Opinion
CIVIL ACTION NO. 9:17-3033-RBH-BM
08-02-2018
DEANNA ELAINE GOFORTH, Plaintiff, v. NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) on December 27, 2013, alleging disability since November 1, 2011, due to fibromyalgia, arthritis, pseudotumor cerebri, obesity, diabetes, and pain and weakness in her hip, knee, and back. (R.pp. 86, 98, 242). Plaintiff's application was denied initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 8, 2016. (R.pp. 43-85). The ALJ thereafter denied Plaintiff's claim in a decision dated October 28, 2016. (R.pp. 22-42). The Appeals Council denied Plaintiff's request for review on September 25, 2017, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).
Plaintiff then filed this action in United States District Court, asserting that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further consideration, or for an outright award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was forty nine (49) years old on November 1, 2011 (when she alleges she became disabled), has a high school education and also graduated from the Anderson School of Practical Nursing. She has past relevant work experience as a licensed practical nurse and as a clinical reviewer/benefits manager. (R.pp. 35, 241-243). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months.
After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of obesity, arthritis, and disorder of the nervous system (R.p. 27), she nevertheless retained the residual functional capacity (RFC) to perform light work with the following additional limitations and findings: Plaintiff can never climb ladders; she can occasionally climb steps; frequently balance, stoop, kneel, and crawl; occasionally crouch; she should avoid concentrated exposure to heat, cold, and humidity; and avoid exposure to hazards. (R.p. 28). The ALJ further determined that these limitations did not preclude Plaintiff from performing her past relevant work as a clinical reviewer, that she could also perform other representative occupations with these limitations such as desk clerk (DOT # 238.367-038), file clerk (DOT # 206.367-014), customer service clerk (DOT # 299.367-010), dispatcher (DOT # 913.36-010), and order clerk (DOT # 249.362-026), and that she was therefore not entitled to disability benefits. (R.pp. 34-36).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
Plaintiff asserts that the Appeals Council erred when it upheld the ALJ's decision because it failed to properly consider an opinion dated December 12, 2016, from Plaintiff's treating physician, Dr. Amir Agha, that was submitted as part of Plaintiff's appeal. (R.pp. 7-9). Plaintiff contends that this new evidence requires a remand of this case for reconsideration of her claims, and after careful review and consideration of the record in this case and the arguments from the parties, the undersigned is constrained to agree with the Plaintiff that under current law as applied in this Circuit the Appeals Council committed reversible error in its evaluation of this evidence, thereby requiring a remand for further consideration of Plaintiff's claim.
Dr. Agha was one of Plaintiff's treating physicians. He saw Plaintiff frequently beginning in December 2012 and continuing through 2016; has found that Plaintiff suffers from degenerative changes, arthralgia, myalgia and muscle tenderness, and has diagnosed Plaintiff with fibromyalgia and degenerative joint disease. See, generally (R.pp. 352-355, 357-358, 625-629, 659, 688). However, the ALJ found that Dr. Agha's records did "not satisfy the requirements und SSR 12-2p." (R.p. 33), and concluded that fibromyalgia was "not a medically determinable impairment". (R.p. 27). However, the ALJ provided no discussion or analysis of how Dr. Agha's records fail to satisfy the requirements of SSR 12-2p. Moreover, even if she had, in the additional evidence submitted by Plaintiff to the Appeals Council, Dr. Agha continues to diagnose Plaintiff with fibromyalgia and specifically addresses the record deficiency noted by the ALJ, stating that from the time he first diagnosed her with this condition (which was December 2012) she had at least 11 tender points (that were bilaterally located and above and below the waist), that he had applied digital palpation with an approximate force of 9 pounds which caused Plaintiff to experience pain, that Plaintiff has a history of widespread pain in all 4 quadrants of her body and axial skeletal pain that has persisted for at least three months, and that Plaintiff has repeated manifestations of at least 6 FM signs, symptoms, or co-occurring conditions. (R.pp. 7-8). Dr. Agha also specifically checked that Plaintiff suffered from the following symptoms: muscle pain, fatigue or tiredness, thinking or remembering problems, headaches, pain or cramps in the abdomen, numbness or tingling, insomnia, depression, nervousness, and dry mouth. (R.p. 8), and that he had excluded other disorders that could cause these conditions. (R.p. 9).
