Bonner v. Berryhill

• Decision Date: 14 August 2017
• Docket Number: CIVIL ACTION NO. 9:16-3445-MGL-BM
• Court: U.S. District Court — District of South Carolina
• Parties: LAMONT TIRRELL BONNER, Plaintiff, v. NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

LAMONT TIRRELL BONNER, Plaintiff, v. NANCY A. BERRYHILL,COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

CIVIL ACTION NO. 9:16-3445-MGL-BM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

August 14, 2017

REPORT AND RECOMMENDATION

The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).

Plaintiff applied for Disability Insurance Benefits (DIB) with a protective filing date of February 12, 2014, alleging disability since March 17, 1974 (date of birth)¹ due to lumbar and cervical pain related to herniated discs and sprain; left shoulder pain; headaches; thoracic pain; and muscle spasms. (R.pp. 140-141, 166, 177-183). Plaintiff's applications were denied initially and upon reconsideration. (R.pp. 87-97). Plaintiff then amended his alleged onset date to June 28, 2013, the date he was in an automobile accident, and requested a hearing before an Administrative LawJudge (ALJ), which was held on October 26, 2015. (R.pp. 20, 34-99, 193). The ALJ thereafter denied Plaintiff's claim in a decision dated December 14, 2015. (R.pp. 20-29). The Appeals Council denied Plaintiff's request for review, thereby making the determination of the ALJ the final decision of the Commissioner.

Plaintiff then filed this action in United States District Court, asserting that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further consideration, or for an outright award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

Scope of review

Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been 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 refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8^th cir. 2008)[Noting that the substantial evidence standard is even"less demanding than the preponderance of the evidence standard"].

The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

Discussion

A review of the record shows that Plaintiff, who was thirty nine (39) years old on June 28, 2013 (when he alleges he became disabled), completed the 12^th grade and has past relevant work experience as an audio/visual technician, parts checker in a factory, general laborer in quality control for a carpet cleaning company, and machine operator for a steel company. (R.pp. 152-156, 163, 167, 168). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff 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 at least twelve (12) consecutive months.

After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairment² of lumbar disc disorder status post fusion surgery on February 25, 2015, he nevertheless retained the residual functional capacity (RFC)to perform sedentary work³, limited to work that allows alternating between sitting and standing at will; no more than occasional pushing or pulling or operation of foot controls with the right lower extremity; no climbing of any ladders, ropes or scaffolding; no more than only occasional climbing of ramps or stairs; no more than frequent balancing; no more than occasional stooping and crouching; no more than brief ("brief" meaning no more than 10% of a typical work day) kneeling and crawling; and no more than occasional exposure to hazards like dangerous machinery or unprotected heights. (R.pp. 23-27). The ALJ further determined that, although these limitations precluded Plaintiff from performing his past relevant work, he could perform other representative occupations with these limitations, such as assembler (DOT # 713.687-018)⁴, sorter (DOT # 521.687-086)⁵, product processing or product finishing (DOT # 731.687-014)⁶, entry level jobs in the security field such as lobby attendant, gate attendant and security monitor (DOT # 379.367-010), and parking facilitycashier (DOT # 211.462-010), and was therefore not entitled to disability benefits.⁷ (R.pp. 28, 64-66).

Plaintiff asserts that in reaching this decision the ALJ committed reversible error by failing to consider the impact of Plaintiff's cervical disc disorder on his ability to work; by improperly evaluating Plaintiff's credibility; and that the ALJ's reasons for according "little weight" to the opinion of Dr. Susan Craig, Plaintiff's treating chiropractor, are not based on substantial evidence. Plaintiff further argues that remand is warranted with instructions to consider Plaintiff's treatment regimen on his ability to perform sustained work activities; and that the Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of the newly submitted evidence. After careful review and consideration of the record in this case and the arguments from the parties, the undersigned is constrained to agree with the Plaintiff that the Appeals Council committed reversible error in its evaluation of the evidence submitted by Plaintiff on appeal, thereby requiring a remand for further consideration of Plaintiff's claim.

As part of his appeal of the decision in this case, Plaintiff submitted additional evidence to the Appeals Council which included records from Dr. Andres Munk, an orthopedic spine surgeon, showing that Plaintiff underwent surgery on his back approximately two weeks after the ALJ's decision. See generally, (R.pp. 494-498). Pursuant to 20 C.F.R. §404.970

(b) If new and material evidence is submitted, the Appeals Council shall consider the additional evidence . . . where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate theentire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.

20 C.F.R. § 404.970(b).

In order to be "new" evidence, the evidence must not be "duplicative or cumulative"; and in order to be "material", there must be a "reasonable possibility that it would have changed the outcome". Wilkins v. Secretary of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). This evidence was obviously "new", since it was not evidence that had been considered by the ALJ. It was also "material", as it references a surgery that Plaintiff had on his back only a few weeks after the decision was issued, and is a medical record showing that Plaintiff's condition was of such a severity as to require surgery not long after the hearing in this case, and with respect to the specific condition addressed by the ALJ in his findings, and which would appear to directly contradict the finding of the ALJ that "the medical evidence of record suggests that the bulk of [Plaintiff's] impairments were acute and have dramatically improved since the motor vehicle accident. . . ." (R.p. 26).

The ALJ stated in his decision that when Plaintiff applied for disability, he "would not have known the degree of improvement that he would have following his lumbar disorder fushion performed on February 25, 2015." (R.p. 24). The ALJ also references a purported discrepancy between Plaintiff's testimony describing his typical pain level as 6/10, as compared to Dr. Martin Kornblum's notation on September 22, 2015, that Plaintiff was still struggling with pain at 4/10, inferring that Plaintiff's testimony regarding the extent of his pain and limitation was not entirely credible. (R.pp. 24-25). The ALJ then essentially relies on the findings and opinion of Dr. Kornblum to find that Plaintiff's condition improved sufficiently after his accident and initial surgery on February 25, 2015 such that his condition was not disabling. See (R.pp. 26, 485-491). However, inthe records submitted to the Appeals Council, Dr. Munk⁸ notes on December 9, 2015 (5 days before the ALJ issued his decision) that Plaintiff continued to experience "relatively constant" pain that was worse with sitting and taking a step, and opines that Plaintiff was "symptomatic enough at this point that he...