Opinion
Civil Action 6:21-cv-1905-MGL-KFM
02-15-2022
Larry Edenfield, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, [1] Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for supplemental security income benefits under Title XVI of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff protectively filed an application for supplemental security income (“SSI”) benefits on June 17, 2019, alleging that he became unable to work on February 3, 2014. The application was denied initially and on reconsideration by the Social Security 1 Administration. A telephone hearing was scheduled for the further review of the plaintiff's claim. The administrative law judge (“ALJ”), before whom the plaintiff and Cheryl Richardson, an impartial vocational expert (“VE”), appeared on November 4, 2020, considered the case de novo, and on December 1, 2020, the ALJ found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. The plaintiff submitted additional evidence to the Appeals Council. However, the ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on May 13, 2021. The Appeals Council additionally found the evidence that the plaintiff submitted either did not show a reasonable probability that it would change the outcome of the decision or did not relate to the period at issue. The plaintiff then filed this action for judicial review.
The record reflects that in February 2014 the plaintiff had previously filed applications for SSI and disability insurance benefits (“DIB”), but those claims were denied because he was deemed “not disabled” by an administrative law judge in September 2017.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since June 17, 2019, the application date (20 C.F.R. § 416.971 et seq.).
(2) The claimant has the following severe impairments: history of traumatic brain injury with residual neurocognitive disorder, seizures and headaches, depression and anxiety (20 C.F.R. § 416.920(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. §§ 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: never climb ladders/ropes/scaffolds, avoid concentrated exposure to sun, and even moderate exposure to unprotected heights or dangerous machinery. He can concentrate, persist and maintain pace sufficient to understand, remember and carry out simple, routine tasks in a low-stress work environment (defined as free of fast-paced or team-dependent production requirements), use judgment to make simple work-related decisions, and2
respond appropriately to simple work place changes. He can perform jobs with only occasional superficial interaction with the general public; would respond appropriately to supervision and is able to be aware of normal hazards & take appropriate precautions.
(5) The claimant is unable to perform any past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on April 9, 1979, and was 40 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. § 416.963).
(7) The claimant has limited education (20 C.F.R. § 416.964).
(8) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since June 17, 2019, the date the application was filed (20 C.F.R. § 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do 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.” 20 C.F.R. § 416.905(a). 3
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). 4
EVIDENCE PRESENTED
This is not an exhaustive recitation of the medical evidence that was before the ALJ; rather, it is an overview of the general nature of the evidence that is relevant to the issue discussed in this report and recommendation.
In February 2014, the plaintiff suffered a traumatic brain injury from an ATV accident. As part of his earlier social security claims, the plaintiff was examined by multiple consultative examiners. Those examinations, and more, were part of the record before the ALJ who considered the plaintiff's current SSI claim.
On September 29, 2014, Dr. Caleb Loring examined the plaintiff (Tr. 447-50). Dr. Loring's assessment included his observations of the plaintiff's behavior and a brief synopsis of the plaintiff's social and medical history (Tr. 447-48). Dr. Loring also administered the Wechsler Adult Intelligence Scale (“WAIS-IV”) test of intellectual ability, which showed the plaintiff had a full scale IQ of 68, which is in the extremely low range (Tr. 449). Dr. Loring diagnosed mood disorder due to general medical condition with depressive features, cognitive disorder, alcohol abuse (although Dr. Loring noted the plaintiff “[a]ppears to currently be sober”) (Tr. 450). Overall, Dr. Loring concluded that the plaintiff could probably do some simple indoor chores and take care of his children independently, but because the plaintiff was living with his parents, he was not engaging in some activities of daily living of which he was otherwise capable (Tr. 449-50). Dr. Loring noted the plaintiff still had some seizures, although they appeared to be fairly controlled by medication (Tr. 450). Dr. Loring further opined:
It is this examiner's opinion he could probably work at a job with public contact should he become employed in the future. Based on his results obtained during the testing, it is this examiner's opinion, Mr. Edenfield could probably learn simple tasks and complete them at an adequate pace with persistence in a vocational setting. Over time, his ability to do these things will probably continue to improve. It would seem as though he is responding well to treatment and recovery since his accident. His seizures could potentially interfere with his ability to work at5
an adequate pace with persistence in a vocational setting and comply with an expected work schedule. The degree in which the seizures impact his ability to accomplish tasks should be determined by an appropriate medical doctor.(Id.)
