Whorley v. Astrue
Filing
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MEMORANDUM OPINION AND ORDER granting plaintiff's 12 MOTION to Remand and this case is remanded to the Commissioner for further proceedings pursuant to the sixth sentence of 42 U.S.C. § 405(g), that is, for determination of the date when Claimant became disabled; directing this case transferred to the inactive docket to await the Commissioner's decision on remand. Signed by Magistrate Judge Mary E. Stanley on 5/15/2012. (cc: attys) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
SHEILA DOVE WHORLEY,
Plaintiff,
v.
CASE NO. 2:11-cv-00208
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
This is an action seeking review of the decision of the Commissioner of Social
Security denying Plaintiff's application for disability insurance benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. §§ 401-433. Both parties have consented in writing
to a decision by the United States Magistrate Judge. On June 22, 2011, Plaintiff filed a
Motion to Remand Based on New and Material Evidence pursuant to sentence six of 42
U.S.C. §405(g) (ECF No. 12), after she was awarded benefits on a subsequent application
effective the day after the ALJ’s decision on the application before the court, and a brief in
support of her claim (ECF No. 13). The Commissioner filed a brief in support of judgment
on the pleadings which also addressed Claimant’s Motion to Remand (ECF No. 14).
Claimant filed a response to Defendant’s brief (ECF No. 15).
Plaintiff, Sheila Dove Whorley (hereinafter referred to as “Claimant”), filed an
application for DIB on February 9, 2009, alleging disability as of December 31, 2008, due
to shortness of breath, lower back/leg pain, nerves, and pain in knees/feet. (Tr. at 10, 75,
83, 135-38, 165-72, 198-202, 235-41.)
The claim was denied initially and upon
reconsideration. (Tr. at 10, 75-79, 83-87.) On November 2, 2009, Claimant requested a
hearing before an Administrative Law Judge (“ALJ”). (Tr. at 86-87.) The hearing was held
on August 19, 2010 before the Honorable John W. Rolph. (Tr. at 30-68.) By decision dated
September 15, 2010, the ALJ determined that Claimant was not entitled to benefits. (Tr.
at 10-24.) The ALJ’s decision became the final decision of the Commissioner on March 9,
2011, when the Appeals Council denied Claimant’s request for review. (Tr. at 1-3.) On
March 30, 2011, Claimant brought the present action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. § 405(g).
On October 4, 2010, Claimant filed a subsequent application alleging disability with
an onset of December 31, 2008. On February 9, 2010, Claimant was awarded benefits on
the subsequent application effective September 16, 2010, the day after the ALJ’s
unfavorable decision on the subject application, relying upon reports by Nilima Bhirud,
M.D., received January 14, 2011 and Lester Sargent (Kara Gettman-Hughes), received on
December 14, 2010. (ECF No. 12-2, pp. 1-2; ECF No. 14-1, pp. 1-3; Pl.'s Motion to Remand
Br. at 1-6; Def.’s Br. at 16-20.)
Under 42 U.S.C. § 423(d)(5), a claimant for disability has the burden of proving a
disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is
defined as the "inability to engage in any substantial gainful activity by reason of any
medically determinable impairment which can be expected to last for a continuous period
of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the
adjudication of disability claims. 20 C.F.R. § 404.1520 (2002). If an individual is found
"not disabled" at any step, further inquiry is unnecessary. Id. § 404.1520(a). The first
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inquiry under the sequence is whether a claimant is currently engaged in substantial gainful
employment. Id. § 404.1520(b). If the claimant is not, the second inquiry is whether
claimant suffers from a severe impairment. Id. § 404.1520(c). If a severe impairment is
present, the third inquiry is whether such impairment meets or equals any of the
impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4.
