Opinion
C. A. 9:20-cv-00229-DCN-MHC
09-02-2021
Kenneth Erwin, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Kenneth Erwin (Erwin) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
I. BACKGROUND
A. Procedural History
On April 11, 2014, Erwin filed applications for disability insurance benefits (DIB) and supplemental security income (SSI). R.p. 164, 168. His applications were denied initially and upon reconsideration. R.p. 10. He requested an administrative hearing, and on August 23, 2016, ALJ James Martin held a hearing at which Erwin, who was represented by counsel, and a vocational expert (VE) testified. R.pp. 33-70, 132-33. On October 5, 2016, the ALJ issued a decision in which he found that Erwin was not disabled. R.pp. 10-21.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 15.
Erwin requested review of the ALJ's decision by the Appeals Council, and on July 29, 2017, the Appeals Council denied Erwin's request. R.pp. 1-6. Erwin appealed to District Court, and on July 9, 2018, the District Court reversed the Commissioner's decision and remanded the decision for further evaluation of the evidence. R.pp. 597-98. On March 15, 2019, the ALJ held a second administrative hearing, at which Erwin, who was represented, and a VE testified. R.pp. 458-90. On May 8, 2019, the ALJ issued a decision in which he found Erwin was not disabled. R.pp. 432-48. Although he found that Erwin had severe impairments, he determined that these impairments did not meet or equal the severity of one of the listed impairments. R.pp. 435-37. Despite Erwin's severe impairments, the ALJ found that Erwin was capable of performing a limited range of light work with postural, environmental, and mental limitations. R.p. 437. The Appeals Council denied Erwin's request for review, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. R.pp. 411-17. See 20 C.F.R. § 404.981. This appeal followed.
B. Background Facts
To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below. Erwin completed ninth grade and was previously employed as a construction worker. R.p. 193. In a Function Report completed in conjunction with his appeal, Erwin reported that he cared for his personal needs with some assistance from his wife, watched television, attended church, and socialized with his wife and grandchildren. R.pp. 791, 794. He testified that he spent his days in his wife's barber shop, talking with her customers. R.p. 470. He sometimes visited his daughter and his grandchildren, and occasionally dined out with his wife. R.p. 477.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving DIB and SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the exertion required to perform the claimant's past relevant work exceeds his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g); Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. DISCUSSION
A. ALJ's findings
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Erwin was disabled from the alleged onset date of September 6, 2013. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018 (Exhibit 15D).
2. The claimant has not engaged in substantial gainful activity since September 6, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, borderline intellectual functioning, panic disorder, major depressive disorder, and posttraumatic stress disorder (“PTSD”) (20 CFR 404.1520(c) and 416.920(c)).
4. The 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 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404. 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant ha residual functional capacity to perform light work as defined in 20 404.1567(b) and 416.967(b) (lifting and/or carrying 20 pounds occasionally a pounds frequently; sit, stand, and/or walk for six hours each in an eight-hour push and pull as much as he could lift and/or carry) except that the claiman never climb ladders, ropes, or scaffolds; the claimant can occasionally climb r or stairs, stoop, kneel, crouch, and crawl; the claimant could frequently balanc claimant could frequently be in an environment with unprotected heights moving mechanical parts; the claimant can sustain concentration, persistence pace sufficient to perform unskilled work activities; with respect to u judgment, the claimant can perform simple work-related decisions; and claimant can occasionally interact with the public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.156 416.965).
7. The claimant was born on August 3, 1971 and was 42 years old, which is de as a younger individual age 18-49, on the alleged disability onset date (20 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in Englis CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disa because using the Medical-Vocational Rules as a framework supports a findin the claimant is “not disabled, ” whether or not the claimant has transferable job (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and res functional capacity, there are jobs that exist in significant numbers in the nat economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416 and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Sec Act, from September 6, 2013, through the date of this decision (20 404.1520(g) and 416.920(g)).R.pp. 434-447.
