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Mathers v. Berryhill

United States District Court, D. Maine

February 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          John H. Rich III, United States Magistrate Judge

         This Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) 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 ALJ erred by declining to admit late-tendered evidence, and made findings regarding the plaintiff's residual functioning capacity (“RFC”) and credibility that were not supported by substantial evidence. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 14) at 1. I conclude that the ALJ acted within her discretion by declining to admit the late-tendered evidence and that her RFC and credibility findings were supported by substantial evidence. Accordingly, I affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff had the severe impairments of lumbar disc herniation with radiculopathy, morbid obesity, status post knee arthroscopy, personality disorder, post-traumatic stress disorder, bipolar disorder/depression, and attention deficit hyperactivity disorder, Finding 2, Record at 39; that she had the RFC to perform light work as defined in 20 C.F.R. § 416.967(a) except that she could occasionally climb ramps and stairs, ladders, ropes, and scaffolds and occasionally balance, stoop, kneel, crouch, and crawl, was limited to simple, routine tasks, and should have no interaction with the public, Finding 5, id. at 42; that, considering her age (26 years old, defined as a younger individual, on the date her SSI application was filed, August 14, 2013), education (limited), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id. at 49; and that she, therefore, had not been disabled from August 14, 2013, through the date of the decision, December 29, 2015, Finding 10, id. at 50. 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. § 416.1481; Dupuis v. Sec'y 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. § 1383(c)(3); Manso-Pizarro v. Sec'y 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. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ 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 her past relevant work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         The plaintiff's primary contention on appeal is that the ALJ abused her discretion by declining to admit late-tendered medical evidence in the form of a treating source's Medical Source Statement (“MSS”). See Statement of Errors at 6-8. She also challenges the ALJ's RFC finding, arguing that she gave undue weight to the opinions of agency nonexamining consultants, and her credibility determination, arguing that it is unsupported by substantial evidence. See id. at 14-19. For the reasons that follow, I find no error.

         A. Exclusion of Post-Hearing Evidence (Woelflein MSS)

         The plaintiff's administrative hearing was held on December 2, 2015. See Record at 67. By Notice of Hearing dated August 28, 2015, the ALJ informed the plaintiff, in bold typeface, that she “may decline to consider” any evidence submitted “later than 5 business days before the date of [the] hearing . . . unless the late submission falls within a limited exception.” Id. at 175.

         At the hearing, the plaintiff testified that she was prescribed medication to treat her back pain by her primary care physician, Kendra Emery, D.O., and that she had previously received the prescriptions from Karyn Woelflein, M.D. See id. at 75. At the close of the hearing, the ALJ noted that she had received “recent records from Dr. Woelflein” and inquired of plaintiff's counsel whether “records” from the plaintiff's “primary care doctor[, ]” who had taken over her care from Dr. Woelflein, had been filed. Id. at 95-96. The plaintiff's counsel responded that he had recently received “two office notes from Dr. Emery” but had not filed them because “I would not have gotten them in within the five-day limit.” Id. at 96. The ALJ asked counsel if the two notes from Dr. Emery were the “only records” in counsel's “possession” that had not been submitted, and when counsel said yes, she told him to “send them in[, ]” stating that he should do so “today or tomorrow.” Id. at 96-97.

         The plaintiff's counsel then commented, “[M]y experience has been that if I can't get them in within the five-day deadline they're not admitted so that's why I didn't send them in.” Id. at 97. The ALJ responded, “[I]f you have me again, you should go ahead and send them in[, ]” adding, “I mean I'll rule on them if for some reason I think they shouldn't be admitted, but you can go ahead and send them in, okay?” Id.

         That day, the plaintiff's counsel filed two progress notes authored by Dr. Emery, which the ALJ admitted as evidence. See id. at 36, 1046-53. However, two days later, he also filed an MSS by Dr. Woelflein, dated the day after the hearing. See id. at 36; Woelflein MSS (ECF No. 13). The ALJ “decline[d] to admit” the Woelflein MSS because it “was submitted late and no reason was provided to explain why it was submitted late.” Record at 36. As a result, she noted, the plaintiff had failed to satisfy the requirements of 20 C.F.R. § 405.331(c). See id. In the alternative, the ALJ found that the Woelflein MSS would have been given “little weight” if it had been admitted. Id. at 48.

         The plaintiff contends that the ALJ's refusal to admit the Woelflein MSS amounts to an abuse of discretion in light of her decision to admit Dr. Emery's two progress notes. See Statement of Errors at 7. The commissioner counters that the ALJ did not abuse her discretion in making a straightforward finding that, as to the Woelflein MSS, the plaintiff fell short of making the requisite showing. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 18) at 3-7. I agree.

         Section 405.331 requires that claimants “submit any written evidence no later than 5 business days before the date of the scheduled hearing[, ]” failing which an ALJ “may decline to consider the evidence unless the circumstances described in paragraphs (b) or (c) of this section apply.” 20 C.F.R. § 405.331(a).[2]

         An ALJ will admit evidence submitted “after the hearing and before the hearing decision is issued” if a claimant shows both “that there is a reasonable possibility that the evidence, alone or when considered with the other evidence of record, would affect the outcome of [the] claim, and” either: (1) the claimant was “misled” by an “action” of the commissioner, (2) the claimant was “prevented . . . from submitting the evidence earlier” due to “a physical, mental, educational, or linguistic limitation(s)[, ]” or (3) some “other unusual, unexpected, or unavoidable circumstance beyond [the claimant's] control prevented [the claimant] from submitting the evidence earlier.” 20 C.F.R. § 405.331(c).

         The plaintiff does not argue that the ALJ should have found circumstances mandating the admission of the Woelflein MSS under paragraph (c). See Statement of Errors at 6-8. Rather, she argues that the ALJ abused her discretion by admitting the Emery progress notes while declining to admit the Woelflein MSS, asserting that, in light of “the ALJ's specific request for updated information, the relevance of the [Woelflein MSS], and the ALJ's practice of accepting late arriving evidence, the decision to exclude [the MSS] appears arbitrary, irrational and biased.” Id. at 7 (citing 20 C.F.R. § 416.1440; Social Security Ruling 13-1p (“SSR 13-1p”)). The plaintiff contends that the ALJ's request for ...

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