Opinion
C. A. 9:20-03031-RBH-MHC
07-19-2021
Samuel Levon Harrelson, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Samuel Levon Harrelson filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the Commissioner) denying his claims for Disability Insurance Benefits (DIB) under Title II and Supplemental Security Income (SSI) under Title XVI of the Social Security Act. This case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.).
I. BACKGROUND
Plaintiff applied for SSI and DIB in March 2017, alleging disability beginning October 7, 2016. See R.pp. 15, 234-41. Plaintiff's claims were denied initially and upon reconsideration, and Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). R.pp. 15, 116-17, 151-52, 167-69. A hearing, at which Plaintiff and a vocational expert testified, was held before ALJ Edward Morriss on May 29, 2019. R.pp. 34-63. ALJ Morriss thereafter denied Plaintiffs claims in a decision issued on September 26, 2019, finding that Plaintiff was not disabled from the alleged onset date through the date of the decision. R.pp. 15-27.
The Appeals Council denied Plaintiffs request for review on July 16, 2020, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. R.pp. 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision. The Commissioner filed an answer and the Social Security Administrative Record (ECF Nos. 11 & 12) on March 2, 2021, and Plaintiff filed his brief on April 16, 2021 (ECF No. 15).
In his brief, Plaintiff asserts that his “sole issue of contention in this appeal is that the [ALJ's] decision granted no weight, and failed to even address or acknowledge, the residual functional capacity (“RFC”) [for a range of sedentary work] from a previous [ALJ] decision involving this Plaintiff dated July 24, 2015. ECF No. 15 at 14. As discussed further below, ALJ Edward T. Morriss (Morriss) found in a September 2019 decision that Plaintiff could perform a range of light work. Plaintiff contends that if ALJ Morriss had adopted the prior RFC for sedentary work as formulated by ALJ Peggy McFadden-Elmore (McFadden-Elmore) in her July 2015 decision (see R.p. 72), Plaintiff would have been found disabled as of his 50th birthday in April 2019 pursuant to Rule 201.10 of the Medical-Vocational Guidelines (also known as the Grids). Id. at 16; see 20 C.F.R. Pt. 404, Sub pt. P, App. 2, Rule 201.10. Plaintiff requested that the Court reverse the decision of the ALJ and award benefits as of his 50th birthday or alternatively remand this case to the Commissioner for additional proceedings. Id. at 19.
Sedentary work is defined as lifting no more than ten pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. §§ 404.1567(a), 416.967(a).
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
On May 5, 2021, the Commissioner filed a contested motion requesting that this Court, pursuant to the fourth sentence of 42 U.S.C. § 405(g), enter judgment with an order of reversal remanding this case to the Commissioner for further administrative proceedings. See ECF No. 16. Plaintiff filed a response on May 19, 2021 (ECF No. 17), and a motion to amend/correct the alleged onset date of disability on May 20, 2021 (ECF No. 18). On May 26, 2021, the Commissioner filed a reply to the motion to remand with a response in opposition to the motion to amend/correct. ECF No. 19.
II. COMMISSIONER'S MOTION FOR ENTRY OF JUDGMENT WITH ORDER OF REMAND
In the motion for remand, the Commissioner contends that further administrative action is warranted and provides that if this case is remanded, an ALJ will hold a new hearing and issue a new decision that will re-evaluate Plaintiff's RFC with consideration of the 2015 ALJ decision in accordance with Acquiescence Ruling (AR) 00-1(4). Plaintiff argues that remand for additional proceedings is unnecessary and this Court should award benefits effective the date Plaintiff turned 50 years of age.
The Social Security Administration (SSA), following the Fourth Circuit's decisions in Lively v. Sec. of Health & Human Servs., 820 F.2d 1391, (4th Cir. 1987) and Albright v. Commissioner, 174 F.3d 473 (4th Cir. 1999), issued AR 00-1(4) to address the evidentiary weight the Commissioner would accord prior RFC determinations during subsequent disability applications. Specifically, this AR provides:
The ALJ in a prior decision found that Lively, who was under the age of 55 at the time, could perform light work but was not disabled under the Grids. Lively, 820 F.2d at 1391-92. Approximately two weeks after the ALJ's decision, Lively turned 55 years old, such that the Grids would direct a disability finding if Lively was limited to light work. Id. at 1392. Lively filed a second application for benefits, but the ALJ denied the claims finding that Lively could perform medium work. The ALJ did not consider the prior ALJ decision because agency policy at the time provided that when adjudicating a subsequent disability claim, the agency considered the claim for the unadjudicated period de novo. Id. The Fourth Circuit reversed the district court's affirmance of the ALJ's decision noting that the record contained “no evidence of any such miraculous recovery” within the two-week period and explaining that to justify a change from the prior ALJ decision, evidence not considered in the earlier proceeding must demonstrate improvement. Id. After Lively, the Commissioner promulgated AR 94-2(4), 1994 WL 321954, providing that the ALJ “must adopt [a prior ALJ finding] with respect to the unadjudicated period unless there is new and material evidence related to such a finding.” Id.
