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Hamm v. Colvin

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

December 23, 2014

DAVID L. HAMM, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

REPORT AND RECOMMENDATION

JOEL C. HOPPE, Magistrate Judge.

Plaintiff David L. Hamm brought this action for review of the Commissioner of Social Security's (the "Commissioner") decision denying his claim for supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. § 1381-1383f. This Court has authority to decide Hamm's case under 42 U.S.C. § 1383(c)(3), and his case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 12. After considering the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that remand for consideration of new evidence is appropriate. Therefore, I recommend that the Court remand this case to the Commissioner under sentence six 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. § 1383(c)(3); 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 the ALJ applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. 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); 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)). 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. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(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. § 416.920(a)(4); Heckler v. Campbell, 461 U.S. 458, 460-62 (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

Hamm protectively filed for SSI on December 30, 2008. Administrative Record ("R.") 26. He was 48 years old and qualified as a "younger person" under 20 C.F.R. § 416.963(c). R. 34. Hamm had worked as a farm laborer, furniture packer and loader, tire hanger, metal fabricator helper, woodworking machine operator, loader operator, and building maintenance laborer. Id. He alleged disability beginning December 15, 2009, [1] because of a back injury. R. 84. A state agency denied his applications initially and on reconsideration. R. 26.

Hamm appeared with counsel at an administrative hearing on August 20, 2010. Id. He testified to his prior work history, alleged impairments, and limitations in daily activities. R. 44-60. A Vocation Expert ("VE") testified to the types of jobs Hamm might perform given his age, education, work history, and physical limitations. R. 60-67.

In a written decision dated October 29, 2010, the ALJ found that Hamm was not disabled under the Act. R. 35. He found that Hamm had not engaged in substantial gainful activity since his application date and that he suffered from the severe impairments of a back disorder and chronic obstructive pulmonary disease ("COPD"), neither of which met or equaled a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 28-29. He then determined that Hamm had the residual functional capacity ("RFC")[2] to perform light work[3] except that he can only occasionally climb, kneel, and crawl and he should avoid respiratory irritants and concentrated exposure to workplace hazards. R. 29-34. The ALJ found that with this RFC, Hamm was unable to perform any of his past relevant work, but was able to perform jobs that exist in significant numbers in the national economy, such as housekeeper, cafeteria attendant, and assembler. R. 34-35. He therefore found that Hamm was not disabled and denied his application. R. 35.

The Appeals Council granted review of Hamm's application. R. 8. Hamm submitted additional medical records to the Appeals Council, which it determined were about a later time and returned to him. Id. In a written decision issued June 6, 2012, the Appeals Council agreed with the ALJ's decision at each of the five steps and adopted his finding that Hamm was not disabled under the Act. R. 8-11. This appeal followed.

III. Discussion

Hamm requests reversal of the Commissioner's decision, arguing that the ALJ's RFC determination goes against the weight of the evidence, especially as it does not conform to the opinion of his treating physician, which he asserts the ALJ improperly weighed. Pl. Br. 10-15. Alternatively, Hamm requests that this Court remand his case for consideration of the additional evidence he submitted to the Appeals Council and with this appeal.[4] Id. at 8-10.

Considering just the evidence before the ALJ, I cannot fault his evaluation of Hamm's treating physician's opinion. An ALJ must give a treating-source opinion "controlling weight" if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and... not inconsistent with the other substantial evidence in the record." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); 20 C.F.R. § 416.927(c)(2). An ALJ may reject a treating physician's opinion in whole or in part if there is "persuasive contrary evidence" in the record. Hines v. Barnhart, 453 F.3d 559, 563 n.2; Mastro, 270 F.3d at 178. When an ALJ gives less than ...


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