667296, at *3 (N.D. W. Va.
Feb. 28, 2012) (citing 20 C.F.R. § 404.1520(a)(4)).
In this case, under the five-step process, and after consideration of the entire
record, the ALJ found that the Plaintiff has not definitively engaged in substantial gainful
activity since the alleged disability onset date of April 1, 2004.1 The ALJ determined that
the Plaintiff suffers from two severe physical impairments and mild mental limitations, but
none that meet or equal the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. After conducting an RFC assessment, the ALJ concluded
that the Plaintiff is unable to perform past relevant work, but found that jobs exist in

1

The ALJ noted that although the Plaintiff worked and collected earnings beyond the alleged onset date,
he did not believe the activity rose to the level of substantial gainful activity. ECF No. 9-2 at 22-23.

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significant numbers in the national economy that the Plaintiff is able to perform. As a
result, the ALJ found the Plaintiff not disabled under the Social Security Act.
III. Discussion
Upon de novo review of the portions of the record to which objections are made,
the Court finds that the Appeals Council applied the correct legal standard regarding its
review of new and material evidence. The R&R advises that the January 30, 2015 letter
from licensed psychologist Aleisha Arbogast should have been considered by the
Appeals Council as new and material evidence that related back to the Plaintiff’s alleged
period of disability. Largely based on this conclusion, the R&R recommends that this
case be remanded to the Commissioner for consideration of the new evidence. However,
the Commissioner objects to this reasoning, arguing that Arbogast’s letter—which
postdates both the administrative hearing and the ALJ’s decision—relates to a later
period, was rightfully dismissed by the Appeals Counsel and does not affect the ALJ’s
October 27, 2014 decision. This Court agrees.
The Appeals Council is required to review and consider evidence submitted by the
plaintiff if it is new, material and relates back to the period on or before the ALJ’s decision.
Banks for Hunter v. Comm’r, Soc. Sec. Admin., No. 16-12306, 2017 WL 1420239, at *2
(11th Cir. Apr. 21, 2017) (unpublished per curiam); Wilkins v. Sec’y, Dep’t of Health &
Human Servs., 953 F.2d 93, 95 (4th Cir. 1991); Norris v. Colvin, 142 F. Supp. 3d 419,
421-22 (D.S.C. 2015); 20 C.F.R. § 404.970(a)(5). Evidence is considered new if it is not
duplicative or cumulative of evidence already in the administrative record, and material if
there is a reasonable probability that, if considered, it would have changed the ALJ’s
decision. Wilkins, 953 F.2d at 96. Evidence may relate back to the period on or before

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the ALJ’s decision even if it postdates the decision. Norris, 142 F. Supp. 3d at 422.
Notably, although the Appeals Council is tasked with considering new and material
evidence presented by the plaintiff, it is not required to explain its reasoning when denying
review. Meyer v. Astrue, 662 F.3d 700, 702, 705-06 (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.”).
Here, Arbogast’s letter from January 30, 2015—dated more than three months
after the ALJ’s decision—expresses findings related to the Plaintiff’s mental impairments.
ECF No. 14 at 18-19.

However, there is no indication that the letter describes

impairments complained of by the Plaintiff during the requisite time period: on or before
the ALJ’s October 27, 2014 decision. The letter is in present tense, fails to mention the
Plaintiff’s history of impairments and does not include dates of previous observation or
treatment. Of particular interest, the Plaintiff began seeing Arbogast for counseling
services on September 4, 2014—a mere eleven days prior to the administrative hearing.
ECF No. 9-9 at 78. During this initial consultation, Arbogast indicated that the Plaintiff’s
“progress and prognosis [were] too early to determine.” ECF No. 9-9 at 78. Accordingly,
Arbogast’s letter does not relate back to the period on or before the ALJ’s decision and,
therefore, the Appeals Council committed no error in declining to consider it.
Upon review of the remaining portions of the Appeals Council’s decision, the Court
finds that it followed the correct legal standards and committed no error in its
consideration of additional evidence submitted by the Plaintiff. As previously explained,
although the ALJ is required to explain the weight afforded to particular pieces of evidence
and articulate its reasons for reaching specific conclusions, the Appeals Council is under