The ALJ found in a May 1992 decision that Albright was not disabled at step two because he had no severe impairment. After Albright filed subsequent applications for benefits, the ALJ issued an October 1994 decision finding that Albright was not disabled solely based on the prior ALJ decision, concluding that absent new and material evidence regarding the severity of Albright's alleged impairment, AR 94-2(4) dictated that Albright's claims again be denied at step two. The district court remanded the case to the Commissioner, finding in affect that, in promulgating AR 94-2(4), the SSA interpreted the holding in Lively too broadly. The Fourth Circuit disagreed with the Commissioner that Lively abrogated the established law of preclusion, noted that Lively was based on principles of finality and fundamental fairness drawn from § 405(h), and stated that the result in Lively was “best understood as a practical illustration of the substantial evidence rule.” Albright 174 F.3d at 477. It was noted that although a claimant's condition “very likely remains unchanged within a discrete two-week period” such as was the case in Lively, “we grow ever less confident as the timeframe expands, ” and in Albright's case (where the period exceeded three years) “our swagger becomes barely discernable.” Id. In affirming the district court's judgment, the Fourth Circuit concluded that “the Commissioner, in denying Albright's claim solely on the basis of a prior adverse adjudication involving an earlier time period, [] interpreted too broadly our precedent on which the denial was premised.” Id. at 474.
When adjudicating a subsequent disability claim ..., an [ALJ] determining whether a claimant is disabled during a previously unadjudicated period must consider ... a prior finding [of a claimant's RFC or other finding required at a step in the sequential evaluation process] as evidence and give it appropriate weight in light of all relevant facts and circumstances. In determining the weight to be given such a prior finding, an [ALJ] will consider such factors as: (1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.AR 00-1(4), 2000 WL 43774, at *4.
AR 94-2(4) was rescinded by AR 00-1(4).
The parties in this case appear to agree that ALJ Morriss erred in formulating Plaintiff's RFC because he failed to consider ALJ McFadden-Elmore's July 2015 decision in making his RFC determination. See AR 00-1(4); Albright, 174 F.3d at 477-78. However, the parties disagree as to whether this action should be remanded to the Commissioner for further proceedings or reversed and remanded for an award of benefits.
In support of the request for an award of benefits, Plaintiff asserts that his RFC has either diminished, or at worst, has not changed, since July 2015. ECF No. 15 at 16-17; Plaintiff's Reply, ECF No. 17 at 2. He contends that the severe impairment Judge Morriss labels “degenerative disc disease/arthritis” (R.p. 17) is an impairment (consisting of back pain, joint pain, and swelling of his extremities) that would get worse or at least stay the same. Id.; see, e.g, Tucker v. Colvin, No. 0:15-CV-03750-RBH, 2017 WL 382429, at * 4 (D.S.C. Jan. 27, 2017) (noting that the court could not conclude that the ALJ adequately explained why she assigned no weight to the prior findings in light of the fact that the claimant's conditions, which included chronic pain syndrome and degenerative changes of the cervical spine, lumbar spine, and knees, were ones that “would get worse, or at least stay the same, over time.”). In support of this assertion, Plaintiff notes that during the relevant time period, his primary care physician Dr. Winston D. McIver (McIver) prescribed Hydrocodone for Plaintiff's pain and opined that Plaintiff could stand/walk less than two hours in an eight-hour day and could not lift over ten pounds (which would preclude light work). R.pp. 598-600. Plaintiff also argues that Dr. Regina A. Roman's September 2017 consultative examination supports a finding that his RFC diminished or at least did not change after the July 2015 RFC finding. Dr. Roman noted that Plaintiff had diminished range of motion of his lumbar spine, especially with flexion; paravertebral muscle tenderness in his lumbar spine; pain while in the supine position with elevation of his right leg; 4/5 feeling in his right leg; and very hyperactive (4+) right leg lower extremity reflexes. See R.pp. 486, 491.
