Spence v. Colvin

Filing 13

MEMORANDUM OPINION GRANTING Plaintiff's Motion for Summary Judgment on the Pleadings to the extent Claimant seeks remand and otherwise DENYING; REVERSING AND REMANDING this matter for further administrative proceedings pursuant to the sixth sentence of 42 U.S.C. § 405(g) and DISMISSING this matter from the docket of this Court. Signed by Magistrate Judge Dwane L. Tinsley on 9/30/2014. (cc: attys) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CARLOS JARRETT SPENCE,
Plaintiff,
v.

Civil Action No. 3:13-CV-20720

CAROLYN W. COLVIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the final decision of the Commissioner of Social
Security denying the Claimant’s application for disability insurance benefits (DIB) and
supplemental security income (SSI), under Titles II and XVI of the Social Security Act,
42U.S.C. Sections 401-433, 1381-1383f. Both parties have consented to a decision by the
United States Magistrate Judge. Presently pending before the Court are Plaintiff’s Brief in
Support of Judgment on the Pleadings (ECF No. 10) and Defendant’s Brief in Support of the
Defendant’s Decision (ECF No. 12).
Background
On May 19, 2010, Carlos Jarrett Spence, Plaintiff (hereinafter Claimant), filed
applications for supplemental security income and disability insurance benefits alleging
disability since April 10, 2010. The claims were denied initially on August 23, 2010, and upon
reconsideration on June 2, 2011.

Claimant then filed a request for a hearing before an

Administrative Law Judge (ALJ) on June 6, 2011 (Tr. at 110-111).

A hearing was held on

February 22, 2012, in Huntington, West Virginia (Tr. at 22-71). The ALJ denied the claims on
March 23, 2012 (Tr. at 7-21). On May 24, 2012, Claimant requested a review by the Appeals
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Council stating that the decision by the ALJ was not supported by substantial evidence (Tr. at 6).
On May 18, 2013, the Appeals Council received additional evidence from Claimant which was
made part of the record (Tr. at 4). Representative brief dated May 24, 2012 marked as Exhibit
C19E and medical records from Community Radiology and David Dascal, M.D. dated March 16,
2012 to April 5, 2012, marked as Exhibit C14F. On May 18, 2013, the Appeals Council “found
no reason under our rules to review the Administrative Law Judge’s decision” (Tr. at 1). The
Appeals Council stated the additional evidence was considered but did not provide a basis for
changing the ALJ’s decision (Tr. at 2). Claimant brought the present action seeking judicial
review of the administrative decision pursuant to 42 U.S.C. § 405(g).
Claimant has moved this Court to grant disability insurance benefits and supplemental
security income benefits or remand this matter, pursuant to the sixth sentence of 42 U.S.C. '
405(g), to the administrative level for consideration of new evidence.
Request for Remand
In considering Claimant's request for 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

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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 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 Amight
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 Aat least a general showing of the
nature@ of the newly discovered evidence. Id.

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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. This 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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Claimant’s Challenges to the Commissioner’s Decision
Claimant asserts that the decision of the ALJ is not supported by substantial evidence. He
asserts that the ALJ failed to properly evaluate his credibility2 pursuant to 42 U.S.C. §
423(d)(5)(A), Social Security Rule 96-7p and applicable case law. Claimant avers that the
Appeals Council failed to properly consider the new and material evidence submitted relating to
his severe back impairment. Claimant requests this Court to reverse or remand this case (ECF
No. 10). Defendant asserts that the ALJ’s decision is supported by substantial evidence and that
Claimant’s allegations of disabling symptoms and limitations were not credible (ECF No. 12).
Defendant asserts that the additional evidence submitted to the Appeals Council was not new and
material.
Review of the Decision
Claimant asserts that he is entitled to disability insurance benefits and supplemental
security income because he suffers from: gout, chronic back pain, degenerative disc disease,
status post right ankle fracture with decreased range of motion, left elbow lateral epicondylitis,
status post right shoulder strain, obesity, hypertension and major depressive disorder.