Id. § 404.1520(d). If it does, the claimant is found disabled and awarded benefits. Id. If
it does not, the fourth inquiry is whether the claimant's impairments prevent the
performance of past relevant work. Id. §§ 404.1520(e). By satisfying inquiry four, the
claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th
Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d
866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant
is able to perform other forms of substantial gainful activity, considering claimant's
remaining physical and mental capacities and claimant's age, education and prior work
experience. 20 C.F.R. § 404.1520(f) (2002). The Commissioner must show two things: (1)
that the claimant, considering claimant’s age, education, work experience, skills and
physical shortcomings, has the capacity to perform an alternative job, and (2) that this
specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574
(4th Cir. 1976).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry
because she has not engaged in substantial gainful activity since the alleged onset date. (Tr.
at 12.) Under the second inquiry, the ALJ found that Claimant suffers from the severe
impairments of morbid obesity, degenerative disc disease of the cervical spine with disc
bulging and stenosis, lumbosacral strain with pain, moderate right side carpal tunnel
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syndrome, dysthymic disorder, major depressive disorder, anxiety disorder, avoidant and
paranoid personality traits, social anxiety, and borderline intellectual functioning. (Tr. at
12-14.) At the third inquiry, the ALJ concluded that Claimant’s impairments did not meet
or equal the level of severity of any listing in Appendix 1. (Tr. at 14-17.) The ALJ then found
that Claimant has a residual functional capacity for light work, reduced by nonexertional
limitations. (Tr. at 17-22.) As a result, Claimant cannot return to her past relevant work.
(Tr. at 22.) Nevertheless, the ALJ concluded that Claimant could perform jobs such as
janitor, cleaner/housekeeper, and price marker which exist in significant numbers in the
national economy. (Tr. at 23-24.) On this basis, benefits were denied. (Tr. at 24.)
Scope of Review
The sole issue before this court is whether the final decision of the Commissioner
denying the claim is supported by substantial evidence. In Blalock v. Richardson,
substantial evidence was defined as
“evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a mere
scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is 'substantial
evidence.’”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the court, is charged
with resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Nevertheless, the courts “must not abdicate their traditional functions; they cannot
escape their duty to scrutinize the record as a whole to determine whether the conclusions
reached are rational.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
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Motion to Remand
The court will first consider Claimant’s Motion to Remand. The court notes initially
that the Social Security regulations allow two types of remand. Under the fourth sentence
of 42 U.S.C. § 405(g), the court has the general power to affirm, modify or reverse the
decision of the Commissioner, with or without remanding the cause for rehearing for
further development of the evidence. 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S.
89, 97 (1991). Where there is new medical evidence, the court may remand under the sixth
sentence of 42 U.S.C. § 405(g), based upon a finding that the new evidence is material and
that good cause exists for the failure to previously offer the evidence. 42 U.S.C. § 405(g);
Melkonyan, 501 U.S. at 97. The Supreme Court has explicitly stated that these are the only
kinds of remand permitted under the statute. Melkonyan, 501 U.S. at 98.
In order to justify a remand to consider newly submitted medical evidence, the
evidence must meet the requirements of 42 U.S.C. § 405(g) and Borders v. Heckler, 777
F.2d 954, 955 (4th Cir. 1985).1 In Borders, the Fourth Circuit held that newly discovered
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Within relevant case law, there is some disagreement as to whether 42
U.S.C. § 405(g) or the opinion in Borders provides the proper test in this
circuit for remand of cases involving new evidence. The court will apply the
standard set forth in Borders in accordance with the reasoning previously
expressed in this district:
The court in Wilkins v. Secretary of Dep't of Health & Human
Servs., 925 F.2d 769 (4th Cir. 1991), suggested that the more
stringent Borders four-part inquiry is superseded by the standard
in 42 U.S.C. 405(g). The standard in § 405(g) allows for remand
where "there is new evidence which is material and . . . there is
good cause for the failure to incorporate such evidence into the
record in a prior proceeding." However, Borders has not been
expressly overruled. Further, the Supreme Court of the United
States has not suggested that Borders' construction of § 405(g)
is incorrect. Given the uncertainty as to the contours of the
applicable test, the Court will apply the more stringent Borders
inquiry.
Brock v. Secretary, Health and Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.
W. Va. 1992) (citations omitted).
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evidence may warrant a remand to the Commissioner if four prerequisites are met: (1) the
evidence is relevant to the determination of disability at the time the application was first
filed and not simply cumulative; (2) the evidence is material to the extent that the
Commissioner's decision “might reasonably have been different” had the new evidence been
before him; (3) there is good cause for the claimant's failure to submit the evidence when
the claim was before the Commissioner; and (4) the claimant has presented to the
remanding court “at least a general showing of the nature” of the newly discovered
evidence. Id.