On June 20, 2017, Dr. James N. Ruffing examined the plaintiff (Tr. 451-55). Dr. Ruffing reviewed Dr. Loring's previous report, as well as other pertinent history. Dr. Ruffing also administered his own tests, including the WAIS-IV, which showed a full scale IQ of 65. According to Dr. Ruffing, the results of the 2017 test were “fairly consistent with prior assessment, though [the plaintiff] showed a decrease in the Processing Speed Index” (Tr. 454). Dr. Ruffing also administered achievement testing with the Wide Range Achievement Test -4 (“WRAT-4”) and the Bender Gestalt Visual-Motor Test (id.). Overall, Dr. Ruffing opined the plaintiff was “able to understand and respond to the spoken word” but “would likely struggle with concentration, in particular[, ] persistence and pace, as a result of his cognitive slowing” (Tr. 454-55).
Also before the ALJ were some records of the plaintiff's visits to Saad Upstate Neurology (Tr. 466-70). Those records detailed the plaintiff's visits on April 18, 2018, and July 18, 2018. During the April visit, the plaintiff reported seizures, memory loss, behavioral changes, occasional headaches, vision problems, vertigo, and trouble finding words (Tr. 468). He also reported both anxiety and depression (id.). Dr. Juliette Saad performed physical and neurological examinations (Tr. 469-70). She noted the plaintiff's abnormal memory (Tr. 469). Under impressions, Dr. Saad wrote the plaintiff was positive for disinhibition, behavioral problems, and cognitive impairment (Tr. 470). She prescribed Keppra (id.). During his July visit, the plaintiff reported he had not had a seizure since he was last seen (Tr. 466). Otherwise, he complained of memory problems, balance issues, occasional blurred vision, and hearing loss in his left ear (id.). Dr. Saad performed a general examination and recorded the results (Tr. 467). Under the assessment portion of 6 the notes, Dr. Saad reviewed the plaintiff's history of a traumatic brain injury from an ATV accident, which had required a decompressive craniotomy (id.). She again noted the plaintiff's disinhibition and behavior problems (id.). She also noted the plaintiff worried about post-traumatic stress disorder and would need an assessment (id.). Finding the plaintiff's seizures were under control with Keppra, she refilled his prescription (id.).
On May 6, 2019, the plaintiff went to the Union Medical Center (“UMC”) Emergency Department complaining of chest pain (see Tr. 481-547). After an unremarkable EKG and an abnormal chest x-ray, he was discharged with suspected left arm numbness secondary to an ulnar neuropathy (Tr. 499).
On September 28, 2019, Dr. James Shuman performed a consultative examination (Tr. 472-74). Dr. Shuman reviewed the plaintiff's medical history, family history, past surgical history, and social history (Tr. 472). Dr. Shuman performed a physical examination, which was largely normal (Tr. 473). As part of the neurological examination, Dr. Shuman noted the plaintiff was “[a]lert and oriented x3, absent hearing in the left ear” (id.). Dr. Shuman also performed a psychiatric evaluation, where he noted the plaintiff had “0/3 short-term recall. Cannot do serial 7's. Cannot spell world backwards. Normal judgment. Normal thought content. Normal though process” (id.) Dr. Shuman's impressions were that the plaintiff had traumatic brain injury, short-term memory loss, vertigo, and decreased/absent left-sided hearing (id.). Dr. Shuman ultimately concluded as follows:
Based on my examination, I think that the patient would have frequent limitations with short-term memory recall. This would frequently limit him being able to follow instructions and remember training on a day-to-day basis. States that he has to write everything down to remember. His memory loss is so severe that if he receives training on one day, he would not remember it the next day and would have to be retrained. He could also have frequent limitations with driving secondary to seizure danger. His last seizure was greater than six months ago, so he currently does have a license, but has to wait at least six months after having a seizure to be able to drive again. Again, the last seizure was four years ago. The patient would7
also have occasional limitations with sun exposure due to interaction with Keppra, occasional limitations with hearing, as well as overhead looking/rapid head movements as this reduces his vertigo. In my opinion, it would be very difficult for this patient to maintain a job because of the severity of his short-term memory recall.(Tr. 473-74).