By

decision dated March 23, 2012, the Administrative Law Judge (hereinafter ALJ) found Claimant
to suffer from the severe impairments of gout, chronic back pain with degenerative disc disease,
status post right ankle fracture with decreased range of motion, left elbow lateral epicondylitis
and status post right shoulder strain (Tr. at 12). However the ALJ found that Claimant does not
have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. at 14).
2 In Defendant’s Brief in Support of the Defendant’s Decision, Defendant relies on the ALJ finding “that Ross’
testimony was not entirely credible for legally sufficient reasons…” (ECF No. 12). There is no person named Ross
in this claim.

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In her decision, the ALJ stated that when considering the evidence as it pertains to
Claimant’s chronic back pain with degenerative disc disease under Listing 1.04, “No treating or
examining physician has indicated findings that would satisfy the severity requirement.” (Id.)
The ALJ held:
Although the record shows chronic back pain with degenerative disc disease,
listing 1.04 is not met because there is no compromise of a nerve root (including
the cauda equine) or the spinal cord. There is no spinal cord compression, no
evidence of root nerve compression characterized by neuroanatomic distribution
of pain, limitation of motion of the spine, no motor loss (atrophy with associated
muscle weakness) accompanied by sensory or reflex loss. Further the claimant
does not have any spinal arachnoiditis or lumbar spinal stenosis resulting in
pseudoclaudication. Therefore, the mere presence of chronic back pain with
degenerative disc disease is not sufficient to meet or equal listing 1.04.
Additionally, the ALJ held that Claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, his statements concerning the
intensity, persistence and limiting effect of these symptoms were not credible” (Tr. at 15-16).
The ALJ stated “Turning to the medical evidence, the objective findings in this case fail [to]
provide support for the claimant’s allegations” (Tr. at 16).
Substantial Evidence
The Fourth Circuit has held that “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.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation omitted). The court must review whether the ALJ’s findings reached were based upon
a correct application of the relevant law. The Commissioner uses a five-step process to evaluate
disability claims.”

Hancock, 667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4)). “Under this process, the Commissioner asks, in sequence, whether the claimant:
(1) worked during the alleged period of disability; (2) had a severe impairment; (3) had an
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impact that met or equaled the requirements of a listed impairment; (4) could return to her past
relevant work; and (5) if not, could perform any other work in the national economy.” Id.
Substantial evidence means “such evidence as a reasonable mind might accept as
adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176
(4th Cir. 2001) (interval citations and quotation marks omitted). “If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there is substantial evidence.” Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to wehther a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether (the claimant) is disabled, but whether the ALJ’s
finding that [the claimant] is not disabled is supported by substantial evidence and was reached
based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996).
Sentence Six Remand
Claimant submitted medical records from David Dascal, M.D., dated March 16, 2010,
and Community Radiology, dated April 5, 2012, to the Appeals Council along with his
representative brief dated May 24, 2012. On May 18, 2013, the Appeals Council stated that it
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had received the additional evidence which it made part of the record as Exhibits C19E3 and
C14F (Tr. at 4). The Notice of Appeals Council Action stated that “We found no reason under
our rules to review the Administrative Law Judge’s decision” (Tr. at 1-3).