B. Erwin's contentions of error
Erwin maintains that the ALJ's decision contains three errors that warrant remand. First, Erwin argues that the ALJ failed to provide adequate support for his RFC determination. Second, Erwin argues that the ALJ erred at step three of the sequential evaluation process. Third, Erwin contends that the Appeals Council should have considered new evidence he submitted to them after the ALJ's decision. For the following reasons, the Court recommends affirming the ALJ's decision.
1. The ALJ's RFC determination is supported by substantial evidence.
Erwin maintains that the ALJ “failed to provide any discussion or explanation for why his RFC findings exceeded the limitations in the opinions he accepted in formulating his RFC, ” leaving this Court “to guess” at how the ALJ arrived at his decision. ECF No. 16 at 33. Specifically, Erwin argues that the RFC exceeded the limitations found by two of the state agency psychological consultants, who both found that Erwin could “understand and remember short and simple instructions” but “could not understand and remember detailed instructions” and further found that Erwin could “carry out very short and simple instructions” but could “not carry out detailed instructions.” ECF No. 16 at 32-33 (citing R.pp. 551, 570). Erwin argues that the ALJ “failed to reconcile” these portions of the cited state agency psychological consultants' opinions with the ALJ's RFC. ECF No. 16 at 32. In his Response, Erwin clarifies that, “[w]ithout explaining why pertinent portions of the non-examining limitations were excluded from the RFC, the ALJ's decision is unsupported.” ECF No. 18 at 5.
The relevant portion of the RFC found that Erwin could “sustain concentration, persistence, and pace sufficient to perform unskilled work activities; with respect to use of judgment, the claimant can perform simple work-related decisions; and the claimant can occasionally interact with the public.” R.p. 437.
Erwin's arguments are without merit. As an initial matter, the ALJ adequately explained his reasoning with regard to Erwin's mental health. The ALJ meticulously detailed the evidence in the record, R.pp. 441-43, and ultimately explained:
The deficits in recall and the claimant's borderline intellectual functioning has been taken into account in limiting him to unskilled work activities and simple work-related decisions. Further, the claimant is limited to only occasional interaction with the public due to his panic disorder and PTSD with findings of an abnormal mood/affect. Further limitations are not warranted by the record. Overall, it appears that the claimant's mental symptoms are fairly well controlled on medication. The abnormalities noted on the last two consultative psychological evaluations are not seen in the notes of the claimant's treating providers, which typically show normal memory, attention, thought processes, cognitive functioning, and speech.R.p. 443 (emphasis added). As a result, this Court is not “left to guess” at how the ALJ came to his RFC determination. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (noting, in conducting an RFC analysis, an ALJ must identify both the evidence that backs his conclusion, and “build an accurate and logical bridge from [that] evidence to his conclusion” (alteration in original) (quoting Monroe, 826 F.3d at 189)).
Second, Erwin fails to explain how the ALJ's RFC finding, which found that Erwin could perform “unskilled work activities” and could perform “simple work-related decisions” exceeds or is somehow inconsistent with the state agency psychological consultants' finding that Erwin could “understand and remember short and simple instructions” but “could not understand and remember detailed instructions” and that he could “carry out very short and simple instructions” but could “not carry out detailed instructions.” Indeed, the ALJ specifically stated that he was “limiting [Erwin] to unskilled work activities and simple work-related decisions.” R.p. 443 (emphasis added). Limiting Erwin in this manner inherently precludes a finding that he could understand, remember, and carry out detailed instructions-which is precisely what the state psychological consultants found. See R.pp. 551, 570 Consequently, the RFC does not propose that Erwin was capable of more than what the state agency psychological consultants found him capable of-both determinations can easily be understood as complementary, rather than inconsistent. Moreover, the fact that the RFC determination does not perfectly track a medical opinion does not automatically give rise to the presumption that the two opinions are inconsistent.
The Court notes that, in fact, Erwin is inconsistent in how he characterizes these findings. In his Response, Erwin seems to suggest that the limitations found by the state psychological consultants “exceed the ALJ's finding” rather than the ALJ's finding exceeding the limitations found by the state psychological consultants. See ECF No. 18 at 5 (emphasis added).