On September 24, 2020, Dr. Saad submitted a questionnaire concerning the plaintiff's abilities (Tr. 475). In response to the question of whether the plaintiff would “most probably have to rest away from the work station for significantly more than an hour during the working portion of the work day, ” Dr. Saad responded, “Yes” (id.). In response to the question of whether the plaintiff would “most probably have to miss more than 3 days of work per month, ” Dr. Saad responded, “Yes” (id.). In response to whether it was “most probable that [the plaintiff] would have problems with attention to and concentration sufficient to frequently interrupt tasks during the working portion of the work day, ” Dr. Saad responded, “Yes” (id.). Dr. Saad listed traumatic brain injury, seizures, and cognitive impairment as the diagnoses underlying the plaintiff's impairments (id.). As for the basis for her opinion as to the plaintiff's impairments, she wrote, “See medical records including MOCA scoring” (id.).
On May 24, 2020, the plaintiff reported to the UMC Emergency Department with right upper dental pain (see Tr. 548-82). The plaintiff's poor dentition was noted, and he was prescribed amoxicillin and instructed to follow up with a dentist (Tr. 562).
On September 11, 2020, the plaintiff was seen by Dr. Saad at Saad Upstate Neurology (Tr. 583-87). During that visit, the plaintiff reported the following symptoms: memory loss; behavioral changes; daily headaches; occasional problems trying to find words; numbness, tingling, and weakness in his hands; balance problems; and anxiety (Tr. 583). Based on the Functional Assessment Staging Test (“FAST”), Dr. Saad found the plaintiff to be at stage three, or mild impairment, which is characterized by objective 8 functional deficits interfering with a person's most complex tasks (Tr. 584). Dr. Saad performed both physical and neurological examinations (Tr. 586). As part of the neurological examination, she noted the plaintiff's “poor short term memory, ” but otherwise she found the plaintiff “expresses normally, normal comprehen[sion]” and that he had “normal, pleasant” affect (id.). According to Dr. Saad's notes from the visit, her examination showed the plaintiff was “normal” in many other respects, but she noted he barely swung his left arm when walking (Tr. 587).
For reference, the less advanced stage two is “possible mild impairment, ” which is characterized by “subjective functional deficit, ” while stage four is “mild dementia” where “ADLs become affected, such as bill paying, cooking, cleaning, traveling” (Tr. 584).
Evidence Submitted to the Appeals Council
The evidence that was not before the ALJ but was submitted to the Appeals Council included the following: medical records from UMC for the period of August 1, 2014, through May 24, 2020 (Tr. 31-149); school records from 1994 (Tr. 168-77); a handwritten “headache log” by the plaintiff (Tr. 27-30); medical records from the UMC Center for Family medicine from September 25, 2017, through March 26, 2018 (Tr. 155-67); testing results from Dr. Brian J. Yore dated February 10, 2020 (Tr. 150-52); and a one-page statement by Dr. Yore dated February 22, 2021 (Tr. 8).
There is some overlap between the medical records from UMC that were submitted to the ALJ and those that were not.
Of particular relevance here, the testing results dated February 10, 2020, show that Dr. Yore administered the following tests to the plaintiff: Trail Making Test, Wisconsin Card Sorting Test, Tactual Performance Test, Controlled Oral Word Association Test, and Ray Complex Figure Drawing Test (Tr. 150-52). Dr. Yore indicated that his report was not a forensic psychological/neuropsychological assessment (Tr. 150). The record simply listed the raw test scores and data for each of the tests administered (Tr. 150-52). 9
In his letter dated February 22, 2021, Dr. Yore provided some insight as to how the plaintiff's performance on the various tests translated to the plaintiff's functional abilities. For example, Dr. Yore explained,
The Wisconsin Card Sorting Test assesses abstract reasoning, cognitive flexibility, and the ability to benefit from feedback. Mr. Edenfield scored between the 1st and 5th percentile on all subtests, with a score between the 6th and 10th percentile on the number of categories completed, of the Wisconsin Card Sorting Test. These results showed poor performance. Mr. Edenfield has significant difficulty responding to feedback and has very limited cognitive flexibility.(Tr. 8). Dr. Yore reported that the plaintiff did “fairly well” on the Tactile Performance Test but qualified that “this mainly tests his motor functions and tactile perceptions” (id.). After describing the two different Trail Making Tests administered to the plaintiff, Dr. Yore noted that the plaintiff scored in the sixth percentile on one and in the second percentile on the other, concluding “[t]his supports an assessment that Mr. Edenfield has significant cognitive inefficiencies” (id.). Based on the plaintiff's performance in the Rey Complex Figure Drawing test, Dr. Yore opined that the results “suggest[] that [the plaintiff] is unable to retain very much visually presented information, supporting an assessment of significant visual memory deficit for Mr. Edenfield” (id.). Finally, Dr. Yore stated that the plaintiff's score on the Controlled Oral Word Association Test was in the second percentile and “further supports an assessment of significant cognitive deficits for Mr. Edenfield” (id.).