The Social Security Rule dealing with diagnoses of fibromyalgia.
In her decision, the ALJ set forth the requirements of SSR 12-2p, and then found that the records of a "Dr. Kooistra" did not satisfy those requirements because "she" did not identify 11 of 18 positive trigger points bilaterally and that (post-2010) the evidence was "equivocal as to whether there were repeated manifestations of six or more fibromyalgia symptoms and whether other disorders were excluded". (R.p. 33). The ALJ's reference to Dr. Kooistra" appears to be a typo, as no such physician is referenced in Plaintiff's treatment notes. The ALJ's reference to this physician does not, however, appear to be Dr. Agha, as the ALJ states that "Dr. Kooistra's" last office note included a diagnosis of sleep disorder. Dr. Agha's last treatment note is from June 28, 2016, and does not appear to mention a sleep disorder. (R.p. 688).
Pursuant to 20 C.F.R. §404.970
(b) If new and material evidence is submitted, the Appeals Council shall consider the additional evidence . . . where it relates to the period on or before the date of the
administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.20 C.F.R. § 404.970(b). In order to be "new" evidence, the evidence must not be "duplicative or cumulative"; and in order to be "material", there must be a "reasonable possibility that it would have changed the outcome". Wilkins v. Secretary of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Here, this evidence was obviously "new", since it was not evidence that had been considered by the ALJ. It was also "material", as it relates to the time period at issue, and references specific criteria and findings which the regulations require for fibromyalgia to be a medically determinable impairment. As noted, the ALJ had previously found that the records available to her from Dr. Agha at the time she rendered her decision were not sufficient to satisfy these criteria. (R.p. 33). See Soc. Sec. Ruling, SSR 12-2p; Titles II & Xvi: Evaluation of Fibromyalgia, SSR 12-2P (S.S.A. July 25, 2012).
Even so, the Appeals Council found that the "additional evidence does not provide a basis for changing Administrative Law Judge's decision", and denied Plaintiff's request for review. (R.p. 1). The undersigned concludes that the Appeals Council committed clear error in making this finding under the facts of this case. The proper manner and procedure for the handling of new evidence submitted to an Appeals Council was discussed extensively by the Fourth Circuit in Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011), which held that where a claimant submits additional evidence that was not before the ALJ when requesting review by the Appeals Council, if the evidence is new and material the Appeals Council is to evaluate the entire record, including the new and material evidence, to see if it warrants any change in the ALJ's decision. If, after this evaluation, the Appeals Council finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record, it will grant the request for review and either issue its own decision on the merits or remand the case to the ALJ. Conversely, if upon consideration of the evidence, including any new and material evidence, the Appeals Council finds that the ALJ's action, findings or conclusions are not contrary to the weight of the evidence as a whole, the Appeals Council can simply deny the request for review. See generally, Meyer, 662 F.3d at 704-705. That is what the Appeals Council did in this case. (R.pp. 1-3).
While there is nothing in the Social Security Act or regulations that require an Appeals Council to explain its rationale for denying review any more so than through the form language used in this case; Meyer, 602 F.3d at 705; the Meyer court nonetheless noted that it was "certainly mindful that 'an express analysis of the Appeals Council's determination would [be] helpful for purposes of judicial review'"; Meyer, 662 F.3d at 706 (citing Martinez v. Barnhart, 444 F.3d 1201, 1207-1208 (10th Cir. 2006)); and went on to hold that, where the treating physician (in that case) had submitted a letter to the Appeals Council detailing Plaintiff's injuries and recommending significant restrictions on Plaintiff's activity, it "simply [could not] determine whether substantial evidence support[ed] the ALJ's denial of benefits . . . ", because the ALJ, in rendering his decision, had specifically emphasized that the record before him did not include any restrictions from the treating physician. Id. Therefore, the Meyer court reversed the judgment of the District Court and remanded for rehearing by the Social Security Administration.