Finally, to the extent Erwin appears to argue that the ALJ was required to include every aspect of the state psychological consultants' opinions in the RFC, he is mistaken. The ALJ determines the RFC-it is not automatically dictated by the opinions in the record. 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2) (noting the RFC determination is an issue reserved for the Commissioner); see also SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996) (noting that “the final responsibility for deciding [an individual's RFC] is reserved to the Commissioner”). This is true even in circumstances where, as here, the ALJ gave the medical opinions “great weight.” See, e.g., Coble v. Saul, No. 1:19-CV-628, 2020 WL 5763463, at *7 (M.D. N.C. Sept. 28, 2020) (“[T]he ALJ was not required to adopt every portion of Dr. Johnson's assessment even though the ALJ gave it significant weight.”); Newton v. Saul, No. CV 9:18-1608-CMC-BM, 2019 WL 3769880, at *9 (D.S.C. July 11, 2019) (noting, in a case where the ALJ gave great weight to a consultative psychological examiner, “the ALJ is not required to adopt an opinion in its entirety or include every degree of limitation in an RFC”), report and recommendation adopted, No. CV 9:18-1608-CMC, 2019 WL 3766480 (D.S.C. Aug. 8, 2019); see also Wilkinson v. Comm'r Soc. Sec., 558 Fed.Appx. 254, 256 (3d Cir. 2014) (“[N]o rule or regulation compels an ALJ to incorporate into an RFC every finding made by a medical source simply because the ALJ gives the source's opinion as a whole ‘significant' weight.”). Thus, the ALJ did not err in making his RFC determination. To the contrary, the ALJ adequately explained the RFC, and the Court is not left to guess at how he came to his conclusions. The Court therefore recommends affirming on this issue.
Erwin appears to only take issue with the mental portion of the RFC. See ECF No. 16 at 32-33. However, the Court notes that Erwin presents a block quotation to SSR 96-8p in his brief, which details how an ALJ should go about assessing a claimant's RFC. That being said, Erwin offers no actual argument on any error committed by the ALJ, and it is not this Court's job to manufacture one on his behalf. See, e.g., Coardes v. Express Emp. Pros., No. CV 2:16-3408-PMD-KDW, 2017 WL 2639994, at *9 (D.S.C. May 30, 2017) (“It is not the court's place to make additional arguments for the parties.”), report and recommendation adopted, No. CV 2:16-3408-PMD-KDW, 2017 WL 2629548 (D.S.C. June 19, 2017); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”). To the extent Erwin's brief could be interpreted as arguing that the ALJ failed to adhere to SSR 96-8p, the ALJ agrees with the Commissioner's arguments and adopts them as if stated fully herein. ECF No. 17 at 14-15.
2. Erwin failed to show he satisfied a Listing at step three.
Erwin next argues that the ALJ erred at step three of the sequential evaluation process. Specifically, Erwin maintains that he satisfied 20 C.F.R., pt. 404, subpt. P, app. 1, § 1.04 (Listing 1.04), and argues that the ALJ “summarily rejected the positive criteria” and did not properly analyze or address the listing evidence under Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). ECF No. 16 at 33-36. The Court disagrees.
At step three, the ALJ compares a claimant's conditions to the Listings of Impairment to determine if the conditions are medically severe enough to warrant a presumption of disability. To qualify as disabled under a Listing, a claimant must present evidence of specific medical findings that satisfy a particular Listing. Sullivan v. Zebley, 493 U.S. 521, 530-32 (1990). An impairment that manifests only some criteria does not qualify. Id. at 530. The burden of proof is on the claimant to show how he or she meets a particular Listing. See 20 C.F.R. §§ 404.1512(a), 416.912(a) (claimant bears the burden of providing sufficient evidence to establish entitlement to disability); Diaz v. Colvin, No. CIV.A. 8:13-705-RMG, 2014 WL 3887856, at *5 (D.S.C. Aug. 5, 2014) (“Through the fourth step, the burden of production and proof is on the claimant.”).