In support of her motion, Claimant provides two medical reports and the favorable
decision on her subsequent application. The two medical reports are evaluations by Dr.
Bhirud dated January 5, 2011 (physical), and by Ms. Gettman-Hughes dated December 8,
2010 (mental). These two reports were the basis for the award of disability benefits by
decision dated February 9, 2011. A comparison of the two applications, medical evidence
and decisions is helpful to resolution of the motion.
Factor
9/15/2010 decision by ALJ
denying benefits
2/9/2011 decision granting
benefits as of 9/16/2010
Application date
2/9/2009
10/4/2010
Date of onset
12/31/2008
12/31/2008
Engaged in SGA since
date of onset?
No
No
Severe impairments
Found by ALJ:
Morbid obesity, degenerative
disc disease of the cervical
spine with disc bulging and
stenosis, lumbosacral strain
with pain, moderate right side
carpal tunnel syndrome,
dysthymic disorder, major
Claimant alleged:
Morbid obesity,
degenerative disc disease,
lumbosacral strain, back,
knees and ankle pain,
carpal tunnel, dysthymic
disorder, esophageal
strictures
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depressive disorder, anxiety
disorder, avoidant and
paranoid personality traits,
social anxiety, and borderline
intellectual functioning
Age on date of
decision
52 years, 8 months
53 years
Date of last
consultative physical
evaluation
6/17/2009 (Bhirud)
1/5/2011 (Bhirud)
Physical assessment
“Claimant is a 51-year-old
female who gives history of
backache. At the time of
examination she had mild
lumbar tenderness. Forward
flexion is 70 degrees. SLR was
70 degrees on both sides. She
did not have any neurologic
deficits in her lower
extremities. As far as her knees
are concerned, there was no
swelling, no tenderness. Range
of motion was normal.” (Tr. at
322.)
“The claimant is a 52-yearold female who gives
history of backache. At the
time of examination,
forward flexion was 45
degrees. The claimant
appeared to be very
depressed. She had mild
lumbar tenderness.
Straight leg raising was
positive at 70 degrees on
both sides.” (ECF No. 141, at 3.)
Date of last
consultative mental
evaluation
5/12/2009 (Tate)
12/11/2010
(Sargent/GettmanHughes)
Mental status
examination
Activities of Daily Living:
Watching television, briefly at
times. She also takes a shower.
Social Functioning: Within
normal limits based on her
interaction with staff during the
evaluation.
Concentration: Mildly deficient
based on the Digit Span subtest
score of 6. Persistence: Within
normal limits based on clinical
observation. Pace: Within
normal limits based on clinical
observation. (Tr. at 301.)
Activities of Daily Living:
Stays in bed all day; does
not do any housework or
yardwork.
Social Functioning: Does
not go out; does not visit
family or friends; does not
talk on telephone; does not
exercise; does not go to
church
Concentration: Very poor;
could not be assessed
because the claimant cried
when asked to repeat
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digits.
Persistence: Moderately
impaired based on her
ability to remain focused
on tasks
Pace: Slow
Mental diagnosis
Major depressive disorder,
single episode, severe with
anxious features, based on
symptoms of crying, excessive
worry, feeling overwhelmed,
sadness, loss of interest in
activities, social withdrawal,
hopelessness, helplessness,
sleep difficulty. (Tr. at 300-01.)
Major depressive disorder,
single episode, moderate;
generalized anxiety
disorder.
Claimant asserts that the two new reports provide a basis for remand because they
meet the Borders four-part test. (ECF No. 12, at 4-6.) She further contends that the
favorable decision itself constitutes new and material evidence. Id. at 4.
The Commissioner responds that the subsequent decision granting benefits is not
“evidence.” (ECF No. 14, at 16.) He contends that the two reports do not meet the Borders
test because they do not relate to the time period relevant to the ALJ’s decision. Id. at 1920.
