United States District Court, W.D. Virginia, Danville Division
RICHARD M. BARTS, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner, Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
JOEL C. HOPPE, Magistrate Judge.
Plaintiff Richard M. Barts asks this Court to review the Commissioner of Social Security's ("Commissioner") final decision terminating his disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Barts argues that the Appeals Council misapplied the law when it refused to consider additional evidence (Pl. Br. 5-9), and that the Administrative Law Judge's ("ALJ") decision to terminate his benefits should be reversed based on that evidence (Pl. Br. 9-10). He urges the Court to reverse the Commissioner's decision and to reinstate benefits, or to remand his case for the ALJ to consider the additional evidence. (Pl. Br. 11.) This Court has authority to decide Barts's case under 42 U.S.C. § 405(g), and his case is before me by referral under 28 U.S.C. § 636(b)(1)(B) (ECF No. 18).
After reviewing the administrative record, the parties' briefs, and the applicable law, I find that the Commissioner's decision is supported by substantial evidence. Therefore, I recommend that the Court DENY Barts's Motion for Summary Judgment or for Remand (ECF No. 14), GRANT the Commissioner's Motion for Summary Judgment (ECF No. 16), AFFIRM the Commissioner's final decision terminating Barts's benefits, and DISMISS this case from the Court's active docket.
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner's final decision terminating a person's disability benefits. See 42 U.S.C. § 405(g); Guiton v. Colvin , 546 Fed.App'x 137, 140 (4th Cir. 2013). 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. See Guiton , 546 Fed.App'x at 140-41 (citing Hancock v. Astrue , 667 F.3d 470, 472 (4th Cir. 2012)). Instead, the Court asks only whether the ALJ applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Id. at 140.
"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 to "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). A disabled person generally is entitled to benefits until he or she dies, reaches retirement age, or is no longer disabled. 20 C.F.R. § 404.316(b)(1)-(3). To determine if a person remains disabled, the Commissioner asks, in order, whether the person: (1) is working; (2) has an impairment that meets or equals an impairment listed in the Act's regulations; (3) has experienced a "medical improvement" in the disabling impairment; (4) has experienced an improvement in his or her ability to work; (5) meets any "exceptions to medical improvement, " if applicable; (6) still has a severe impairment; (7) can return to his or her past relevant work; and, if not (8) can do other work that exists in the national economy. 20 C.F.R. § 404.1594(f)(1)-(8); see also Mullins v. Astrue , No. 2:08-cv-4, 2008 WL 4642988 (W.D. Va. Oct. 21, 2008).
The fact that a person was once "disabled" does not give rise to a presumption that he or she remains disabled. 42 U.S.C. § 423(f). However, the Commissioner bears the burden of "show[ing] that a medical improvement has occurred and that the improvement relates to the claimant's ability to work." Edwards v. Astrue , 4:12-cv-5, 2012 WL 6082898, at *3 (W.D. Va. Dec. 6, 2012) (Kiser, J.) (citing Lively v. Bowen , 858 F.2d 177, 181 n.2 (4th Cir. 1988)). A person's disability "ends" when he or she is again "able to engage in substantial gainful activity." 42 U.S.C. § 423(f)(1)(B). If the claimant produces evidence that he or she cannot return to his or her past relevant work, "the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform considering" his or her age, education, work experience, and limitations. Hancock v. Astrue , 667 F.3d 470, 472-73 (4th Cir. 2012) (internal quotation marks omitted).
II. Procedural History
Barts originally applied for DIB on May 5, 2005, alleging disability beginning April 4, 2005. ( See R. 318.) He said that he could not work anymore because of chronic obstructive pulmonary disease ("COPD"), asthma, seizures, and diabetes. ( See R. 402.) On June 16, 2005, the Commissioner found Barts disabled by COPD alone because that impairment "result[ed] in a residual functional capacity [of] less than sedentary." (R. 226.) In mid-2010, the state agency conducted a routine continuing-disability review. ( See generally R. 331-73.) After a consultative exam and hearing, state-agency reviewers determined that Barts's disability "ended" as of September 1, 2010. ( See R. 261-63, 266-73, 358.) Barts promptly pursued his administrative appeals.
Barts appeared with counsel at an administrative hearing on June 20, 2011. ( See R. 224.) He testified as to his respiratory symptoms and the limits those symptoms had on his ability to perform his past work and current daily activities. ( See generally R. 239-51.) A Vocational Expert also testified as to the type of work Barts did before he became disabled. ( See R. 252-57.) In a written decision dated July 14, 2011, the ALJ agreed that Barts's disability ended as of September 1, 2010. (R. 230.) He upheld the termination of benefits at Step Eight. ( See id .)
The ALJ found that Barts's COPD, while still "severe, " had medically improved by September 1, 2010, and that this improvement increased Barts's residual functional capacity ("RFC") enough so that he could reenter the workforce. ( See 226-30.) Specifically, the ALJ found that Barts could do a limited range of sedentary work if he avoided concentrated exposure to respiratory irritants and poor ventilation. (R. 227.)