ANALYSIS
The plaintiff argues that (1) the ALJ erred by improperly discounting the opinion of Dr. Saad (doc. 10 at 21-2); and (2) the Appeals Council erred by not considering new and material evidence that might have affected the Commissioner's final decision (id. at 24-29). The Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 11 at 5-16). Because the court finds the Appeals Council issue warrants remand, that issue will be addressed below. 10
Standard for New Evidence Submitted to the Appeals Council
Effective January 17, 2017, the regulations regarding the consideration of additional evidence by the Appeals Council were amended. See 20 C.F.R. § 416.1470(b). The new regulations provide as follows:
(a) The Appeals Council will review a case if-
. . . .
(5) Subject to paragraph (b) of this section, the
Appeals Council receives 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.
(b) The Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in [§ 416.1435] because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause;
(iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or11
(v) You received a hearing level decision on the record and the Appeals Council reviewed your decision.20 C.F.R. § 416.470 (2017). As such, the new regulations add two requirements to a claimant's burden to have new evidence considered by the Appeals Council: (1) a requirement that a claimant demonstrate good cause for the failure to submit the evidence earlier (“good cause”); and (2) a requirement to show a reasonable probability of a different outcome (“reasonable probability standard”). A reasonable possibility the new evidence would have changed the outcome of the case has long been how the Fourth Circuit Court of Appeals defines “material.” See Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (internal citation omitted); Wilkins v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). The amended regulations, however, redefine materiality as evidence that is “relevant, i.e., involves or is directly related to issues adjudicated by the ALJ, ” and adds the reasonable probability standard as an additional requirement. Hearings, Appeals, and Litigation Law Manual (“HALLEX”) I-3-3-6 (https://www.ssa.gov/OPHome/hallex/I-03/I-3-3-6.html); see 20 C.F.R. § 416.970(a)(5).
With the amended regulations, the Social Security Administration (“SSA”) updated its internal HALLEX to provide an explanation of how the Appeals Council would handle additional e vidence. S ee HA L L EX I -3 - 5 -20 (a vailable at https://www.ssa.gov/OPHome/hallex/I-03/I-3-5-20.html).
The Plaintiff's Submission of New Evidence
The plaintiff's case, having been filed in 2019, is subject to the new regulations. On February 10, 2021, the plaintiff appealed the ALJ's decision denying his SSI claim to the Appeals Council (Tr. 439-43). On March 18, 2021, the plaintiff submitted medical records that had not been considered by the ALJ (see Tr. 444-45). A letter by the plaintiff's counsel indicated that the majority of the records being offered to the Appeals Council had originally been submitted six days before the hearing date and should have been admitted into the record (Tr. 444). Counsel further explained: 12
Please be advised that there has been an ongoing problem with the [Electronic Records Express (“ERE”)] system at the Mauldin [Office of Hearing Operations (“OHO”)]. The problem has involved this office, the Business Services Offices, and OHO management. My understanding is that there has been an issue with the barcodes on the ERE submission sheets as well as the list of topics under which documents are submitted. The problem is ongoing and has reached a stage whereby we, in consultation with OHO management, are considering closing the existing account and opening a new one.(Tr. 445). One of the documents, the statement by Dr. Yore, had not previously been submitted to the OHO, but it was nevertheless included for the Appeals Council's review (Tr. 445).
As previously referenced, the Appeals Council ultimately denied the plaintiff's request for review (Tr. 1-4). The Appeals Council indicated that most of the evidence the plaintiff had submitted “d[id] not show a reasonable probability that it would change the outcome of the decision.” (Tr. 2). However, as to the statement by Dr. Yore, the Appeals Council found as follows:
You submitted a letter from Brian J. Yore, Ph.D., dated February 22, 2021 (1 page). The Administrative Law Judge decided your case through December 1, 2020. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before December 1, 2020.(Id.)