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no obligation to perform such an analysis. Meyer, 662 F.3d at 705-06 (noting that “[t]he
Appeals Council’s denial of a request for review differs sharply from an ALJ’s decision”
(emphasis omitted)). Here, the Appeals Council considered evidence that it found to be
new and which related back to the period on or before the ALJ’s decision: a representative
brief from Phillip Isner, medical records from Dr. Ali Khan and Associated Specialists, and
medical records from Davis Medical Center.2 ECF No. 9-2 at 7. After consideration, it
determined that the “information [did] not provide a basis for changing the Administrative
Law Judge’s decision.” ECF No. 9-2 at 3. This summation is enough. See Meyer, 662
F.3d at 706 (“[T]he regulatory scheme does not require the Appeals Council to do
anything more than . . . consider new and material evidence.” (emphasis added) (internal
quotation and citation omitted)); see also Martinez v. Astrue, 389 F. App’x 866, 868-69
(10th Cir. 2010) (“[I]f . . . the Appeals Council explicitly states that it considered the
evidence, there is no error, even if the order denying review includes no further
discussion.”).
Additionally, the Appeals Council described pieces of evidence that it did not
consider during its review of the ALJ’s decision.3 Because the Appeals Council concluded
that this evidence did not relate back to the period on or before the ALJ’s decision, it was

2

This new evidence is labeled in the Administrative Record as exhibits 13E, 28F and 29F.

3

The Appeals Council stated that it
looked at medical records from Davis Medical Center, dated December 19, 2014 to
September 8, 2015 (27 pages); medical records from Tygart Valley Orthopaedics and
Sports Medicine, dated February 26, 2015 to June 8, 2015 (24 pages); and records from
Valley Health Care, dated December 12, 2014 (2 pages), dated January 30, 2015 (2 pages,
submitted in duplicate), dated February 27, 2015 (1 page), and dated September 10, 2015
(2 pages).

ECF No. 9-2 at 3.

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not required to be considered and was properly excluded from the record. Therefore,
because the Appeals Council did not commit legal error in its review of the ALJ’s decision,
the Court DECLINES to adopt the magistrate judge’s recommendation that this case be
remanded to the Commissioner for evaluation of new evidence.
In light of the R&R’s conclusion that remand is appropriate based upon alleged
error by the Appeals Council, it does not consider the other arguments presented by the
parties in their motions for summary judgment. Thus, this Court must conduct a de novo
review of those issues. Aside from the Plaintiff’s argument regarding new evidence, he
raises two concerns: whether the ALJ erred in discounting his credibility and whether the
ALJ erred in finding him not disabled under the Social Security Act.4 Based upon the
reasons provided below, the Court affirms the ALJ’s decision.
A.

ALJ’s Credibility Determination

Credibility determinations of hearing courts are afforded considerable deference.
See F.T.C. v. Ross, 743 F.3d 886, 894 (4th Cir. 2014); Salyers v. Chater, 107 F.3d 867,
at *1 (4th Cir. 1997) (unpublished table decision) (citing Barker v. Shalala, 40 F.3d 789,
795 (6th Cir. 1994)). As a result, an ALJ’s credibility determination will be reversed “only
if the claimant can show it was patently wrong.” Powers v. Apfel, 207 F.3d 431, 435 (7th
Cir. 2000) (internal quotation and citation omitted). The Plaintiff contends that the ALJ’s
credibility determination was based solely upon his failure to enroll in counseling services
until eighteen days before the administrative hearing. However, the ALJ cited to other
evidence within the record, which conflicts with the Plaintiff’s personal accounts, to

In his motion for summary judgment, the Plaintiff does not appear to dispute the ALJ’s conclusion
regarding his physical impairments, but takes issue with the finding classifying his mental impairments as
non-severe.
4

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support his finding.