Relevance
The evidence must be relevant to the determination of disability at the time the
application was first filed, and not simply cumulative. The application period under
consideration is December 31, 2008 through September 15, 2010. Dr. Bhirud’s reports
dated 6/17/2009 and 1/5/2011 are remarkably similar. In both reports, she noted “a history
of backache” and “mild lumbar tenderness.” (Tr. at 322; ECF No. 14-2 at 3.) In 2009,
Claimant’s straight leg raise was “70 degrees on both sides.” (Tr. at 322.) It is unclear
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whether Dr. Bhirud was indicating that the test was positive at 70 degrees, or that Claimant
simply raised her legs to 70 degrees. In 2011, her straight leg raising was “positive at 70
degrees on both sides.” In the 2009 report, Claimant’s forward flexion was 70 degrees; in
the 2011 report, it was 45 degrees. Id. The 2011 report confirms the findings of the 2009
report, and indicates that Claimant’s condition worsened.
Evidence is deemed to be relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence and the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Dr. Bhirud’s 2009 report was rendered 15
months before the ALJ’s decision; the 2011 report was issued less than four months after
the ALJ’s decision. The two reports indicate a worsening of Claimant’s back condition.
There is no reason to believe that Claimant’s back condition suddenly worsened on
September 16, 2010, the day after the ALJ’s decision; degenerative disc disease is a gradual
process. Accordingly, the court finds that the 2011 report by Dr. Bhirud is relevant to
whether Claimant’s back impairment was disabling, alone or in combination, prior to
September 15, 2010.
The analysis with respect to the 2010 mental status evaluation by Ms. GettmanHughes yields a similar result. The court notes that the ALJ credited the mental status
evaluation of Lisa Tate, dated May 12, 2009, fifteen months before the ALJ’s decision, but
not that of Sheila Kelly, dated April 9, 2010. Ms. Tate reported the same diagnosis as Ms.
Gettman-Hughes, although Mr. Tate rated it as “severe,” while Ms. Gettman-Hughes
termed it “moderate.” Both evaluators described Claimant’s social withdrawal, crying,
depression, etc. Ms. Kelly described Claimant’s life of staying in her room, lying on her bed,
as “hugely avoidant and socially anxious.” (Tr. at 410.) It is apparent that Claimant has
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been displaying the same depressive symptoms over a period of years and did not suddenly
worsen on September 16, 2010. The court finds that the 2010 report by Ms. GettmanHughes is relevant to whether Claimant’s mental impairment(s) were disabling, alone or
in combination, prior to September 15, 2010.
Materiality
Evidence is material if the Commissioner’s decision might reasonably have been
different had the new evidence been presented. When the psychological evidence is viewed
over the span from Ms. Tate’s evaluation to Ms. Gettman-Hughes’ report, it is plain that
Claimant’s depression and anxiety have worsened considerably, and may well have met the
criteria of the Listings in Appendix 1 for Affective Disorders or Anxiety Related Disorders
as of a date prior to September 15, 2010. The court finds that Ms. Gettman-Hughes’ report
is material.
The court is not persuaded that Dr. Bhirud’s 2011 report is material.
Good Cause
The court finds that good cause exists for Claimant’s failure to submit the evidence
when the claim was before the Commissioner; the reports did not exist as of the ALJ’s
decision. As set forth in the Motion to Remand, Claimant’s counsel was unaware of the
reports until March 24, 2011, two weeks after the Appeals Council denied the request for
review.
Nature of the Evidence
Claimant has produced the reports themselves.
Favorable Decision as Evidence
The court concludes that it is not necessary to decide whether the favorable ruling
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awarding benefits as of September 16, 2010 is itself evidence.
Ruling
The court finds that Claimant has met the four-part Borders test with respect to the
mental status evaluation by Ms. Gettman-Hughes, and accordingly the Commissioner’s
decision is not supported by substantial evidence. It is hereby ORDERED that the Motion
to Remand (ECF No. 12) is granted and this case is remanded to the Commissioner for
further proceedings pursuant to the sixth sentence of 42 U.S.C. § 405(g), that is, for
determination of the date when Claimant became disabled.
The Clerk is directed to transmit this Memorandum Opinion and Order to counsel
of record and to transfer this case to the inactive docket, to await the Commissioner’s
decision on remand.
ENTER: May 15, 2012
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