Discussion
In his brief, the plaintiff only takes issue with the Appeals Council's decision that Dr. Yore's letter did not relate to the period at issue and, thus, did not affect the decision about whether the plaintiff was disabled prior to December 1, 2020 (doc. 10 at 24-29). In particular, he argues, “While the Appeals Council may have been correct that [Dr. Yore's letter] was penned after the ALJ decision, this does not warrant automatic denial of consideration” (Tr. 26). The plaintiff further contends that because the letter pertained to testing done during the relevant period and was related to the plaintiff's issues that 13 resulted from his 2014 accident, it should not have been rejected for not relating to the period at issue (Tr. 27-28). The undersigned agrees. “[R]etrospective consideration of evidence is appropriate when ‘the record is not so persuasive as to rule out any linkage' of the final condition of the claimant with his earlier symptoms.'” Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 341 (4th Cir. 2012) (quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). While Bird specifically addressed evidence created after a claimant's date last insured, this court has suggested that the holding extends to situations in which evidence arises after the date of an ALJ's decision, but before the Appeals Council makes a decision to grant or deny review. See Wise v. Colvin, C/A No. 6:13-2712-RMG, 2014 WL 7369514, at *6-7 (D.S.C. Dec. 29, 2014) (finding that a treating physician's medical opinion dated three months after the ALJ's decision met the Bird standard and thus it was error for the Appeals Council not to consider it as mandated by Meyer); Dickerson v. Colvin, C/A No. 5:12-33-DCN, 2013 WL 4434381, at *14 (D.S.C. Aug. 14, 2013) (holding that a medical opinion dated more than a year after the ALJ's decision was new and material evidence that warranted remand). Here, Dr. Yore's letter was written after the ALJ's decision, but it clearly relates to the period at issue because, in the letter, Dr. Yore interprets test results from February 10, 2020, and offers opinions as to the plaintiff's functioning based on those results. See Reichard v. Barnhart, 285 F.Supp.2d 728, 733 (S.D. W.Va. 2003) (stating that the requirement that new evidence must be related to the period on or before the date of the ALJ's decision “does not mean that the evidence had to have existed during that period. Rather, evidence must be considered if it has any bearing upon whether the Claimant was disabled during the relevant period of time”).
Further, the court finds that this evidence is new and material as it is not cumulative or duplicative and there is a reasonable probability that the new evidence could impact the residual functional capacity (“RFC”) assessment. Although the record reflects that the plaintiff was evaluated by multiple consultative examiners during the pendency of 14 his social security claims, the tests administered by Dr. Yore were different than those administered by other consultative examiners, and Dr. Yore tested the plaintiff closer in time to the ALJ's decision than any of the other consultative examiners. Dr. Yore's letter also differed from the medical opinion offered by Dr. Saad in that Dr. Yore's letter had accompanying test results. Thus, Dr. Yore's letter, which explains the meaning of the plaintiff's testing results, is new.
Turning to the materiality of Dr. Yore's letter, the new requirement of the amended regulations-the reasonable probability standard-is similar to the prior standard for determining “materiality” of an opinion. As such, Court of Appeals cases evaluating the prior regulations may be used as guidance. See Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011). If the “new evidence from a treating physician was not controverted by other evidence in the record, ” the ALJ's decision should be reversed and found unsupported by substantial evidence. Id. (citing Wilkins, 953 F.3d at 96). Further, if the evidence is not so one-sided as to allow the court to determine-based upon consideration of the entire record-whether substantial evidence supported the ALJ's denial of benefits, the appropriate course of action is to remand the case for additional fact-finding. Id. Thus, the undersigned must consider Dr. Yore's letter as part of the entire record in order to determine whether the ALJ's decision was supported by substantial evidence. See Spencer v. Comm'r of Soc. Sec. Admin., C/A No. 1:16-cv-1735-JMC-SVH, 2017 WL 1379605, at *10-13 (D.S.C. Jan. 31, 2017), R&R adopted by 2017 WL 1364116 (D.S.C. Apr. 14, 2017). 15
The Commissioner cites Laxton v. Berryhill, in which the Middle District of North Carolina noted “the most recent versions of 20 C.F.R. § 404.970 increase a claimant's burden from showing a reasonable possibility to a reasonable probability.” 1:18CV446, 2019 WL 2516841, *n.3 (M.D. N.C. May 29, 2019) (emphasis in original), adopted by 2019 WL 2516442. While cognizant of the difference between the new and old standards, the court finds that Meyer is still instructive. Even in Laxton, the court did not completely ignore Meyer, it simply found the case distinguishable from Laxton's. Id. at *7.
