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Wilson v. Colvin

United States District Court, District of Maine

June 27, 2014

TIMOTHY THOMAS WILSON, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Plaintiff TIMOTHY THOMAS WILSON represented by RILEY L. FENNER LAW OFFICE OF RILEY L. FENNER

Defendant SOCIAL SECURITY ADMINISTRATION COMMISSIONER represented by NATASHA OELTJEN SUSAN D. BELLER

REPORT AND RECOMMENDED DECISION [1]

John H. Rich III, United States Magistrate Judge

This Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the Appeals Council erred in rejecting newly submitted evidence on the ground that it was not material, and the administrative law judge erred in failing to afford adequate weight to a U.S. Department of Veterans Affairs (“VA”) disability rating decision, deeming the plaintiff’s testimony not fully credible, and relying on the residual functional capacity (“RFC”) opinion of agency nonexamining consultant Seung Park, M.D. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 15) at 9-14. For the reasons that follow, I recommend that the court affirm the decision.

Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2015, Finding 1, Record at 44; that he had a severe impairment of status-post stroke with vestibular symptoms, Finding 3, id.; that he retained the RFC to occasionally lift/carry 20 pounds, frequently lift/carry 10 pounds, stand and/or walk for about two hours in an eight-hour workday, sit for about six hours in an eight-hour workday, and push or pull within the assessed weight tolerances for lifting/carrying, could never balance or climb ladders, ropes, or scaffolds, could occasionally climb stairs or ramps, stoop, crouch, kneel, or crawl, and needed to avoid operation of hazardous machinery, irregular terrain, and unprotected heights, Finding 5, id. at 46; that, considering his age (40 years old, defined as a younger individual, on his alleged disability onset date, November 17, 2010), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 50-51; and that he, therefore, was not disabled from November 17, 2010, through the date of the decision, October 24, 2012, Finding 11, id. at 51. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

The standard of review of the commissioner’s decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. § 404.1520(g); Bowen, 482 U.S. at 146 n.5; Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

I. Discussion

A. Appeals Council Action

In seeking review of the administrative law judge’s October 24, 2012, decision, the plaintiff submitted additional evidence to the Appeals Council pertaining to his hospitalization for bilateral vocal cord paralysis from December 28, 2012, through January 18, 2013. See Record at 2, 5-37. The Appeals Council determined that “this information does not show a reasonable probability that, either alone or when considered with the other evidence of record, would change the outcome of the decision.” Id. at 2 (citation omitted).

In Mills v. Apfel, 244 F.3d 1 (1st Cir. 2001), the First Circuit made clear that there are two circumstances in which remand based on submission of evidence subsequent to the issuance of an administrative law judge’s decision is appropriate: (i) when that evidence is new and material and a claimant demonstrates good cause for its belated submission and (ii) when, regardless of whether there is such good cause, the Appeals Council has given an “egregiously mistaken ground” for its action in refusing review in the face of such late-tendered evidence. Mills, 244 F.3d at 5–6.

The plaintiff invokes the latter, arguing that the Appeals Council was egregiously mistaken in finding that there was no reasonable probability that the new evidence would change the outcome of the decision because the administrative law judge discounted his claimed respiratory difficulties on the basis of lack of record support, yet the new evidence indicates that his vocal cord paralysis began in November 2010, when he suffered the stroke that forms the basis for his disability claim. See Statement of Errors at 9-10.

The First Circuit has stated that the Appeals Council’s reasons for denying review are owed “great deference[, ]” although “they are ordinarily not beyond review in extreme cases.” Mills, 244 F.3d at 6. This is not such an extreme case. As counsel for the commissioner argues, see Defendant’s Opposition to Plaintiff’s Itemized Statement of Errors (“Opposition”) (ECF No. 19) at 11, even though the new evidence provided a likely diagnosis for the symptoms the plaintiff reported as of the time of his hearing, the Appeals Council reasonably could have concluded that the condition was not disabling as of then.

First, the new evidence indicates that the plaintiff’s condition deteriorated sharply in the two weeks leading to his hospitalization. See, e.g., Record at 15 (plaintiff stated “that he has noted over the past 2 weeks that [he] had difficulty breathing and a significantly hoarse voice”), 18 (plaintiff presented “with 2 weeks of shortness of breath characterized by difficulty [with] inspiration (audible stridor)”; ...


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