United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF No. 5]. I have
considered the parties' cross-motions for summary
judgment, and Ms. Wright's reply. [ECF Nos. 31, 34, 37].
I find that no hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). This Court must uphold the decision of
the Agency if it is supported by substantial evidence and if
the Social Security Administration (“SSA”)
employed proper legal standards. 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). For the reasons set forth below, I
recommend that Ms. Wright's motion be denied, that the
SSA's motion be granted, and that the SSA's judgment
be affirmed pursuant to sentence four of 42 U.S.C. §
Wright's now-deceased husband, Marvin R. Wright, filed an
application for Disability Insurance Benefits
(“DIB”) on April 6, 2015, alleging disability
beginning on June 1, 2012. (Tr. 149-52). Mr. Wright's
date last insured was June 30, 2012, meaning that he had to
establish disability within that one-month window to qualify
for benefits. (Tr. 14, 154). His application was denied
initially and on reconsideration. (Tr. 35-60, 63-72). An
Administrative Law Judge (“ALJ”) held a hearing
on November 9, 2016, at which Mr. Wright waived his personal
appearance but was represented by his counsel. (Tr. 24-34).
Following the hearing, the ALJ determined that Mr. Wright was
not disabled within the meaning of the Social Security Act
during the relevant one month time frame. (Tr. 12-19). The
Appeals Council denied Mr. Wright's request for review,
(Tr. 4-8), so the ALJ's decision constitutes the final,
reviewable decision of the Agency. Mr. Wright filed the
instant lawsuit on July 21, 2017, challenging the SSA's
determination. [ECF No. 1].
found that, during June of 2012, Mr. Wright suffered from the
severe impairment of cirrhosis of the liver. (Tr. 14).
Despite this impairment, the ALJ determined that Mr. Wright
retained the residual functional capacity (“RFC”)
perform light work as defined in 20 CFR 404.1567(b) except he
could frequently climb ramps and stairs, occasionally climb
ladders, ropes, and scaffolds, and frequently balance, stoop,
kneel, crouch, and crawl. He could have occasional exposure
to extreme cold, extreme heat, fumes, odors, dusts, gases,
poor ventilation, and hazards.
(Tr. 15). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr. Wright
could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled
during June, 2012. (Tr. 17-18).
Wright disagrees with the ALJ's conclusions. She raises
four primary arguments on appeal. First, she argues that the
ALJ “cherry-picked” from a mixed evidentiary
record. Pl. Mot. 2-3. Second, she contends that the ALJ did
not fully consider a treatment note from a treating nurse
practitioner, Judith Myers, from April 30, 2012. Id.
at 3-6. Third, she argues that the ALJ drew unwarranted
conclusions from Mr. Wright's travel to Florida in April,
2012. Id. at 6-8. Finally, she contests the
ALJ's assignment of weight to the non-examining State
agency consultants. Id. at 8-9. Each argument lacks
merit for the reasons discussed below.
Wright's first two arguments are related, in that she
contends that the ALJ focused on or
“cherry-picked” certain parts of the notes from
Mr. Wright's treating nurse practitioner in 2012, while
ignoring other information from the same notes. Id.
at 3-4. Although the relevant time period for this case is
June 1-30, 2012, there are no treatment records at all during
that window. The closest records to that time reflect Mr.
Wright's medical treatment in February, 2012 and April,
2012. (Tr. 574-77). The ALJ reviewed each of those reports in
the RFC evaluation. (Tr. 16). While Ms. Wright cited excerpts
from Ms. Myers's April 30, 2012 treatment record
expressing that Mr. Wright's inability to withstand
treatment is “unfortunate” due to his “age
and degree of liver damage, ” Ms. Myers made no
assessment of any significant functional limitations that Mr.
Wright was experiencing. (Tr. 563). In fact, Ms. Myers simply
noted that Mr. Wright should be seen in six months for
“routine labs and imaging” and noted that his
“cbc is improved.” Id. Similarly, in the
notes from an appointment in November, 2012, Ms. Myers
ordered additional screening and asked Mr. Wright to return
in four months for monitoring and labs. (Tr. 561-62). While
Ms. Myers made reference to “advanced disease”
and “degree of liver damage, ” nothing in those
records indicates that the liver condition created
work-preclusive impairments, and the ALJ's synopsis of
the records was not unfair. Ultimately, this Court's role
is not to reweigh the evidence or to substitute its judgment
for that of the ALJ, but simply to adjudicate whether the
ALJ's decision was supported by substantial evidence.
See Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). In light of that standard and the
substantial evidence the ALJ cited in support of his
assessment, remand is unwarranted.
Wright next contends that the ALJ attributed untoward weight
to Mr. Wright's travel to Florida in April, 2012. She
submitted a declaration to this Court that was not part of
the administrative record below, in which she described Mr.
Wright's physical condition during that Florida trip.
[ECF No. 31-2 at 3-5]. This Court cannot consider evidence
that was not presented to the SSA, but is permitted, if
appropriate, to remand a case for consideration of new and
material evidence pursuant to sentence six of 42 U.S.C.
§ 405(g). Sentence six provides:
The court may . . . at any time order additional evidence to
be taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate
such evidence into the record in the prior proceeding.
42 U.S.C. § 405(g). When invoking sentence six, a court
does not affirm or reverse the SSA's decision.
Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991).
“Rather, the court remands because new evidence has
come to light that was not available to the claimant at the
time of the administrative proceeding and that evidence might
have changed the outcome of the prior proceeding.”
Id. The declaration from Ms. Wright does not meet
either prong of that standard for evaluating new evidence.
The ALJ premised his decision not on Mr. Wright's
vacation to Florida, but on the lack of evidence supporting
specific “symptoms or limitations” during the
short one-month period at issue in this case. (Tr. 16). A
description of the vacation to Florida, then, would not
likely change the outcome of the proceeding. More
importantly, though, there is no good cause for the failure
to submit Ms. Wright's testimonial evidence, at the very
least, to the Appeals Council during the administrative
proceedings, even if its relevance could not have been
anticipated in the hearing before the ALJ. Without such a
showing of good cause, a sentence six remand is unwarranted.
Ms. Wright objects to the ALJ's assignment of weight to
the opinions of the non-examining State agency physicians.
Pl. Mot. 8-9. Ms. Wright notes that the ALJ assigned
“no weight” and “great weight” to
some of the same opinions. Id. The ALJ clearly
explains, however, that he assigns “no weight” to
those opinions finding Mr. Wright disabled as of 2015, and
“great weight” to the opinions finding
insufficient evidence to establish his disability during
June, 2012. (Tr. 16-17). That assignment of weight aligns
with the record, which is devoid of evidence that Mr. Wright
experienced disabling symptoms in June of 2012. Accordingly,
I find no basis for remand, and recommend that the Court
affirm the SSA's decision.
reasons set forth above, I ...