Listing 1.04 covers disorders of the spine, and a claimant is entitled to a “c presumption that he is disabled if he can show that his disorder results in compromise root or the spinal cord.” Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013) (citing Part 404, Subpart P, App. 1, § 1.04). Listing 1.04A further provides the criteria a clai meet or equal to merit a conclusive presumption of disability arising out of compromise root or the spinal cord:
Erwin focuses only on the requirements in Listing 1.04A in his brief, see ECF No. 16 at 35, and, in his Response, seemingly concedes that he does not meet or equal Listing 1.04B or 1.04C. See ECF No. 18 at 6 (“[T]his is not a requirement for 1.04A and Erwin does not have to meet or equal [L]isting 1.04A, 1.04B, and 1.04C to satisfy the [L]isting; the requirements of [L]isting 1.04A alone are sufficient.” (emphasis added)).
[e]vidence of nerve root compression characterized by [1] neuro-anaton distribution of pain, [2] limitation of motion of the spine, [3] motor loss (atrop with associated muscle weakness or muscle weakness) accompanied by sensory reflex loss and, if there is involvement of the lower back, [4] positive straight-] raising test (sitting and supine)[.]Id. (quoting 20 C.F.R. Part 404, Subpart P, App. 1, § 1.04A).
Here, the ALJ found:
The claimant's lumbar degenerative disc disease does not meet or equal the requirements of Listing 1.04A because there is no evidence of nerve root compression until March 2019 (Exhibit 26F). In accordance with AR 15-1(4), I have examined whether all of the medical criteria in paragraph A are present within a continuous 12-month period, not necessarily simultaneously or in close proximity. Although the claimant had positive straight leg raise testing and reduced sensation at his consultative physical evaluation (Exhibit 16F), notes from other providers show no such findings. Moreover, the claimant has no atrophy, normal strength, and normal reflexes (Exhibit 4F; Exhibit 7F; Exhibit 8F; Exhibit 11F; Exhibit 12F; Exhibit 13F). Considering this, I find that the evidence as a whole does not show that the claimant's disorder of the spine caused, or is expected to cause, nerve root compression continuously for at least 12 months.R.p. 435. First, the ALJ's findings are subject to meaningful review, and, second, Radford does not compel remand.
A review of the entire record demonstrates that substantial evidence supports the ALJ's conclusion that Erwin did not meet Listing 1.04A. The ALJ considered the evidence in the record and determined that although Erwin's lumbar degenerative disc disease was a severe impairment, it did not meet Listing 1.04A. Contrary to Erwin's contention, the ALJ did not summarily reject positive criteria; rather, when the decision is read as a whole, it is clear that the ALJ considered all of the pertinent evidence. See McCartney v. Apfel, 28 Fed.Appx. 277, 279 (4th Cir. 2002) (“As to McCartney's unsubstantiated claim that the ALJ must have analyzed the medical evidence at step three, rather than at step four, we agree with the district court that the ALJ need only review medical evidence once in his decision.”). Moreover, to the extent Erwin asserts that medical evidence is present to support Listing 1.04A-the ALJ concluded otherwise after considering all evidence in the record, and his decision is supported by such evidence. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996))). It is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. Id. (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].”).
Furthermore, Radford does not compel remand. In Radford, the Fourth Circuit Court of Appeals explained that a claimant may “prove a chronic condition by showing that [the claimant] experienced the symptoms over a period of time, as evidenced by a record of ongoing management and evaluation.” Radford, 734 F.3d at 294. The Fourth Circuit addressed Listing 1.04A and emphasized that “[t]he critical durational inquiry for purposes of awarding benefits is whether the impairment has lasted or is expected to last ‘for a continuous period of at least 12 months.'” Id. at 293 (citing 20 C.F.R. § 404.1509 and 42 U.S.C. § 423(d)(1)(A)). The Court held that a claimant needs to show that “each of the symptoms [under Listing 1.04A] are present, and that the claimant has suffered or can be expected to suffer from nerve root compression continuously for at least 12 months.” Id. at 294 (citing 20 C.F.R. § 404.1509).