Both parties

acknowledge that the Appeals Council need only consider additional evidence if it is new
material and relates to the period on or before the date of the ALJ’s decision.” Wilkins v,
Secretary of Health & Human Serv., 953 F.2d 93, 95-96 (4th Cir. 1991) (citing Williams v.
Sullivan, 905 F.2d 214, 216 (8th Cir. 1990)). The parties disagree as to whether the additional
evidence meets these criteria. However, it is up to the Appeals Council to decide in the first
instance whether the additional evidence meets these criteria and will be considered. See Meyer
v. Astrue, 662 F.3d 700, 705-706 (4th Cir. 2011) (noting that where additional evidence is
submitted to the Appeals Council, “the Appeals Council first determines if the submission
constitutes ‘new and material’ evidence that ‘relates to the period on or before the date of the
[ALJ’s] hearing decision’”) (quoting 20 C.F.R. § 404.970(b)). If the Appeals Council concludes
that the additional evidence is new and material and relates to the period before the ALJ’s
decision, the Appeals Council must then consider the new evidence along with the entire record
in deciding whether to grant review of the ALJ’s decision. Wilkins, 953 F.2d. at 95.
The additional evidence, Exhibit C14F, consists of two lumbar spine MRIs dated March
16, 2010, and April 5, 2012 (Tr. at 660-662). The lumbar spine MRI, dated March 16, 2010,
from David Dascal, M.D., Neuroradiologist, reported degenerative disc change at L4-5 and L5S1 and mild bulging of the disc at L4-5 without canal stenosis (Tr. at 661). The lumbar spine
MRI, dated April 5, 2012, from Vijay Ramakrishman, M.D., reported significant disc desiccation

3 Although the medical records from David Dascal, M.D., are dated March 16, 2010, the Order of Appeals Council
making the additional evidence part of the record incorrectly states that the medical records are dated March 16,
2012 (Tr. at 4).

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at L5-S1 causing moderate to marked biforaminal impingement, right greater than left, and
moderate biforaminal impingement at L4-5 secondary to disc bulge (Tr. at 660). The additional
evidence has not been addressed by a fact-finder. The Fourth Circuit has noted that a lack of
additional fact finding regarding new evidence “does not render judicial review “impossible”- as
long as the record provides “an adequate explanation of the Commissioner’s decision.” Parker
v. Colvin, Case No. 1:11-cv-746 (M.D. North Carolina, September 4, 2014) (citing Meyer, 662
F.3d at 707 (quoting DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983)) (internal brackets
omitted)). However, where new evidence competes with the evidence underlying an ALJ’s
decision, a situation arises in which “no fact finder has made any finding as to the [new
evidence] or attempted to reconcile that evidence is quintessentially the role of the fact finder,”
the Court “must remand the case for further fact finding” in such an instance. Id.
Credibility
A two-step process is used to determine whether a claimant is disabled by pain. First,
objective medical evidence must show the existence of a medical impairment that reasonably
could be expected to produce the pain alleged. 20 C.F.R. '' 404.1529(b) and 416.929(b) (2009);
SSR 96-7p, 1996 WL 374186 (July 2, 1996); see also, Craig v. Chater, 76 F.3d 585, 594 (4th
Cir. 1996). If such an impairment is established, then the intensity and persistence of the pain
and the extent to which it affects a claimant=s ability to work must be evaluated. Craig, 76 F.3d
at 595. When a claimant proves the existence of a medical condition that could cause pain, Athe
claimant=s subjective complaints [of pain] must be considered by the Secretary, and these
complaints may not be rejected merely because the severity of pain cannot be proved by
objective medical evidence.@ Mickles v. Shalala, 29 F.3d 918, 919 (4th Cir. 1994). Objective
medical evidence of pain should be gathered and considered, but the absence of such evidence is
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not determinative. Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir. 1990). A claimant=s symptoms,
including pain, are considered to diminish his capacity to work to the extent that alleged
functional limitations are reasonably consistent with objective medical and other evidence. 20
C.F.R. '' 404.1529(c)(4) and 416.929(c)(4) (2013). Additionally, the regulations provide that:
[w]e will consider all of the evidence presented, including information about your
prior work record, your statements about your symptoms, evidence submitted by
your treating, examining, or consulting physician or psychologist, and
observations by our employees and other persons. . . . Factors relevant to your
symptoms, such as pain, which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms.
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for
relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 or 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions
due to pain or other symptoms.