For example, he indicated that Arbogast’s September 9, 2014

diagnostic impression revealed “no significant mental status findings . . . to support
severe mental impairments.” ECF No. 9-2 at 23. In addition, he reviewed the Plaintiff’s
work activity following his alleged onset date and determined that it was inconsistent with
the severity of the disabling conditions alleged. ECF No. 9-2 at 27. Indeed, the record is
lacking in objective medical evidence supporting the Plaintiff’s suggestion of severe
mental impairments. The ALJ’s credibility finding takes into consideration the stark
contrast between the Plaintiff’s subjective complaints and the lack of impartial medical
evidence in support thereof. In sum, a de novo review of the record supports the ALJ’s
credibility determination, and because the Plaintiff has not demonstrated that it was
patently wrong, it will not be disturbed.
B.

ALJ’s Disability Determination

Other than the letter from Arbogast, there is almost no evidence in the record,
aside from the Plaintiff’s subjective complaints, that corroborates the existence of severe
and debilitating mental impairments after the alleged onset date. In fact, substantial
evidence exists in the record to support the ALJ’s conclusion that the Plaintiff’s mental
impairments cause only mild limitation. See ECF Nos. 9-3 at 7, 8, 9, 21, 22, 37, 38, 52,
53; 9-7 at 77, 81; 9-8 at 9-13, 60. For example, an evaluation performed by Dr. Joseph
indicated that the Plaintiff’s psychological prognosis was fair. ECF No. 9-7 at 77-82. In
addition, the non-examining state agency psychologists concluded that the Plaintiff
“retains the mental . . . capacity to engage in work-like activity.” ECF No. 9-3 at 22, 38,
53. Therefore, because substantial evidence supports the ALJ’s decision as to the
severity of the Plaintiff’s mental impairments, it will be upheld.

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In regard to the Plaintiff’s physical impairments, substantial evidence supports the
ALJ’s determination. The ALJ found that the Plaintiff suffers from two severe physical
impairments: osteoarthritis of the bilateral knees and degenerative arthritis of the lumbar
spine. ECF No. 9-2 at 23. Nevertheless, the ALJ concluded that neither of these
impairments meets or equals the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1. ECF No. 9-2 at 26. The objective evidence within the record
supports this conclusion. For example, the Plaintiff continued to work after his alleged
disability onset date of April 1, 2004. See ECF Nos. 9-5 at 20-23; 9-6 at 40. In particular,
he performed work in 2008 that required him to dust, sweep, mop and care for an
individual in a wheelchair. ECF No. 9-2 at 78. Additionally, the Plaintiff testified during
the administrative hearing that he has to walk everywhere he goes. ECF No. 9-2 at 52.
Indeed, a physical therapy progress note from July 24, 2014, indicated that he briskly
walked around town several times a week and frequently walked his dog. ECF No. 9-9
at 48. The Plaintiff acknowledged that he prepares simple meals and performs household
chores on his own, including washing dishes, sweeping and mopping. ECF No. 9-6 at
12. Moreover, although he failed to regularly attend sessions as instructed, medical
evidence reveals that the Plaintiff’s back pain improved with physical therapy. ECF No.
9-9 at 48-63. The Plaintiff’s knee pain likewise improved with treatment. ECF No. 9-9 at
87, 93, 99. As indicated by the ALJ, the above-mentioned evidence demonstrates that
the Plaintiff’s physical impairments are not as debilitating as he suggests. Thus, because
substantial evidence supports the ALJ’s decision regarding the Plaintiff’s physical
impairments, it must be affirmed. See 42 U.S.C. § 405(g); Mastro v. Apfel, 270 F.3d 171,
176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)).

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C.

