United States District Court, Western District of Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
Joel C. Hoppe, United States Magistrate Judge
Plaintiff Harry Hamilton Lotts, Jr., brought this action for review of the Commissioner of Social Security’s (“Commissioner”) decision denying his claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). On appeal, Lotts argues that the ALJ failed to properly evaluate the opinion of a physician’s assistant and that the Appeals Council failed to properly evaluate the opinion of his treating physician. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g), and this case is before the undersigned magistrate judge by referral pursuant to 28 U.S.C. § 636(b)(1)(B). After carefully reviewing the record, I find that the ALJ’s decision was based on substantial evidence and respectfully recommend that the Commissioner’s decision be affirmed.
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner’s final determination that a person is not entitled to disability benefits. See 42 U.S.C. §§ 405(g); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court’s role, however, is limited-it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether substantial evidence supports the ALJ’s factual findings and whether the ALJ applied the correct legal standards. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, ” id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–89 (1951). Ultimately, this Court must affirm the ALJ’s factual findings if “‘conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.’” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
A person is “disabled” if he or she is unable engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act’s regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and if not (5) whether he or she can perform other work. See 20 C.F.R. § 404.1520(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460–462 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.
II. Procedural History
Lotts was born in 1964 (Administrative Record, hereinafter “R.” 38), and during the relevant period was considered a “younger” individual under the Act. 20 C.F.R. § 404.1563(b), (c). Lotts has a high school education and has worked as an insulation installer, pizza delivery driver, and forklift operator. (R. 38, 156, 205–08.) Lotts alleges that he became disabled on January 10, 2009, due to a degenerative back disorder and inflammatory bowel disorder. (R. 23, 25, 155.) After the Commissioner rejected Lotts’s application initially and upon reconsideration, a hearing was convened before an Administrative Law Judge (“ALJ”) at Lotts’s request. (R. 23, 44–47.)
On March 28, 2012, the ALJ issued his decision finding Lotts not disabled under the Act. (R. 23–39.) The ALJ found that Lotts had severe discogenic/degenerative back disorder and inflammatory bowel disorder, but that his impairments did not meet or medically equal the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 25–26.) The ALJ found that Lotts retained the residual functional capacity to perform light work except that he could stoop, crawl, kneel, crouch, or climb ramps or stairs only occasionally and never climb ladders, ropes, or scaffolds. (R. 26–38.) In his RFC assessment, the ALJ considered the opinions of several doctors, including Lotts’s primary care physician Dr. John O. “Rob” Marsh, as well as the opinion of physician’s assistant Kenneth Perkins, who works for Marsh. (R. 37–38.) Although the ALJ found Lotts incapable of his past relevant work, he also found, based on the testimony of a vocational expert, that Lotts could perform jobs existing in significant numbers in the national economy. (R. 38–39.) He therefore found Lotts not disabled under the Act. (R. 39.)
On April 5, 2012, Lotts requested that the Appeals Council review the ALJ’s unfavorable decision. (R. 19.) While the case was pending before the Appeals Council, Lotts’s counsel submitted a letter dated May 17, 2012, from Dr. Marsh in which Dr. Marsh opines that Lotts’s condition has worsened over the last year rendering him “unemployable.” (R. 648.) The Appeals Council denied review. (R. 1–5.) In its notice informing Lotts of that decision, the Appeals Council indicated that it “considered” Dr. Marsh’s letter, and also “considered whether the [ALJ]’s action, findings, or conclusion is contrary to the weight of evidence of record, ” but that it “found that this information does not provide a basis for changing the [ALJ]’s decision.” (R. 1–2.) Lotts sought review in this court of the ALJ’s decision, which became final by virtue of the Appeals Council’s denial of review.
Lotts makes two arguments on appeal. First, he argues that the ALJ erred in failing to properly consider the opinion of Kenneth Perkins, a physician’s assistant who works for his treating physician Dr. Marsh. (Pl. Br. 16–17.) Second, he argues that the Appeals Council erred in failing to consider Dr. Marsh’s May 17 letter, and that this letter constitutes new, material, and time-period relevant evidence that warrants remand under Wilkins v. Secretary of Health and Human Services, 953 F.2d 93 (4th Cir. 1991) (en banc). (Pl. Br. 9–16.)
A. Opinion of Physician’s ...