20 C.F.R. '' 404.1529(c)(3) and 416.929(c)(3) (2013).
SSR 96-7p repeats the two-step regulatory provisions:
First, the adjudicator must consider whether there is an underlying
medically determinable physical or mental impairment(s)--i.e., an impairment(s)
that can be shown by medically acceptable clinical and laboratory diagnostic
techniques--that could reasonably be expected to produce the individual=s pain or
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other symptoms. * * * If there is no medically determinable physical or mental
impairment(s), or if there is a medically determinable physical or mental
impairment(s) but the impairment(s) could not reasonably be expected to produce
the individual=s pain or other symptoms, the symptoms cannot be found to affect
the individual=s ability to do basic work activities.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the individual=s pain or other symptoms has
been shown, the adjudicator must evaluate the intensity, persistence, and limiting
effects of the individual=s symptoms to determine the extent to which the
symptoms limit the individual=s ability to do basic work activities. For this
purpose, whenever the individual=s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the adjudicator must make a finding on the credibility
of the individual=s statements based on a consideration of the entire case record.
SSR 96-7p, 1996 WL 374186, at *2. Significantly, SSR 96-7p requires the adjudicator to engage
in the credibility assessment as early as step two in the sequential analysis; i.e., the ALJ must
consider the impact of the symptoms on a claimant=s ability to function along with the objective
medical and other evidence in determining whether the claimant=s impairment is Asevere@ within
the meaning of the regulations. A Asevere@ impairment is one which significantly limits the
physical or mental ability to do basic work activities. 20 C.F.R. '' 404.1520(c) and 416.920(c).
Craig and SSR 96-7p provide that although an ALJ may look for objective medical
evidence of an underlying impairment capable of causing the type of pain alleged, the ALJ is not
to reject a claimant=s allegations solely because there is no objective medical evidence of the pain
itself. Craig, 76 F.3d at 585, 594; SSR 96-7p, 1996 WL 374186, at *2 (Athe adjudicator must
make a finding on the credibility of the individual=s statements based on a consideration of the
entire case record@). For example, the allegations of a person who has a condition capable of
causing pain may not be rejected simply because there is no evidence of Areduced joint motion,
muscle spasms, deteriorating tissues [or] redness@ to corroborate the extent of the pain. Craig,

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76 F.3d at 595. Nevertheless, Craig does not prevent an ALJ from considering the lack of
objective evidence of the pain or the lack of other corroborating evidence as factors in his
decision. The only analysis which Craig prohibits is one in which the ALJ rejects allegations of
pain solely because the pain itself is not supported by objective medical evidence.
Conclusion
In a recent, similar case, the Middle District of North Carolina held that a narrative report
prepared by the claimant’s treating physician after the ALJ rendered his decision, constitutes new
and material evidence. The new and material evidence had not been reviewed by a fact-finder,
the ALJ, therefore, the court remanded the case to the ALJ for further fact finding. Parker v.
Carolyn Colvin, Case No. 1:11-cv-746 (M.D. North Carolina, September 4, 2014). In the
present case, the additional evidence was considered by the Appeals Council, however, it
involves a competing opinion and relates to the credibility of the Claimant’s pain that may
require reconciliation by a fact-finder, therefore, the Court concludes that this matter requires
remand under sentence six of 42 U.S.C. § 405(g).
Claimant raises additional arguments as to why the ALJ’s decision is not supported by
substantial evidence. The Court declines to address these arguments, as they can be addressed
on remand.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is not supported by substantial evidence. Accordingly, by Judgment
Order entered this day, the Plaintiff’s Motion for Summary Judgment on the Pleadings is
GRANTED to the extent Claimant seeks remand and otherwise DENIED, this matter is

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REVERSED and REMANDED for further administrative proceedings pursuant to the sixth
sentence of 42 U.S.C. § 405(g) and this matter is DISMISSED from the docket of this Court.
The Clerk of this Court is directed to provide copies of this Order to all counsel of record.
Enter: September 30, 2014

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