When Barts asked the Appeals Council to review the ALJ's decision, he also submitted over 200 pages of additional medical records dated May 2005-January 2012. ( See R. 1, 7-220.) The Appeals Council explained that it
looked at the additional evidence you submitted from Duke Medicine dated October 17, 2011 through January 23, 2012 and from Danville Regional Medical Center dated August 9, 2011 through January 25, 2012. The Administrative Law Judge decided your case through December 31, 2009, the date you were last insured for disability benefits. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled at the time you were last insured for disability benefits.
(R. 1.) The Appeals Council declined to review the ALJ's decision on March 29, 2013, and this appeal followed.
Barts argues that the Appeals Council misapplied 20 C.F.R. § 404.970(b) when it refused to consider three medical records dated after the ALJ's decision (Pl. Br. 5-8), and that the ALJ's decision should be reversed "based on" those records (Pl. Br. 9-10). Alternatively, he asks this Court to "remand [his] case back to the Commissioner for further administrative proceedings." (Pl. Br. 11.) The Commissioner responds that the "primary issue" for this Court to decide is whether substantial evidence supports the ALJ's decision that Barts's "condition improved as of September 1, 2010, to the extent that he could return to a limited range of sedentary work." (Def. Br. 2.) She also argues that the Appeals Council properly declined to consider Barts's medical records because they were not "reasonably related to the period adjudicated by the ALJ." (Def. Br. 8.)
A. The Benchmark Date
Before turning to the to the parties' arguments, I must clear up some confusion about the significance of certain dates in the original record. On July 14, 2011, the ALJ decided that Barts's "disability ended as of September 1, 2010." (R. 224, 231.) But on March 29, 2013, the Appeals Council said that the ALJ "decided [Barts's] case through December 31, 2009, the date [he was] last insured for disability benefits." (R. 1.) The Commissioner now argues that the ALJ actually decided the case through July 14, 2011, and that the Appeals Council's reference to December 31, 2009, was a harmless "mistake." (Def. Br. 7 n.2.) Barts also urges the Court to use July 14, 2011, as the benchmark date because 20 C.F.R. § 404.970(b) requires the Appeals Council to consider any new and material evidence that relates to the period on or before the date of the ALJ's decision. ( See Pl. Br. 9.)
I agree that the Appeals Council made a mistake. Nothing in the ALJ's decision suggests that he decided Barts's case though December 31, 2009. ( See generally R. 225-31.) On the contrary, the ALJ found that Barts's disability ended as of September 1, 2010-several months after his last-insured date. Nor can I find a law, regulation, or ruling that suggests a person's entitlement to benefits necessarily ends on his last-insured date even if he is still disabled. Contra 20 C.F.R. § 404.316(b)(1)-(3).
In any event, the Appeals Council rejected Barts's request for review after "appl[ying] the laws, regulations, and rulings in effect as of the date [it] took [that] action, " March 29, 2013. (R. 1.) Binding agency rulings in effect on March 29, 2013, instructed agency adjudicators, including the Appeals Council, to consider any relevant evidence of the beneficiary's condition "that relates to the period on or before the date of the ALJ's decision." Soc. Sec. R. 13-3p, 2013 WL 785484, at *1 (Feb. 21, 2013) (changing a policy that limited review in termination cases to a beneficiary's condition "at the time of the initial cessation determination, " and not through the date of the Commissioner's administratively "final" decision). Thus, I agree with the parties that the Appeals Council was required to consider any new and material evidence related to Barts's respiratory impairment on or before July 14, 2011.
B. The ALJ's Decision
On June 16, 2005, the Commissioner found Barts disabled by COPD because that impairment "result[ed] in a residual functional capacity [of] less than sedentary." (R. 226.) The ALJ handling Barts's termination appeal in July 2011 was asked to decide whether there had "been any medical improvement" in Barts's COPD and, "if so, whether this medical improvement [was] related to [his] ability to work." 20 C.F.R. § 404.1597(a); see also 42 U.S.C. § 423(f)(1)(A). If it was, the ALJ also needed to determine whether Barts could return to his past work, or, if not, whether he could perform other work in the national economy. See 42 U.S.C. § 423(f)(1)(B); 20 C.F.R. § 404.1594(b)(3).
"Medical improvement" means "any decrease in the medical severity" of an "impairment(s) [that] was present at the time of the most recent favorable medical decision that [the person was] disabled or continued to be disabled." 20 C.F.R. § 404.1594(b)(1). ALJs determine "medical improvement" by comparing "prior and current medical evidence" that must show "changes (improvement) in the symptoms, signs, or laboratory findings associated" with the impairment(s) in question. 20 C.F.R. § 404.1594(c)(1) (emphasis added); see also Latchum v. Astrue , No. 4:07-cv-42, 2008 WL 3978081, at *3 (W.D. Va. Aug. 26, 2008) (Kiser, J.) (holding that the Commissioner need only produce "sufficient medical evidence" of improvement and that the ALJ need not base his decision on the same type of medical evidence that the person used to establish the previous disability). A medical improvement is "related" to the person's ability to work "if there has been a decrease in the severity" of an impairment "and an increase in [the person's] ...