New Evidence Considered by the Appeals Council

Finally, in determining whether the ALJ’s decision is supported by substantial
evidence, this Court must also review the new evidence considered by the Appeals
Council. Martinez, 389 F. App’x at 869. In so doing, the Court must determine “whether
the record, combined with the new evidence, provides an adequate explanation of [the
Commissioner’s] decision.” Turner v. Colvin, No. 0:14-cv-00228-DCN, 2015 WL 751522,
at *5 (D.S.C. Feb. 23, 2015) (alteration in original) (internal quotation omitted) (quoting
Meyer, 662 F.3d at 707). In other words, if the new evidence is not in blatant contradiction
with and does not cast serious doubt upon the original evidence reviewed by the ALJ,
then remand is unnecessary as long as the ALJ’s decision is supported by substantial
evidence. See Flesher v. Colvin, Civil Action No. 2:14-cv-30661, 2016 WL 1271511, at
*9-10 (S.D. W. Va. Mar. 31, 2016).
In rendering its decision, the Appeals Council received and considered three new
pieces of evidence: a representative brief from Phillip Isner, medical records from Dr. Ali
Khan and Associated Specialists, and medical records from Davis Medical Center. ECF
No. 9-2 at 7. First, the representative brief addresses the findings of Arbogast in her
January 30, 2015 letter. ECF No. 9-6 at 68-72. As previously explained, this letter does
not relate back to the period on or before the ALJ’s decision and therefore does not affect
the findings and conclusions contained therein. Therefore, the representative brief, by
the same token, does not contradict the original evidence or cast doubt upon the ALJ’s
decision. Next, the medical records from Dr. Ali Khan and Associated Specialists include

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bloodwork results and findings from a spirometry test5 conducted on October 7, 2014.
ECF No. 9-10 at 66-69. This new evidence does not belie the findings within the original
evidence of record or contradict the ALJ’s conclusion regarding the Plaintiff’s physical
impairments. The Plaintiff’s blood test results were all within normal range except for
calculated LDL cholesterol, monocytes absolute and red cell distribution width. ECF No.
9-10 at 67. The spirometry test results depict only a mild restriction. ECF No. 9-10 at 68.
Upon review, it is clear that this new evidence does not call into question the ALJ’s finding
regarding the Plaintiff’s chronic obstructive pulmonary disease or his ultimate decision.
See ECF No. 9-2 at 33. Lastly, the records from Davis Medical Center indicate that the
Plaintiff’s back pain improved with injections and that he was able to walk on his tiptoes
and heels. ECF No. 9-11 at 5, 9, 11, 14, 16. Overall, the new evidence from Davis
Medical Center reveals no significant findings and is consistent with the original objective
evidence of record.6
Upon consideration, this Court does not find that the new evidence provided to the
Appeals Council would have changed the ALJ’s final decision. Certainly, it does not show
“a dramatically different picture” of the Plaintiff’s impairments than that portrayed by the
original evidence before the ALJ. Cf. Ridings v. Apfel, 76 F. Supp. 2d 707, 710 (W.D. Va.
1999) (remanding case in light of new evidence that “clearly call[ed] into doubt” prior
medical reports and the ALJ’s findings). Accordingly, remand of this case is unnecessary.

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Spirometry tests evaluate breathing and assess lung function. Understanding Your Breathing Results,
Worker Health Protection Program, http://www.worker-health.org/breathingtestresults.html (last visited July
12, 2017).
A portion of the “new” evidence from Davis Medical Center was in fact reviewed by the ALJ and referenced
in his decision. See ECF Nos. 9-2 at 33; 9-9 at 64-73. Specifically, the ALJ reviewed records from Davis
Medical Center, which were signed by Dr. Mohamed Fahim, from May 29, 2014; July 30, 2014; and August
21, 2014. Additional records not reviewed by the ALJ, but submitted to the Appeals Council for review,
include those dated September 3, 2014; September 12, 2014; and October 24, 2014.
6

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IV. Conclusion
Although the Plaintiff disagrees with the denial of his disability claim, “[w]here
conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the . . . ALJ.” Craig, 76 F.3d at 589
(internal quotation and citation omitted). Thus, because it is supported by substantial
evidence, the ALJ’s decision will not be altered. Accordingly, the Court SUSTAINS the
Commissioner’s objections [ECF No. 20] and DECLINES to adopt the Report and
Recommendation [ECF No. 19] for the reasons more fully stated in this Order. The Court
ORDERS the Commissioner’s Motion for Summary Judgment [ECF No. 17] GRANTED
and the Plaintiff’s Motion for Summary Judgment [ECF No. 13] DENIED.
The Court ORDERS this case DISMISSED WITH PREJUDICE and DIRECTS the
Clerk to STRIKE this matter from the active docket, enter a separate judgment order in
favor of the Defendant Commissioner and transmit copies of this Order to all counsel of
record herein.
DATED: August 14, 2017

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