MICHAEL W. PRICE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THOMAS M. DIGIROLAMO, Magistrate Judge.
Michael W. Price ("Plaintiff" or "Claimant") brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying his claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C.§§ 1381-83(c). Before the Court are Plaintiff's Motion for Summary Judgment (Pl.'s Mot. Summ., ECF No. 12) and Defendant's Motion for Summary Judgment. (Def.'s Mot. Summ., ECF No. 14). No hearing is deemed necessary. Local Rule 105.6 (D. Md.). For the reasons presented below, Defendant's Motion for Summary Judgment is GRANTED.
I. Procedural History
Plaintiff protectively filed his application for SSI on May 12, 2009 alleging disability since July 1, 2008 on the basis of back and knee problems, Lyme's disease and problems with his shoulders. R. at 114, 129, 133. His claim was denied initially and on reconsideration. R. 60-65. On January 20, 2011, a hearing was held before an administrative law judge ("ALJ") at which Plaintiff and a vocational expert ("VE") testified. R. at 23-53. Claimant was represented by counsel. In a decision dated February 11, 2011, the ALJ denied Plaintiff's request for benefits. R. at 11-22. The Appeals Council denied Plaintiff's request for review rendering the ALJ's decision the final decision subject to judicial review. R. at 1-4.
II. ALJ's Decision
The ALJ evaluated Plaintiff's claim for SSI using the sequential process set forth in 20 C.F.R. § 416.920. At the first step, the ALJ determined that Claimant had not engaged in substantial gainful activity since May 12, 2009, his application date. At step two, the ALJ determined that Claimant suffered from the following severe impairments: Lyme disease, degenerative disc disease status post lumbar fusion, osteoarthritis status post left knee and left shoulder arthroscopic surgery, left hip osteoarthritis, depression and anxiety. At step three, the ALJ found that his impairments did not meet or equal the Listings of Impairments set forth in 20 C.F.R. pt. 404, subpt, P, app. 1. The ALJ concluded at step four that Plaintiff was unable to perform his past relevant work. At step five, the ALJ concluded that Claimant was capable of performing jobs that existed in significant numbers in the national economy. Accordingly, he concluded that Claimant was not disabled. R. at 11-22.
III. Standard of Review
The role of this court on review is to determine whether substantial evidence supports the Commissioner's decision and whether the Commissioner applied the correct legal standards. 42 U.S.C. § 405(g) (1994 & Supp. V 1999); Pass v. Chater, 65 F.3d 1200, 1202 (4th Cir. 1995); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla, but less than a preponderance, of the evidence presented. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). It is such evidence that a reasonable mind might accept to support a conclusion, and must be sufficient to justify a refusal to direct a verdict if the case were before a jury. Hays, 907 F.2d at 1456 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). This court cannot try the case de novo or resolve evidentiary conflicts, but rather must affirm a decision supported by substantial evidence. Id.
Plaintiff argues that (1) the Appeals Council erred in not remanding the case to the ALJ;
(2) the ALJ erred in his treatment of the opinion of consultative examiner, Dr. Jensen; and (3) the ALJ failed to evaluate his impairments under Listing 1.02A. Al arguments are wholly without merit.
A. Appeals Council
Plaintiff first argues that that the Appeals Council should have remanded his case after receiving new and material evidence. The hearing before the ALJ in this matter took place on January 20, 2011. On January 25, 2011, the Claimant had surgery on his left hip of which the ALJ was aware. R. at 17, 31. The ALJ issued an unfavorable decision on February 11, 2011, and Claimant requested review. The Appeals Council denied review and in its denial, considered additional evidence submitted by Plaintiff's counsel including discharge instructions from Sinai Hospital with respect to the January 25, 2011 surgery. R. at 4, 328. Plaintiff also submits to the Court a copy of the operative report from the January 25, 2011 surgery. Pl.'s Mot. Summ., ECF No. 12, Ex. 1. Apparently the operative report was submitted electronically to the Social Security Administration on August 3, 2011 but is not part of the administrative record. Plaintiff contends that these reports together provide a basis for changing the ALJ's decision.
The Appeals Council must consider evidence submitted with a request for review if the evidence is new, material, and relates to the period on or before the date of the ALJ's decision. See Wilkins v. Secretary of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.1991). Evidence is new if it is not duplicative and cumulative. Wilkins, 953 F.2d at 96. Evidence is material if "there is a reasonable possibility that the new evidence would have changed the outcome." Id. The evidence at issue relates to Claimant's January 25, ...