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Smathers v. Saul

United States District Court, M.D. Pennsylvania

September 30, 2019

JENNIFER LOU SMATHERS, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL

          GERALD B. COHN UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Jennifer Lou Smathers (“Plaintiff”) seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.

         I. STANDARD OF REVIEW

         To receive disability or supplemental security benefits under the Act, a claimant bears the burden to demonstrate an “inability 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. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:

shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment “by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

         Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). The process requires an administrative law judge (“ALJ”) to decide whether an applicant (1) is engaged in “substantial gainful activity;” (2) suffers from a “severe medically determinable physical or mental impairment;” (3) suffers from “an impairment(s) that meets or equals one” listed in the regulation's appendix; (4) has a residual functional capacity (“RFC”) allowing for performance of “past relevant work;” and (5) can “make an adjustment to other work.” Rutherford v. Barnhart, 399 F.3d 546, 551; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).

         If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.

         In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) (“court shall review only the question of conformity with such regulations and the validity of such regulations”); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). Substantial evidence “does not mean a large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Court's review is based on the record, and the Court will “meticulously examine the record as a whole, including anything that may undercut or detract from the [Administrative Law Judge's] findings in order to determine if the substantiality test has been met.” Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004 Substantial evidence is “less than a preponderance” and “more than a mere scintilla.” Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)).

         II. PROCEDURAL HISTORY

         On September 29, 2014, Plaintiff filed an application for Title XVI Supplemental Security Income (“SSI”) of the Act, 42 U.S.C. §§ 401-433, 1382-1383, with a disability onset date of August 1, 2011. (Tr. 25, 87). Plaintiff alleged disability due to Crohn's disease, hypertension, joint pain, fevers, diarrhea, anxiety, immune system deficiency, and abdominal pain. (Tr. 87). Plaintiff waived her right to representation. (Tr. 50-51, 75, 79-80). Plaintiff, her mother, and her stepmother testified at the hearing. (Tr. 47-71). On June 6, 2017, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 22-43). Plaintiff sought review of the decision, which the Appeals Council denied on July 11, 2018, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 1-6).

         On September 7, 2018, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On November 9, 2018, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 4, 5). On December 26, 2018, Plaintiff filed a brief in support of the appeal. (Doc. 7 (“Pl. Br.”)). On January 31, 2019, Defendant filed a brief in response. (Doc. 9 (“Def. Br.”)).

         III. ISSUES

         On appeal, Plaintiff argues the following: (1) the Social Security Administration erred in failing to consider the report of Dr. Komar as new and material; (2) the ALJ failed to order an updated consultative examination of the Plaintiff and erred in failing to obtain letters from physicians regarding her disability; (3) the ALJ failed to challenge the vocational expert (“VE”) concerning the reasoning requirements of the jobs she identified as within the residual functional capacity of the Plaintiff; and, (4) the ALJ did not properly consider the testimony of the Plaintiff's mother and stepmother. Pl. Br. at 8.

         IV. BACKGROUND

         Plaintiff was born in August 1966 and thus is classified by the regulations as a younger individual through the date of the June 2017 ALJ decision. (Tr. 37); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed one year of college and does not have past relevant work. (Tr. 54, 67, 149).

         V. ANALYSIS

         A. Sentence Six

         Plaintiff argues the submission of the August 2017 opinion from Michael Komar, M.D. (Tr. 14) warrants remand. Pl. Br. at 10-11. Dr. Komar's August 2017 opinion came after the ALJ's June 2017 decision. The Appeals Council determined Dr. Komar's August 2017 opinion failed to “show a reasonable probability that it would change the outcome of the decision” and denied review. (Tr. 1-6).

         When the Appeals Council denies review, evidence that was not before the ALJ may only be used to determine whether it provides a basis for remand under sentence six of section 405(g), 42 U.S.C. (“Sentence Six”). See Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Sentence Six requires a remand when evidence is “new” and “material, ” but only if the claimant demonstrated “good cause” for not having incorporated the evidence into the administrative record. Id. The Appeals Council requires “additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5); 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017); Matthews v. Apfel, 239 F.3d 592.

         In the August 2017 opinion Dr. Komar wrote:

[Plaintiff] is a 50-year-old woman with a history of ileal Crohn's disease, superimposed IBS, fibromyalgia, and anxiety and depression who complains of fatigue, listlessness, joint pain, and an irregular bowel pattern associated with lower abdominal cramping. Her last colonoscopy in March 2017 revealed a normal-appearing terminal ileum with unremarkable biopsies. Her joint pain involves her hands with morning stiffness, lower back and hips. She has attended an intensive outpatient program for management of her anxiety and depression, but does not sleep well. She lives alone (although her mother lives next door) and is dependent on her family for full financial support. Both her mother and brother have Crohn's disease.
Her medical regimen includes Asacol HD 800 mg two daily, Entocort 3 mg daily, gabapentin 100 mg TID (she feels foggy and cannot concentrate), acetaminophen 325 mg PRN, and ibuprofen 200 mg PRN (advised against).
The primary concern conveyed by [Plaintiff] and those who care for her is her mental fogginess, chronic pain, and an inability to work. She is slow to process information or answer questions and doesn't want to be a hazard to others. She needs ongoing assistance to develop coping mechanisms to deal with stress, improve her inability, and reduce her social phobia. Under no circumstance would she be employable at Geisinger, and her ...

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