As to the potential impact of Dr. Yore's letter, the record reflects that the ALJ evaluated the persuasiveness of the opinions by each of the consultative examiners and the plaintiff's treating neurologist, Dr. Saad, by considering whether they were consistent with a single piece of evidence-Dr. Saad's finding that on the FAST scale the plaintiff had stage three mild impairment, characterized by “[o]bjective functional deficit [that] interferes with a person's most complex tasks” (Tr. 584; see also Tr. 19-20). Indeed, the ALJ appeared to find the opinions by Dr. Loring and Dr. Ruffing to be persuasive solely because they were consistent with the stage three mild impairment (Tr. 19-20). On the other hand, the ALJ found the opinions by Dr. Shuman and Dr. Saad to be unpersuasive because they were not consistent with the stage three mild impairment (id.). There was arguably little else to gauge whether the medical opinions were consistent with the record as required by 20 C.F.R. § 416.920c since there were few medical records concerning the details of the plaintiff's treatment for his neurological issues. The three records from the plaintiff's visits to Saad Upstate Neurology were all handwritten and relatively sparse. Indeed, during the hearing, the ALJ questioned whether counsel had gotten access to Dr. Saad's files, and counsel indicated that “there was some problem. I don't know what it was” (Tr. 203). Counsel then referenced Dr. Saad's opinion, which relied upon Montreal Cognitive Assessment (“MoCA”) test results, but the MoCA results were not included in the record at all (Tr. 204). The ALJ responded, “Right. . . . she wasn't [sic] to get those for your or what's the reason we don't have those? That would be helpful” (id.). Dr. Yore did not perform the MoCA test, and as such, his letter would not have been helpful to further bolster Dr. Saad's opinion in that particular respect. However, based on the results of the tests he did 16 administer, Dr. Yore opined that the plaintiff had “very limited cognitive flexibility, ” “significant cognitive inefficiencies, ” “significant visual memory deficit, ” and “significant cognitive deficits . . . ” (Tr. 8). Those findings seemingly stand in contrast to the stage three FAST rating of mild impairment where deficits interfere with a person's most complex tasks, which was the touchstone of the ALJ's decision. As such, the court finds Dr. Yore's letter material in that there is a reasonable probability that his opinion could have impacted the RFC assessment.
The ALJ also found Dr. Saad's opinion to be unpersuasive because “the questions [were] couched using vague and speculative terms[, ]” but the ALJ noted, “more importantly, [the opinion was] inconsistent with her treatment records that specify that she assesses claimant with Stage 3, mild impairment of mental processes, characterized by ‘objective functional deficit interferes with a person's most complex tasks'” (Tr. 19 (emphasis in original)).
The Commissioner does not address whether the Appeals Council erred in finding Dr. Yore's letter did not relate to the period at issue. Instead, the Commissioner attempts to distinguish the instant case from the Meyer case. The Commissioner argues, “First, unlike in Meyer, Dr. Yore's February 2021 letter is not ‘the only record evidence as to the opinion of the treating physician, '” and “[s]econd, unlike in Meyer, Dr. Yore's February 2021 letter does not fill an ‘evidentiary gap'” (Tr. 15, 16). The undersigned agrees that the circumstances in the instant case are distinguishable from those in Meyer in some ways. For example, Dr. Yore's letter constitutes an opinion by a consulting examiner, not a treating physician. However, as in Meyer, there was somewhat of an “evidentiary gap” in the underlying evidence that was available to the ALJ concerning the plaintiff's neurological functional abilities. As outlined above, the ALJ's statements during the evidentiary hearing indicated that more evidence would have been helpful. Likewise, the decision itself, in which the ALJ repeatedly assessed the consistency of medical opinions based on Dr. Saad's determination that the plaintiff was stage three on the FAST scale, could have been impacted by additional recent examination findings that the plaintiff's cognitive issues were significant. Certainly, Dr. Yore's letter seems to support the opinions by Dr. Saad and Dr. Shuman, which the ALJ rejected.
