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Rolland v. Berryhill

United States District Court, S.D. Georgia, Augusta Division

May 29, 2019

MYRTHIS REGINA ROLLAND, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE.

         Myrthis Regina Rolland appeals the decision of the Acting Commissioner of Social Security denying her application for Period of Disability and Disability Insurance Benefits (“DIB”) under the Social Security Act. Upon consideration of the briefs submitted by both parties, the record evidence, and the relevant statutory and case law, the Court REPORTS and RECOMMENDS the Commissioner's final decision be AFFIRMED, this civil action be CLOSED, and a final judgment be ENTERED in favor of the Commissioner.

         I. BACKGROUND

         Plaintiff applied for DIB on October 28, 2014, alleging a disability onset date of May 27, 2014. Tr. (“R.”), pp. 191-97. Plaintiff was fifty-five years old on May 27, 2014, and was fifty-eight years old at the time the Administrative Law Judge (“ALJ”) issued the decision under consideration. R. 25, 191. Plaintiff completed high school and two years of college. R. 223. Plaintiff's disability application states her ability to work was limited by removal of cancerous left kidney, vertigo, hypothyroidism, and complications related to her pancreas from surgery to remove cancer. R. 222. In a letter dated May 19, 2017, and addressed to the Appeals Council (“AC”), Plaintiff states she is not claiming disability because of vertigo or thyroid issues, but rather nerve damage and chronic pain, and she states these conditions existed since her July 2014 kidney surgery. R. 185-90. Prior to her alleged disability, Plaintiff had accrued a relevant work history of nearly thirty-five years as a cashier/payroll clerk. R. 223.

         The Social Security Administration denied Plaintiff's application initially and on reconsideration. R. 100-29. Plaintiff requested a hearing before an ALJ, (R. 132-33), and the ALJ held a hearing on March 8, 2017. R. 33-66. At the hearing, the ALJ heard testimony from Plaintiff, who appeared with her attorney, as well as from Carroll Crawford, a Vocational Expert (“VE”). Id.; R. 284. On April 21, 2017, the ALJ issued an unfavorable decision. R. 14-29.

         Applying the sequential process required by 20 C.F.R. § 404.1520, the ALJ found:

1. The claimant has not engaged in substantial gainful activity since May 27, 2014, the alleged onset date (20 C.F.R. § 404.1571 et seq.), and she meets the insured status requirements of the Social Security Act through December 31, 2019.[1]
2. The claimant has the following severe impairments: history of kidney cancer, status post nephrectomy with injury to the pancreas. (20 C.F.R. § 404.1520(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
4. The claimant has the residual functional capacity (“RFC”) to perform light work as defined in in 20 C.F.R. § 404.1567(b), except for work requiring exposure to unprotected heights or dangerous machinery; more than occasional pushing or pulling with the left leg; or more than frequent overhead reaching with the right dominant arm.[2] The claimant is capable of performing past relevant work as a cashier/checker and payroll clerk. This work does not require the performance of work-related activities precluded by the claimant's RFC (20 C.F.R. § 404.1565).

R. 19-25.

         Because the ALJ determined Plaintiff could perform her past relevant work, the sequential evaluation process stopped, and the ALJ concluded Plaintiff was not under a disability, as defined in the Social Security Act, from May 27, 2014, through the date of the decision, April 21, 2017. R. 26. When the AC denied Plaintiff's request for review of the ALJ's decision, R. 8-12, the Commissioner's decision became “final” for the purpose of judicial review. 42 U.S.C. § 405(g). Plaintiff then filed this civil action requesting reversal or remand of that adverse decision. Giving a liberal construction to Plaintiff's pro se brief, the Court concludes Plaintiff is arguing the ALJ misrepresented or misunderstood the record and failed to properly evaluate her subjective complaints of pain. See doc. no. 14 (“Pl.'s Br.”). The Commissioner maintains the administrative decision is supported by substantial evidence and should therefore be affirmed. See doc. no. 19.

         II. STANDARD OF REVIEW

         Judicial review of social security cases is narrow and limited to the following questions: (1) whether the Commissioner's findings are supported by substantial evidence, and (2) whether the Commissioner applied the correct legal standards. Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). When considering whether the Commissioner's decision is supported by substantial evidence, the reviewing court may not decide the facts anew, reweigh the evidence, or substitute its judgment for the Commissioner's. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Notwithstanding this measure of deference, the Court remains obligated to scrutinize the whole record to determine whether substantial evidence supports each essential administrative finding. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         The Commissioner's factual findings should be affirmed if there is substantial evidence to support them. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). Substantial evidence is “more than a scintilla, but less than a preponderance: ‘[i]t is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.'” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth, 703 F.2d at 1239). If the Court finds substantial evidence exists to support the Commissioner's factual findings, it must uphold the Commissioner even if the evidence preponderates in favor of the claimant. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). Finally, the Commissioner's findings of fact must be grounded in the entire record; a decision that focuses on one aspect of the evidence and disregards other contrary evidence is not based upon substantial evidence. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986).

         The deference accorded the Commissioner's findings of fact does not extend to her conclusions of law, which enjoy no presumption of validity. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991) (holding that judicial review of the Commissioner's legal conclusions are not subject to the substantial evidence standard). If the Commissioner fails either to apply correct legal standards or to provide the reviewing court with the means to determine whether correct legal standards were in fact applied, the Court must reverse the decision. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).

         III. DISCUSSION

         Plaintiff's brief consists primarily of a recitation of evidence she believes was overlooked and her interpretation of the record evidence, which conflicts with the ALJ's conclusion Plaintiff is not disabled. See generally Pl.'s Br. Plaintiff also generally complains she was unable to present additional evidence at the administrative hearing, and she offers medical records post-dating the ALJ's decision which she contends support her disability claim. See Id. at 24-26. Plaintiff cites the definitions of sedentary and light work in the Code of Federal Regulations, and she generally asserts she can do neither. Id. at 22. As discussed below, the administrative decision is supported by substantial evidence and should be affirmed.

         A. The Court Cannot Conduct a De Novo Review of the Record or Consider New Evidence Which Is Not Part of the Administrative Record

         Plaintiff seemingly wants the Court to revisit the issue of disability de novo. The law does not allow the Court to do this. A determination as to whether there is substantial evidence in the record to support fact findings in a social security disability case does not involve reweighing evidence, trying issues de novo, or substituting the Court's judgment for that of the Commissioner. See Moore, 405 F.3d at 1211.

         The new evidence attached to Plaintiff's brief post-dates the ALJ's decision, but predates the AC's denial of review. Because this evidence was not presented at the administrative level, it cannot be considered by the Court when determining whether the Commissioner's decision is supported by substantial evidence. A reviewing court, when presented with new evidence that was never presented for review at the administrative level, may only consider whether the new evidence necessitates remand under sentence six of § 405(g); a reviewing court may not consider the new evidence in determining whether the Commissioner's final decision is supported by substantial evidence. Ingram v. Comm'r of Soc. Sec. Admin.,496 F.3d 1253, 1267-68 (11th Cir. 2007); Norton v. Comm'r of Soc. Sec.,607 Fed.Appx. 913, 917-18 (11th Cir. 2015) (per curiam); see also Wilson v. Apfel,179 F.3d 1276, 1278-79 (11th Cir. 1999) (evidence attached to appellant's brief not properly before the court) (citing Cherry v. Heckler,760 F.2d 1186, 1193 (11th Cir. 1985) (noting general principle that court's review is limited to certified administrative record)); Walters v. ...


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