Additionally, Plaintiff argues that his condition diminished or at least had not changed because he suffered cardiac arrest with an anoxic brain injury in October 2016 that required a two-week hospitalization with placement of stents. ECF No. 15 at 17, ECF No. 17 at 2; R.pp. 366431, 456. Plaintiff testified that he continued to have cardiac-related symptoms including that his heart raced at times and did not beat fast enough on other occasions, his cardiologist wanted to put in a pacemaker, and he had been unable to get a pacemaker or further care because of his significant medical debt. (R.pp. 44-45).
The Commissioner contends that further proceedings are needed because there is a factual issue for the agency to resolve (whether the decision of ALJ Morriss to deviate from the July 2015 RFC is supported by substantial evidence). In particular, the Commissioner argues that Dr. Roman's consultative examination and the opinions of the state agency physicians could provide substantial evidence to support an improvement in condition. The Commissioner also contends that Plaintiff's assertion he should be found disabled at age 50 pursuant to the Grids ignores substantial evidence in the record supporting a finding that, despite Plaintiff's cardiac condition, he could still perform a limited range of light work. The Commissioner also asserts that ALJ Morriss found that Plaintiff had severe impairments including coronary artery disease status post stent placement and arthritis and determined that he could perform a range of light work. ALJ Morriss also noted that although Plaintiff had a myocardial infarction requiring a lengthy hospitalization and placement of stents in October 2016, the record indicated that “several weeks following the myocardial infarction, [Plaintiff] reported feeling ‘fine' to examiners, and denied experiencing any chest pain or shortness of breath. [R.p. 570].” R.p. 21.
State agency physicians Dr. Isabella McCall (in September 2017) and Dr. Cynthia Heidrich (in January 2018) opined that Plaintiff could perform light work with some postural restrictions. See R.pp. 23, 94-97, 128-130.
The Commissioner also appears to argue that remand for further proceedings is appropriate because in the case (Tucker} relied upon by Plaintiff for the proposition that his back impairment was a condition that would worsen or at least stay the same, the action was initially remanded for further administrative action (not reversed for an award of benefits). See Tucker v. Colvin, 2017 WL 382429, at *5. The Commissioner also argues, citing Cuffee v. Berryhill, 680 Fed.Appx. 156 (4th Cir. 2017), that the passage of nearly four years between ALJ McFadden-Elmore's July 2015 decision and Plaintiff's 50th birthday in April 2019 constituted an extended length of time that could allow the ALJ to not adopt the prior determination. See Cuffee, 680 Fed.Appx. at 160 (noting that “the ‘extended length of time [more than two years] elapsed' since the prior RFC determination” supported a decision not to follow the prior RFC determination). Finally, the Commissioner argues that even if Plaintiff's impairment damage “may be permanent and not subject to the passage of time, the RFC is based on [a claimant's] functional limitations - not [his] injuries alone.” Id. (emphasis in original).
