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Jerika C. v. Commissioner of Social Security

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

January 3, 2019

JERIKA C., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT & RECOMMENDATION

          JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Jerika C., appearing pro se, asks this Court to review the Acting Commissioner of Social Security's (“Commissioner”) final decision denying her application for supplemental security income (“SSI”) under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f. The case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 11. Having considered the administrative record, the parties' filings, and the applicable law, I find that the Appeals Council erred by failing to consider new and material evidence that Jerika C. submitted to the agency under 20 C.F.R. § 416.1470 (2017). Accordingly, I respectfully recommend that the case be remanded under the sixth sentence of 42 U.S.C. § 405(g), so the Commissioner may consider this evidence in the first instance.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. 42 U.S.C. §§ 405(g), 1383(c)(3); 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, a court reviewing the merits of the Commissioner's final decision asks only whether the Administrative Law Judge (“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); see Riley v. Apfel, 88 F.Supp.2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98-100 (1991)).

         “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 Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). 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, 594 (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” within the meaning of the Act 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. § 1382c(a)(3)(A); accord 20 C.F.R. § 416.905(a).[1] Social Security ALJs follow a five-step process to determine whether a claimant is disabled. The ALJ asks, in sequence, whether the claimant (1) is working; (2) has a severe impairment that satisfies the Act's duration requirement; (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 Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017); 20 C.F.R. § 416.920(a)(4). The claimant bears the burden of proof through step four. Lewis, 858 F.3d at 861. At step five, the burden shifts to the agency to prove that the claimant is not disabled. See id.

         II. Procedural History

         Jerika C. filed the underlying SSI application on December 16, 2013, alleging disability from Wolff-Parkinson-White Syndrome (a cardiac impairment), schizophrenia, obsessive compulsive disorder, anxiety, depression, and attention deficit hyperactivity disorder. See Administrative Record (“R.”) 204, 259-60, 374-78. Disability Determination Services (“DDS”), the Virginia state agency, denied her claim initially in July 2014 and upon reconsideration that November. See R. 259-74, 275-91. On June 24, 2016, Jerika C. appeared without counsel and testified at an administrative hearing before ALJ Evelyn Maiben in Dallas, Texas.[2] See R. 220- 46. A vocational expert (“VE”) also testified at this hearing. R. 243-45.

         ALJ Maiben issued an unfavorable decision on October 26, 2016. R. 204-13. She found that Jerika C.'s “Wolff-Parkinson-White Syndrome; antero-septal pathway; major depressive disorder; attention-deficit/hyperactivity disorder (ADHD); panic disorder with agoraphobia; psychotic disorder, NOS; and anxiety disorder” were all “severe” medically determinable impairments, but that they did not meet or medically equal the relevant Listings. R. 206-07 (citing 20 C.F.R. pt. 404, supbt. P, app. 1 §§ 4.00, 12.02, 12.04). ALJ Maiben then evaluated Jerika C.'s residual functional capacity (“RFC”)[3] based on all of her medical impairments, R. 208-11, and found she could perform “light work” that involved occasional postural activities; “avoid[ed] concentrated exposure” to workplace hazards, respiratory irritants, and extreme temperatures; and never required climbing ropes, ladders, or scaffolds, R. 208. She was also limited to work that involved “one or two-step instructions and making simple decisions” and only “occasional contact with the general public, co-workers, and supervisors.” R. 208. Jerika C. did not have any past relevant work, R. 212, and therefore could not be found “not disabled” at step four, see 20 C.F.R. § 416.920(f). Finally, based on the RFC finding and the VE's hearing testimony, ALJ Maiben concluded at step five that Jerika C. was not disabled after December 16, 2013, because she still could perform certain widely available light, [4] unskilled occupations, such as merchandise marker, photocopy machine operator, and electrical assembler. R. 212-13; see R. 243-45.

         Jerika C. then asked the Appeals Council to review ALJ Maiben's decision, noting that she could “not work because being under minimal stress causes all [of her] mental conditions to increase way beyond any control.” R. 368 (Ex. 17B) (capitalization altered); see also R. 547-57 (Ex. 35E). She also submitted nearly two hundred pages of additional medical records related to her mental impairments and alleged functional limitations, R. 7-191, but the Appeals Council refused to consider this evidence in determining whether to grant or deny her request for review, R. 2. The Appeals Council denied Jerika C.'s request, R. 1-5, thereby making ALJ Maiben's written decision “the final decision of the Commissioner” denying her SSI claim, R. 1. This appeal followed.

         III. Discussion

         Jerika C. seeks judicial review of both the Commissioner's final decision denying benefits and the Appeals Council's “denial of request for review.” Compl. 1. The Commissioner filed a brief asserting her positions that ALJ Maiben's findings and conclusions were supported by substantial evidence in the hearing-level record, see Def.'s Br. 16-17, ECF No. 13, and that the Appeals Council properly declined to consider all of Jerika C.'s later-submitted psychiatric treatment records, see Id. at 10-16 (discussing 20 C.F.R. § 416.1470 (2017)). The Court finds that Jerika C.'s second ground for appeal, which the Court (like the Commissioner) liberally construes as challenging the Appeals Council's refusal to consider her additional medical evidence in accordance with 20 C.F.R. § 416.1470 and well-established Fourth Circuit precedent interpreting this regulation's predecessor, is persuasive and warrants remand for further proceedings under the sixth sentence of 42 U.S.C. § 405(g).[5] See, e.g., Vickie W. v. Berrhyill, No. 7:17cv324, 2018 WL 4604038, at *4-5 (W.D. Va. Sept. 25, 2018).

         When a claimant appeals an ALJ's ruling, the Appeals Council first makes a procedural decision whether to grant or deny the request for review. Davis v. Barnhart, 392 F.Supp.2d 747, 750 (W.D. Va. 2005). The current version of the governing regulation states, in relevant part, that the “Appeals Council will review a case” if

subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the [ALJ's] hearing decision, and there is a reasonable probability that the ...

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