Of note, the Appeals Council did not reject Dr. Yore's letter for a lack of good cause for the plaintiff's failure to timely submit it, and the Commissioner also does not 17 address whether the plaintiff demonstrated good cause. The plaintiff encourages the court to liberally construe the good cause standard (see doc. 10 at 28). Based on the court's review, the plaintiff's statement to the Appeals Council regarding the problem with the ERE system appears to meet the requirements in 20 C.F.R. § 416.470(b), and while it is less clear from the record whether there was some comparable good cause for the plaintiff's failure to submit Dr. Yore's letter, the court will assume as much because the Appeals Council did not indicate otherwise. See Merriweather v. Acting Comm'r of Soc. Sec. Admin., C/A No. 5:18-cv-00421-RBH, 2019 WL 3282716, at *8 n.5 (D.S.C. July 22, 2019) (“[T]his Court will assume that Plaintiff would be able to make a good cause showing for failure to submit the medical records in this case because the Appeals Council did not cite otherwise.”); Moseley v. Berryhill, C/A No. 6:18-1389-BHH-KFM, 2019 WL 2107917, at *10 (D.S.C. Apr. 22, 2019) (declining to consider the Commissioner's post-hoc argument regarding good cause because “the Appeals Council appears to have denied review based upon the opinions' failure to meet the reasonable probability standard, not upon good cause'”), R&R adopted by 2019 WL 2106181 (D.S.C. May 14, 2019). 18
As recently noted by this court:
[C]ourts within this district approach this issue differently. Some only consider the 20 C.F.R. § 404.970 factors explicitly relied upon by the Appeals Council, while others find it appropriate to consider factors that were not originally addressed by the Appeals Council. In light of the lack of authority to suggest otherwise, the court finds that it was not improper for the magistrate judge to consider the other factors articulated in 20 C.F.R. § 404.970 beyond the one specifically mentioned by the Appeals Council. As outlined above, courts within this district frequently consider all of the 20 C.F.R. § 404.970 factors even though the Appeals Council only relies on one when declining review, and [the plaintiff] cites to no binding authority that declares it improper for a court to do so.Lockaby v. Saul, C/A No. 4:18-cv-02056-DCN-TER, 2020 WL 1149725 (D.S.C. Mar. 10, 2020) (explaining how courts consider the various elements of the corollary provision to 20 C.F.R. § 416.470).
As explained above, the Appeals Council erred in finding the letter by Dr. Yore did not relate to the relevant period. Moreover, the court has found that Dr. Yore's letter was otherwise new and material such that there is a reasonable probability that it would have affected the ALJ's weighing of the medical opinions and, ultimately, the RFC. As such, the undersigned recommends that this matter be remanded for additional fact-finding. See, e.g., Rouse v. Berryhill, C/A No. 6:17-cv-1496-AMQ-KFM, 2018 WL 3118356, at *11 (D.S.C. June 4, 2018), R&R adopted by 2018 WL 3109861 (D.S.C. June 22, 2018) (finding remand appropriate under sentence four where “it was error by the Appeals Council not to consider, weigh, and reconcile” new opinion evidence from the claimant's treating physician); Pennock v. Colvin, C/A No. 6:15-cv-1490-RMG, 2016 WL 3457163, at *1 (D.S.C. June 23, 2016) (finding that “the failure of the Appeals Council or any other fact finder to weigh the new and material evidence from Plaintiff's treating and examining physicians and ‘to reconcile that new and material evidence with conflicting and supporting evidence in the record' requires ‘remand . . . for further fact finding'” pursuant to Meyer, 662 F.3d 700); Wise v. Colvin, C/A No. 6:13-cv-2712-RMG, 2014 WL 7369514, at *6 (D.S.C. Dec. 29, 2014) (“This greater evidentiary support contained in the June 2013 opinion report clearly constitutes ‘new and material' evidence that under Meyer should have been considered prior to a final decision by the Commissioner.”).
The court expresses no opinion as to the weight this evidence should be given or whether consideration of this evidence by the ALJ will ultimately result in a finding that the plaintiff is entitled to benefits. Analysis and discussion of this evidence may well not change the conclusion.
Remaining Allegation of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address any remaining allegations of error. The ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 19 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, should the district court adopt this recommendation and remand the matter, the ALJ should also take into consideration the plaintiff's remaining allegation of error.
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page. 20
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). 21