Additionally, the Court found that despite the claimant in that case displaying symptoms related to nerve root impairment, the ALJ provided no basis for his step three finding, other than saying no state agency physician had concluded the claimant met or equaled a Listing. Id. at 29192. The Court explained, “[a] necessary predicate of engaging in substantial evidence review is a record of the basis for the ALJ's ruling. The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Id. at 295 (citations omitted). The Court found the ALJ's insufficient legal analysis made substantial evidence review impossible. Id.
Here, the ALJ properly considered the evidence as a whole, as evidenced by the numerous citations to exhibits, and adequately explained that the medical evidence did not establish that Erwin had nerve root compression of disabling severity (characterized by the requisite symptoms) continuously for at least 12 months. Thus, pursuant to Radford, the ALJ properly considered the duration requirement and, contrary to Erwin's allegation, did not base the decision on the fact that Erwin's symptoms were not “simultaneously present.” R.p. 435.Moreover, unlike in Radford, where the ALJ in that case failed to adequately explain his reasoning (which precluded meaningful review), this Court is not left to guess at how this ALJ came to his conclusion. See Radford, 734 F.3d at 295-96 (finding meaningful review under the substantial evidence standard was precluded where the ALJ's decision regarding the applicability of Listing 1.04A was “devoid of reasoning”). Accordingly, the Court recommends affirming on this issue.
Notably, the ALJ cited to AR 15-1(4) in discussing Listing 1.04(A). “AR” stands for “Social Security Acquiescence Ruling, ” and AR 15-1(4), “which is applicable to states in the Fourth Circuit, ” sets forth a two-step test for application of Listing 1.04A. See Acq. Ruling 15-1(4), 80 Fed. Reg. at 57420, 2015 WL 5564523. AR 15-1(4) was issued by the SSA in response to the Fourth Circuit's decision in Radford, see Amanda B. v. Berryhill, No. 1:18-CV-03687-JMC, 2020 WL 586671, at *5 (D. Md. Feb. 6, 2020), and thus it is clear that the ALJ considered (and ultimately correctly implemented) Fourth Circuit precedent when analyzing Listing 1.04(A).
3. Erwin failed to show good cause for submitting new evidence.
Finally, Erwin contends that the Appeals Council erred by not considering evidence that was submitted after the ALJ's decision. Specifically, Erwin submitted a medical source statement from Charles F. Wadee, M.D., dated June 26, 2019, which he maintained was “new and material evidence”-requiring the Appeals Council to consider it. ECF No. 16 at 37. Erwin contends that remand is warranted because Dr. Wadee's opinion “might” have affected the ALJ's decision. ECF No. 16 at 37-38.
When a claimant is dissatisfied with a hearing decision, he may request that the Appeals Council review that action. 20 C.F.R. §§ 404.967, 416.1467. Relevant here, the Social Security regulations provide, inter alia, that the Appeals Council will review a case if, “[s]ubject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). “Evidence is new . . . if it is not duplicative or cumulative, ” and “[e]vidence is material if there is a reasonable [probability] that the new evidence would have changed the outcome.” Wilkins v. Sec'y, Dep't of Health & Hum. Servs., 953 F.2d 93, 96 (4th Cir. 1991) (citations omitted).
Fourth Circuit precedent defined “material” as a reasonable possibility the new evidence would have changed the outcome of the case. See Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011). However, the most recent versions of 20 C.F.R. §§ 404.970, 416.1470 increase a claimant's burden from showing a reasonable possibility to a reasonable probability. See Howell v. Saul, No. 2:18-CV-01323-BHH-MGB, 2019 WL 3416613, at *8 n.6 (D.S.C. July 10, 2019), report and recommendation adopted, No. CV 2:18-1323-BHH, 2019 WL 3413244 (D.S.C. July 29, 2019).
