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Sodders v. Colvin

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

March 16, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


Robert S. Ballou United States Magistrate Judge

Plaintiff Dorethea Lynn Sodders (“Sodders”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) determining that she was not disabled and therefore not eligible for disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433. Specifically, Sodders alleges that the ALJ erred by failing to give the opinion of her treating and examining counselor appropriate weight and that additional evidence submitted to the Appeals Council warrants remand for consideration by the Commissioner. I agree that the additional evidence submitted to the Appeals Council is new, material, and should be considered by the Commissioner. Accordingly, I hereby DENY the Commissioner’s Motion for Summary Judgment (Dkt. No. 16), and GRANT in part Sodders’ motion for summary judgment (Dkt. No. 12), remanding this case for further administrative consideration consistent with this Memorandum Opinion.


This court limits its review to a determination of whether substantial evidence exists to support the Commissioner’s conclusion that Sodders failed to demonstrate that she was disabled under the Act.[2] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “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).


Sodders protectively filed her application for DIB on June 6, 2011. R. 79, 154-58. The Commissioner denied the application at the initial and reconsideration levels of administrative review. R. 94-98, 102-08. On July 22, 2013, a video hearing was held before Administrative Law Judge (“ALJ”) Mary C. Peltzer to consider Sodders’ disability claim. R. 39-69. Sodders was represented by an attorney at the hearing, which included testimony from vocational expert, Andrew Beale. Id.

On August 14, 2013, the ALJ entered her decision analyzing Sodders’ claim under the familiar five-step process, [3] and denying Sodders’ claim for disability. R. 16-38. The ALJ found that Sodders suffered from the severe impairments of migraine headaches, minor degenerative changes of the lumbar spine, chronic obstructive pulmonary disease (“COPD”), and mental disorders. R. 21. The ALJ found that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 22-23. The ALJ further found that Sodders retained the residual functional capacity (“RFC”) to perform light work, with occasional climbing of ramps/stairs; no climbing ladders/ropes/scaffolds; occasional balancing; frequent stooping, kneeling, crouching or crawling; no more than occasional exposure to extreme heat, humidity, respiratory irritants (such as dust and fumes), and workplace hazards (such as dangerous moving machinery), but no exposure to unprotected heights. R. 24. Based on this RFC, Sodders was incapable of returning to her past relevant work (R. 32), but could perform the requirements of representative occupations at the light exertion level, which exist in significant numbers in the national economy. R. 33.

Sodders submitted additional evidence to the Appeals Council, which the Appeals Council accepted into the record. R. 1-6. On October 22, 2014 the Appeals Council denied Sodders’ request for review, and the ALJ’s decision became the Commissioner’s final decision. Id. This appeal followed.


Sodders argues that the ALJ failed to properly consider the opinion of her treating counselor, licensed professional counselor Marsha Divers-Wiggs, and that additional evidence submitted to the Appeals Council warrants remand under 42 U.S.C. § 405(g).

Counselor’s Opinion

Sodders first argues that the ALJ erred by giving little weight to the opinion of her treating counselor, LPC Marsha Divers-Wiggs, and instead giving some weight to the opinions of the state agency reviewing physicians. In determining Sodders’ residual functional capacity, the ALJ considered a Mental Residual Functional Capacity Questionnaire completed by Ms. Divers-Wiggs in which she found that Sodders had extreme limitations in her abilities to perform in a regular work setting. The ALJ gave this opinion little weight, finding it inconsistent with other evidence in the record. R. 31. Instead, the ALJ gave greater weight to the opinions of the state agency reviewing and consultative physicians, who found Sodders physically capable of performing a range of medium work and further that she was “capable of performing routine tasks on a sustained basis (if motivated).” R. 31-32.

As a licensed professional counselor, Ms. Divers-Wiggs is not an acceptable medical source as defined by the Act. 20 CFR §§ 404.1527(c), 416.927(c) (defining acceptable medical sources as licensed physicians, licensed or certified psychologists, and-for limited purposes- licensed optometrists, licensed podiatrists, and qualified speech-language pathologists). Nevertheless, the ALJ “has a duty to consider all of the evidence available in a claimant’s case record, includ[ing] such evidence provided from ‘other’ nonmedical sources” such as licensed clinical social workers. Ingle v. Astrue, 1:10CV141, 2011 WL 5328036, at *3 (W.D. N.C. Nov. 7 2011) (citing Social Security Ruling (“SSR”) 06-03p; 20 CFR §§ 404.1513(d), 416.913(d)). Evidence from these non-acceptable medical sources cannot be used to establish the existence of a medically determinable impairment; nevertheless, “such sources may provide evidence, including opinion testimony, regarding the severity of the claimant’s impairments and [how] such impairment[s] affect the individual’s ability to function.” Id. (citing SSR 06-03p; 20 CFR §§ 404.1513(d), 416.913(d)); see also Ledbetter v. Astrue, 8:10-CV-00195-JDA, 2011 WL 1335840, at *10 (D.S.C. April 7, 2011) (“[O]pinions from medical sources, even when not ‘acceptable medical sources, ’ are important and should be evaluated on key issues such as impairment severity and functional effects.” (citing SSR 06-03p)); Foster v. Astrue, 826 F.Supp.2d 884, 886 (E.D. N.C. 2011); Social Security Ruling 06-03p.

To determine the weight given to the opinion of a source who is not an “acceptable medical source” as defined by the Act, the ALJ must consider: (1) the length of time the source has known the claimant and the frequency of their contact; (2) the consistency of the source’s opinion with the other evidence; (3) the degree to which the source provides supportive evidence; (4) how well the source explains his or her opinion; (5) whether the source has an area of specialty or expertise related to the claimant’s impairments; and (6) any other ...

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