“Whether to reverse and remand for an award of benefit or remand for a new hearing rests within the sound discretion of the district court.” Smith v. Astrue, No. 10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) (citing Edwards v. Bowen, 672 F.Supp. 230, 237 (E.D. N.C. 1987)); see also Evans v. Heckler, 734 F.2d 1012, 1015 (4th Cir. 1984). When “[o]n the state of the record, [plaintiff's] entitlement to benefits is wholly established, ” reversal for award of benefits rather than remand is appropriate. Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980). “The Fourth Circuit has explained that outright reversal-without remand for further consideration-is appropriate under sentence four ‘where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose'” and “where a claimant has presented clear and convincing evidence that he is entitled to benefits.” Goodwine v. Colvin, No. 3:12-2107-DCN, 2014 WL 692913, at *8 (D.S.C. Feb. 21, 2014) (citing Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974)); Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 333 (4th Cir. 1992). An award of benefits is appropriate when “a remand would only delay the receipt of benefits while serving no useful purpose, or a substantial amount of time has already been consumed.” Davis v. Astrue, C/A No. 07-1621-JFA, 2008 WL 1826493, at *5 (D.S.C. Apr. 23, 2008) (citing Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir. 1982)). “On the other hand, remand is appropriate ‘where additional administrative proceedings could remedy defects....'” Davis v. Astrue, 2008 WL 1826493, at *5 (quoting Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)). Remand, rather than reversal, is required, however, when the ALJ fails to explain his reasoning and there is ambivalence in the medical record, precluding a court from “meaningful review.” Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
Here, it cannot be determined if the decision of ALJ Morriss to deviate from the July 2015 RFC finding is supported by substantial evidence. As discussed above, there is conflicting evidence in the record and the ALJ needs to re-evaluate Plaintiff's RFC pursuant to AR 00-1(4). Unlike the situation in Lively, where the time period of the later decision began only two weeks after the previous decision such that it was very likely that the claimant's condition remained unchanged, Plaintiff's initial alleged onset date (October 2016) in the current application was more than a year after the prior decision (July 2015), and he turned 50 nearly four years later. Additionally, the evidence of record may indicate that some of Plaintiff's previous severe impairments improved for a period of time after the previous ALJ's decision. Although not raised by the parties, it is noted that Plaintiff testified he returned to work a couple of months after the July 2015 decision and continued to work until suffering a heart attack in October 2016. See R.pp. 38-41. The j ob performed during that time period appears to have been performed at the medium, not sedentary level, as Plaintiff was required to stand and/or walk for six to eight hours in an eighthour day and to frequently lift up to twenty-five pounds and at times up to fifty pounds. See R.pp. 60-61, 302-03. It may be that these impairments later worsened, but this is something for the ALJ to consider upon remand in light of the prior RFC determination, the relevant medical evidence, and other evidence of record.
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c).
Pursuant to the above standards, remand for further proceedings, rather than outright remand, is recommended as there is not clear and convincing evidence that Plaintiff is entitled to benefits and additional proceedings may remedy defects in this case. See, e.g., Goodwine, 2014 WL 692913, at *8. When “there is conflicting evidence and essential factual issues have not been resolved, remand rather than reversal is appropriate.” Maland v. Saul, No. CV 6:19-3220-JMC-KFM, 2020 WL 8713678, at *3 (D.S.C. Aug. 18, 2020), report and recommendation adopted, No. 6:19-CV-03220-JMC, 2021 WL 631918 (D.S.C. Feb. 18, 2021) (collecting cases). Having carefully considered the parties' submissions and the applicable law, the undersigned recommends that the Commissioner's motion for entry of judgment with order of remand pursuant to sentence four of 42 U.S.C. § 405(b) be granted.
III . MOTION TO AMEND ONSET DATE OF DISABILITY
On May 20, 2021, Plaintiff filed a motion to amend his onset date of disability to May 29, 2019 (a time after he turned 50 years old). ECF No. 18. The Commissioner opposes this motion, noting that Plaintiff has cited to no authority that the Court may do so and arguing that granting this motion would usurp the agency's role. The Commissioner alternatively argues that even if the request to amend the alleged onset date is granted, Plaintiff's request for payment of benefits still fails for the reasons argued above as to the Commissioner's motion for remand and Plaintiff has pointed to no medical treatment records or other evidence of record that supports his claim to allow a finding that he was disabled during the relevant time period.
Here, as discussed above, this action should be remanded to the Commissioner to determine whether Plaintiff is disabled. The decision to allow amendment of the alleged onset date is an administrative determination that Plaintiff may request after remand. See, e.g, Lewis v. Saul, No. 1:17CV1115, 2020 WL 33118 (M.D. N.C. Jan. 2, 2020) (“Plaintiff essentially asks the Court to amend her onset date . . . and then apply the [Grids] to conclude that benefits should be awarded. These are administrative determinations to be made by the factfinder in the first instance, not by this Court.”). It is, therefore, recommended that Plaintiff's motion to amend his onset date of disability be denied without prejudice.
IV. RECOMMENDATION
It is RECOMMENDED that Plaintiff's motion to amend the onset date of disability (ECF No. 18) be DENIED without prejudice.
It is also RECOMMENDED that the Commissioner's motion for entry of judgment with order of remand pursuant to sentence four of 42 U.S.C. 405(g) (ECF No. 16) be GRANTED.
The parties are directed to the next page for their rights to file objections to this recommendation.
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. Am, 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).