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Harvey v. Colvin

United States District Court, W.D. Virginia, Harrisonburg Division

July 25, 2014

LARRY R. HARVEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

JOEL C. HOPPE, Magistrate Judge.

Plaintiff Larry R. Harvey 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, Harvey argues that the Commissioner erred in failing to consider the combined effects of his impairments, in failing to call a vocational expert, and in discounting the opinions of his treating physician and a consulting psychologist. Harvey also argues that the Administrative Law Judge ("ALJ") in this case is biased. Harvey requests that the Court reverse the Commissioner's decision and award benefits or, in the alternative, remand the case for further administrative proceedings.

After briefing was completed in this case, Harvey filed with this Court a notice of award of benefits from the Social Security Administration informing him that the Commissioner had approved a subsequent claim for benefits and found him disabled as of August 21, 2012-one day after the previous ALJ found him not disabled. Because the subsequent award of benefits and some medical evidence constitute new and material evidence and because Harvey had good cause for not presenting these records to the ALJ, I respectfully recommend that the Court deny without prejudice the parties' cross-motions for summary judgment, grant the Commissioner's motion to remand, and remand this case to the Commissioner pursuant to the sixth sentence of 42 U.S.C. § 405(g).

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) (DIB); 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 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

Harvey was born in 1955 (Administrative Record, hereinafter "R." 25), and during the relevant period was considered an "individual of advanced age" under the Act. 20 C.F.R. § 404.1563(b), (e). He has a General Equivalency Diploma ("GED") and in the past fifteen years has worked as a delivery driver, general manager at a car dealership, and contractor. (R. 148, 153-56.) He also graduated from the police academy and has worked as a law enforcement officer for 16 years. (R. 36, 48-49, 148.)

Harvey alleges that he became disabled on October 22, 2010, due to anxiety, depression, hypertension, and back pain. (R. 16-17, 26, 144, 147, 187.) After the Commissioner rejected Harvey's application initially and upon reconsideration, a hearing was convened before an Administrative Law Judge ("ALJ") at Harvey's request. (R. 14, 30-52.) Harvey testified at the hearing, but the ALJ did not call a vocational expert. (R. 30-52.)

On August 20, 2012, the ALJ issued his decision finding Harvey not disabled under the Act. (R. 14-26.) The ALJ found that Harvey suffered from severe anxiety and depression, but that Harvey's 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. 16-18.) The ALJ found that Harvey retained the capacity to perform simple unskilled work at all exertional levels, but with only occasional contact with the general public. (R. 19-25.) In reaching this conclusion, the ALJ considered and rejected opinions from Dr. David Leen, a psychologist the agency hired to perform a consultative examination of Harvey, and Dr. Deborah Nio, M.D., Harvey's primary care physician. (R. 24-25.) Although the ALJ found that Harvey cannot perform any of his past relevant work, he also found that Harvey could perform work that exists in significant numbers in the national economy. (R. 25-26.) The ALJ reasoned that the Medical Vocational Guidelines ("the Grids") would dictate a finding of not disabled for a person of advanced age who can perform unskilled work at all exertional levels, and Harvey's only additional limitation of at most occasional contact with the general public has "little or no effect on the occupational base of unskilled work at all occupational levels" according to Social Security Ruling 85-15. (R. 25-26.) When the Appeals Council denied Harvey's request for review, the ALJ's decision became the Commissioner's final decision. (R. 1-3.)

Harvey sought judicial review of the decision denying benefits on July 12, 2013. (ECF No. 1.) The Commissioner filed the administrative record on November 19, 2013, and both parties moved for summary judgment and filed briefs in support. (ECF Nos. 6, 9, 10, 13, 14.) Roughly a month and a half after the Commissioner filed her summary judgment brief, Harvey's attorney filed a notice indicating that Harvey had been found disabled and awarded benefits on a subsequent application. (ECF No. 16.) After oral argument, I ordered Harvey to file with the Court any additional evidence upon which the subsequent disability award was based. (ECF No. 19.) Harvey filed a brief and exhibits. (ECF No. 20.) In response, the Commissioner moved the Court to remand the case under sentence four of 42 U.S.C. § 405(g). (ECF No. 21.) Harvey opposes this motion. (ECF No. 24.)

III. Discussion

In his three-page brief, Harvey raises a number of arguments in a cursory fashion. He argues that the Commissioner erred in failing to consider the combined effects of his impairments, in failing to call a vocational expert, and in discounting the opinions of his treating physician and a consulting psychologist. (Pl. Br. 2.) He also argues that the ALJ in this case is biased. (Pl. Br. 2.) Each argument consists of one or two sentences with no citations to statutes, regulations, or case law. The Commissioner argues that Harvey has not adequately developed these arguments and that "substantial evidence supports the ALJ's finding that [Harvey] was not disabled under the Act." (Def. Br. 6, 7.) I find it unnecessary to address most of these ...


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