However, the Appeals Council will only consider additional evidence that satisfies the requirements of 20 C.F.R. §§ 404.970(a), 416.1470(a) if the claimant first shows “good cause” for not submitting it to the SSA prior to the hearing. 20 C.F.R. §§ 404.970(b), 416.1470(b). That subsection provides:
(b) The Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in § 404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause;
(iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or
(v) You received a hearing level decision on the record and the Appeals Council reviewed your decision.20 C.F.R. §§ 404.970(b), 416.1470(b). The “good cause” requirement is a threshold requirement under the regulations effective January 1, 2017.
Here, in rejecting the evidence submitted by Erwin, the Appeals Council stated:
You submitted a medical source statement from Charles F. Wadee, M.D., dated June 26, 2019 (F Section, Attorney-Representative Supplied Evidence, uploaded
November 6, 2019, page 1 of 1). After considering your explanation as to why this information was not provided sooner (Exhibit 28B, page 2), we find that you did not have good cause for why you missed informing us about or submitting this evidence earlier. We did not exhibit this evidence.R.p. 412. Because the Appeals Council explicitly rejected the evidence on the basis of failing to satisfy the “good cause” threshold requirement, that is the dispositive issue before this Court. Cf. Rankin v. Saul, No. CV 1:19-1195-SVH, 2020 WL 702749, at *22 (D.S.C. Feb. 12, 2020) (declining to analyze whether a claimant showed “good cause” where “it [did] not appear the Appeals Council rejected the evidence for that reason”).
The Court finds that Erwin has failed to show “good cause” for not submitting Dr. Wadee's statement to the Agency prior to the hearing. See 20 C.F.R. §§ 404.970(b), 416.970(b). Like he argued to the Appeals Council, Erwin argues in his brief that “it was unforeseen that the ALJ would have rejected the opinion from Erwin's treating pain specialist, Dr. Jacobus, finding it was based on Mr. Erwin's subjective complaints.” ECF No. 16 at 39. Thus, the basis for Erwin's “good cause” argument is that he could not have anticipated that the ALJ would interpret the evidence in the record unfavorably against him. This explanation, which notably does not fit within any of the “unusual, unexpected, or unavoidable” circumstances noted in the nonexclusive list in the regulations, does not satisfy the “good cause” requirement. See 20 C.F.R. §§ 404.970(b), 416.1470(b). If it did, then any claimant who did not anticipate the possibility of an ALJ viewing evidence in an unfavorable light would have free reign to go out and obtain additional evidence in support of his or her position and submit it after the ALJ's decision. Indeed, a finding of “good cause” here would encourage claimants and their representatives to decline to complete the record prior to the hearing. Quite simply, an ALJ viewing evidence unfavorably is not unusual or unexpected and does not reach the high bar the regulations contemplate for “good cause.” See Howell, 2019 WL 3416613, at *11 (“The regulation provides claimants with a list of acceptable causes, all of which seem to suggest a fairly high bar with respect to justifying late submissions (e.g., serious illness, physical or mental limitation, unexpected circumstances, etc.).”).
Erwin also argues that “[s]ince the MRI happened the day before the opinion, Dr. Wadee was not able to provide an opinion based on the MRI prior to the ALJ hearing.” ECF No. 16 at 39. But this argument in unpersuasive, as Erwin advised the ALJ at the end of the administrative hearing that more evidence in the form of MRI results was forthcoming, but said nothing about an accompanying report by Dr. Wadee, even though he had a treating relationship with Erwin prior to the administrative hearing. R.p. 489; see 20 C.F.R. §§ 404.970(b)(3)(iv), 416.1470(b)(3)(iv) (noting an satisfactory example of good cause is when “[y]ou actively and diligently sought evidence from a source and the evidence was not received or was received less than [five] business days prior to the hearing” (emphasis added)).
Consequently, the undersigned simply cannot find that Erwin satisfied the burden set forth in §§ 404.970(b) and 416.1470(b), or that the Appeals Council erred in declining to consider and exhibit the additional opinion evidence of Dr. Wadee. The undersigned therefore recommends that the Court affirm the ALJ's decision.
IV. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).