United States District Court, W.D. Virginia, Roanoke Division
TAMMY W. AKERS, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
ROBERT S. BALLOU, Magistrate Judge.
Plaintiff Tammy W. Akers ("Akers") filed this action challenging the final decision of the Commissioner of Social Security ("Commissioner") finding her not disabled and therefore ineligible for disability insurance benefits ("DIB") under the Social Security Act ("Act"). 42 U.S.C. §§ 401-433. Akers alleges that the Administrative Law Judge ("ALJ") that heard and decided her claim committed error on numerous grounds. The focus of this opinion, however, is on a single, dispositive issue: whether additional evidence of shoulder and wrist surgery performed a few months after the ALJs decision necessitates remand for further administrative consideration. I conclude that remand of the Commissioners decision is proper in light of the additional evidence. Accordingly, I RECOMMEND DENYING the Commissioners Motion for Summary Judgment (Dkt. No. 26), GRANTING IN PART Akers' Motion for Summary Judgment (Dkt. No. 16), and reversing and remanding this case for further administrative consideration consistent with this Report and Recommendation.
STANDARD OF REVIEW
This Court limits its review to a determination of whether substantial evidence exists to support the Commissioners conclusion that Akers failed to demonstrate that she was disabled under the Act. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In cases such as this, where the claimant has submitted additional evidence to the Appeals Council, and the Appeals Council considered that evidence, this court must review the record as a whole, including the new evidence, to determine whether substantial evidence supports the Commissioners findings. Wilkins v. Secy, Dept of Health and Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991).
Akers protectively filed for DIB on September 16, 2008, claiming that her disability began on January 1, 2008. R. 62. The state agency denied her application at the initial and reconsideration levels of administrative review. R. 86-88, 93-94. On August 5, 2010, ALJ Joseph T. Scruton held a hearing to consider Akers' disability claim. R. 33-56. Akers was represented by an attorney at the hearing, which included testimony from Akers and vocational expert ("VE") Mark A. Hileman. R. 33-56.
On September 17, 2010, the ALJ entered his decision analyzing Akers' claim under the familiar five-step process and denying her claim for benefits. R. 11-28. The ALJ found that Akers suffered from the severe impairments of uterine fibroid tumors, status post attempted hysterectomy in 2007, endometriosis, back strain, depression, anxiety, and hypertension and diabetes - both under intermittent control. R. 16. The ALJ determined that Akers' symptoms related to her shoulder strain and other ailments were non-severe "as they have been responsive to treatment and/or cause no more than minimally vocationally relevant limitations." R. 16. The ALJ further found that Akers' severe impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 17. The ALJ concluded that Akers retained the residual functional capacity ("RFC") to perform a range of sedentary work, and specifically that:
The claimant would be capable of lifting/carrying 10 pounds; standing/walking for 2 hours in a normal 8-hour workday; and sitting for 6 hours in a normal 8-hour workday. She would require work that does not require constant handling and fingering; she would require work that allowed for very brief in-place shifting of positions or posture and very brief standing up from a seated position; and she is able to mentally accomplish routine, repetitive work tasks and to maintain attention and concentration for at least 2 hour periods at a time without significant work break.
R. 19. The ALJ determined that Akers could not return to her past relevant work as a cashier/checker, sewing machine operator, and store laborer (R. 27), but that Akers could work at jobs that exist in significant numbers in the national economy, such as a call-out operator, addresser, and pharmaceutical packager. R. 28. Thus, the ALJ concluded that Akers was not disabled. R. 28. On June 21, 2012, the Appeals Council denied Akers' request for review (R. 1-4), and this appeal followed.
Akers contends that her claim should be remanded for further administrative consideration on the basis of additional medical records that were not before the ALJ, but were later submitted to the Appeals Council. Specifically, Akers identifies a series of medical records that show that she underwent shoulder and wrist surgery only months after the ALJs decision to deny benefits. In his decision denying benefits, the ALJ found that Akers' shoulder strain was not a severe impairment. The Appeals Council considered the additional evidence documenting surgery, but summarily found that the records did not provide a basis for changing the ALJs decision. R. 2. I find that in light of this additional evidence regarding shoulder surgery, remand is proper to consider the evidence within the record as a whole.
When deciding whether to grant review, the Appeals Council must consider additional evidence, "if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJs decision." Wilkins v. Secy, Dept of Health and Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991). Evidence is new if it is not duplicative or cumulative. Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome. Id.
When the Appeals Council denied Akers' request for review, the ALJs decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. As such, this Court must "review the record as a whole, including the new evidence, in order to determine whether substantial evidence supports the [Commissioners] findings. Wilkins, 953 F.2d at 96. "However, the Fourth Circuit has also admonished that it is the role of the ALJ, and not reviewing courts, to resolve conflicts in the evidence." Davis v. Barnhart, 392 F.Supp.2d 747, 751 (W.D. Va. 2005)(citing Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996)). Thus, when faced with new evidence, a court must reconcile its duty under Wilkins to review the entire record including the new evidence to determine if there is a reasonable possibility that it would change the outcome, with its obligation under Smith to abstain from making credibility determinations and resolving factual conflicts. Davis, 392 F.Supp.2d at 751.
Courts in this district have achieved that balance by reviewing the record as a whole to determine if the new evidence is contradictory, presents material competing testimony, or calls into doubt any decision grounded in the prior medical reports. If the new evidence creates such a conflict, there is a reasonable possibility that it would change the outcome of the case, and the case must be remanded to the Commissioner to weigh and resolve the conflicting evidence. If such conflicts are not present, the case can be decided on the existing record without a remand. Id . (citing Bryant v. Barnhart, No. 6:04cv000017, 2005 WL 1804423, *5 (W.D. Va. Jan 21, 2005); Smallwood v. Barnhart, No. 7:03cv00749, slip op. at 2 (W.D. Va. ...