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Thomas Owen Evans, Iv v. Michael J. Astrue

September 14, 2012

THOMAS OWEN EVANS, IV, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael F. Urbanski United States District Judge

By: Michael F. Urbanski United States District Judge

MEMORANDUM OPINION

This social security disability appeal is before the court for review of the Report and Recommendation issued in this case by the magistrate judge on May 18, 2012, in which it is recommended that this matter be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration. The Commissioner has filed an objection to the Report and Recommendation pursuant to Federal Rule of Civil Procedure 72(b). For the reasons set forth below, the court finds the Commissioner's objection to the Report and Recommendation to be well-taken. As such, the recommendation that this case be remanded to the Commissioner will be rejected and the Commissioner's decision will be affirmed.

I.

Plaintiff Thomas O. Evans, IV, was 37 years old as of his alleged onset date of June 30, 2005. He has a master's degree and spent two years studying in a doctoral program in English. He previously worked as an adjunct faculty member at James Madison University. Evans filed applications under both Title II and Title XVI of the Social Security Act alleging disability as a result of his bipolar disorder. He appeared before an administrative law judge ("ALJ") at a hearing held on June 7, 2010. The ALJ determined that Evans' affective disorder, hernias and hypothyroidism were all severe impairments. In an exhaustive opinion, the ALJ discussed Evans' treatment history with his psychiatrist, Dr. Eagle, and his primary care physician, Dr. Yoder. The ALJ found that Evans has the residual functional capacity ("RFC") to perform light work with moderate limitations in his ability to understand, remember and complete detailed instructions; maintain attention and concentration for extended periods; work in coordination with or in proximity to others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; and accept instructions and respond appropriately to criticism from supervisors, so that supervisory correction should be constructive and non-confrontative. The ALJ further stated that Evans "may have difficulty recalling long or complex directions but could concentrate for two-hour periods but would benefit from short breaks throughout the day in order to re-focus his attention, and would work best in an uncrowded environment to avoid being distracted by others." (R. 26.) Given this RFC assessment, the ALJ determined that Evans could not perform his past relevant work as a JMU instructor. Relying on testimony from a vocational expert, the ALJ found that there are other jobs that exist in significant numbers in the national economy that Evans can perform. Therefore, the ALJ concluded that Evans was not disabled under the Act.

Evans submitted to the Appeals Council a letter dated September 1, 2010, which was written by Dr. Eagle to Evans' former attorney.*fn1 In this letter, Dr. Eagle discussed the ALJ's determination that Evans is not disabled. Dr. Eagle acknowledged the ALJ's "quite lengthy and very complete" recitation of Evans' medical history and stated:

In terms of commentary, it is clear that the patient does have a Bipolar I Disorder. It has taken some time to ultimately convince him of this and to obtain his cooperation in taking necessary medication, i.e. lithium carbonate. There are other medications that can also be used but he is currently under treatment with lithium carbonate. He has, in terms of history provided to me, had difficulty in maintaining many attempts at employment, and in my knowledge of him and understanding of his condition, it is my opinion that, though he has very high intellectual capacity, he has a distinct inability to apply that in many aspects of commonsense usage, and for that matter, has had difficulty in managing any number of work situations. Additional information has occurred here recently, with relevance to his ability to function in an academic capacity. The patient was able to obtain a position with a local college teaching several classes. At the time that he was to start the teaching of the classes, he had a psychological distintegration, i.e. a "psychological meltdown", and simply could not show up for his teaching assignment. After consideration of this in contact with him and also with information provided by his mother, I did write an explanation to the community college regarding this bipolar disorder and his inability to function sufficiently to carry forth with the academic duties.

Whether Mr. Evans can manage light work with limited work requirements on an ongoing basis is still, I feel, a significant question. Given his intellectual capacity and his academic knowledge, one would consider that he would be able to pursue both further academic education and also academic endeavor, but the most recent happening seems even to preclude that. . . . Regardless of the conclusion regarding his disability under Social Security Act, I do intend treating him for his bipolar condition, and will, of course, encourage him in any effort toward gainful employment. In any case, his history does tend to suggest against success in that. I still maintain that the best possible pursuit for him would be in the academic realm, although the recent incident does not support that well either.

(R. 510-11.) The Appeals Council considered this letter from Dr. Eagle but found that it did not provide a basis for changing the ALJ's decision. (R. 1-2.) The ALJ's decision then became the final decision of the Commissioner, and Evans filed the instant appeal.

This matter was referred to the magistrate judge for proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The parties filed cross motions for summary judgment and supporting memoranda and the magistrate judge issued his Report and Recommendation on May 18, 2012. In his Report and Recommendation, the magistrate judge concluded that the ALJ did not err by failing to giving controlling weight to the disability opinion of Evans' treating psychiatrist, Dr. Eagle, finding that "[a]lthough the plaintiff may disagree with the ALJ's non-disability determination, the record more than adequately demonstrates that it was reached only after weighing the relevant factors. It is simply not the role of the court to re-weigh the conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner." Report & Recommendation, Dkt. # 16, at 9-11. No objection was filed to the magistrate judge's finding in this regard, and this portion of the Report and Recommendation will be adopted.

The magistrate judge went on to conclude, however, that Dr. Eagle's September 1, 2010 letter discussing the ALJ's decision in this case, which was submitted to the Appeal's Council for consideration, is new and material evidence that warrants remand under Wilkins v. Sec'y, Dep't of Health & Human Services, 953 F.2d 93 (4th Cir. 1991) (en banc). The Commissioner objects to this portion of the Report and Recommendation. Having reviewed this issue de novo*fn2 and read the relevant portions of the record, the court finds the Commissioner's decision to be supported by substantial evidence. Therefore, the magistrate judge's recommendation to remand will be rejected and the Commissioner's decision affirmed.

II.

A.

When deciding whether to grant review, the Appeals Council must consider evidence submitted to it "if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision." Wilkins, 953 F.2d at 95-96. Evidence is new if it is not duplicative or cumulative. Id. at 96. Evidence is material "if there is a reasonable possibility that the new evidence would have changed the outcome." Id. at 96. When the Appeals Council denied review, the ALJ's decision became the final decision of the Commissioner, Wilkins, 953 F.2d at 96, which then became subject to judicial review. 42 U.S.C. ยง 405(g). The Fourth Circuit requires that reviewing courts consider the record as a whole, including the new evidence, in order to determine whether the Commissioner's decision is supported by substantial evidence. See ...


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