The case presently before the Court is subject to reversal based on this same reasoning. As was noted in Meyer, courts should affirm an ALJ's denial of benefits after reviewing new evidence presented to the Appeals Council where, even with this new evidence, substantial evidence supports the ALJ's findings. However, reversal is required if, on consideration of the record as a whole, the court "simply cannot determine whether substantial evidence supports the ALJ's denial of benefits . . . ." Meyer, 662 F.3d at 707. In Meyer, such was found to be the case where the new evidence was evidence from a treating physician that provided evidence the ALJ said in his decision he did not have, and which corroborated other evidence that the ALJ had rejected. The fact situation is the similar here.
The Defendant initially discusses at length the new requirement for a claimant to show good cause for not informing the ALJ about new evidence or submitting the evidence prior to the hearing, before the Appeals Council will consider such evidence. See 20 C.F.R. §§ 404, 970(b), 416.970(b). However, as correctly noted by both the Defendant and Plaintiff, that regulation became effective on January 17, 2017, while Plaintiff's appeal was pending, and the Appeals Council specifically informed Plaintiff in writing that they found that she showed good cause for not submitting her evidence earlier since her appeal was already pending. (R.p. 15). Therefore, the undersigned does not find that Plaintiff's case should be dismissed on that basis.
In order for fibromyalgia to meet the medically determinable impairment standard, the following must be shown:
II. What specific criteria can establish that a person has an MDI of FM? We will find that a person has an MDI of FM if the physician diagnosed FM and provides the evidence we describe in section II.A. or section II. B., and the physician's diagnosis is not inconsistent with the other evidence in the person's case record. These sections provide two sets of criteria for diagnosing FM, which we generally base on the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia (the criteria in section II.A.), or the 2010 ACR Preliminary Diagnostic Criteria (the criteria in section II.B.). If we cannot find that the person has an MDI of FM but there is evidence of another MDI, we will not evaluate the impairment under this Ruling. Instead, we will evaluate it under the rules that apply for that impairment.
A. The 1990 ACR Criteria for the Classification of Fibromyalgia. Based on these
criteria, we may find that a person has an MDI of FM if he or she has all three of the following:
1. A history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.
2. At least 11 positive tender points on physical examination (see diagram below). The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist.
a. The 18 tender point sites are located on each side of the body at the:
• Occiput (base of the skull);
• Low cervical spine (back and side of the neck);
• Trapezius muscle (shoulder);
• Supraspinatus muscle (near the shoulder blade);
• Second rib (top of the rib cage near the sternum or breast bone);
• Lateral epicondyle (outer aspect of the elbow);
• Gluteal (top of the buttock);
• Greater trochanter (below the hip); and
• Inner aspect of the knee.
b. In testing the tender-point sites, the physician should perform digital palpation with an approximate force of 9 pounds (approximately the amount of pressure needed to blanch the thumbnail of the examiner). The physician considers a tender point to be positive if the person experiences any pain when applying this amount of pressure to the site.
3. Evidence that other disorders that could cause the symptoms or signs were excluded. Other physical and mental disorders may have symptoms or signs that are the same or similar to those resulting from FM. Therefore, it is common in cases involving FM to find evidence of examinations and testing that rule out other disorders that could account for the person's symptoms and signs. Laboratory testing may include imaging and other laboratory tests (for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor).
B. The 2010 ACR Preliminary Diagnostic Criteria. Based on these criteria, we may find that a person has an MDI of FM if he or she has all three of the following criteria:
1. A history of widespread pain (see section II.A.1.);
2. Repeated manifestations of six or more FM symptoms, signs,9 or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; andSoc. Sec. Ruling, SSR 12-2p; Titles II & Xvi: Evaluation of Fibromyalgia, SSR 12-2P (S.S.A. July 25, 2012).
3. Evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded (see section II.A.3.).
As noted, the ALJ rejected Plaintiff's complaints because she concluded that Dr. Agha's findings did not satisfy the requirements under SSR 12-2p to prove that fibromyalgia was a medically determinable impairment. (R.p. 33). In doing so, the ALJ refers to Dr. Agha's records, noting that his treatment of the Plaintiff started in December 2012 and continued through April 2014. (R.p. 31). However, the new evidence submitted to the appeals counsel is from this treating physician and now specifically addresses the requirements of SSR 12-2p. Cf. Wyns-Bills v. Colvin, No. 14-3353, 2015 WL 5117018 at * 6 (D.S.C. Aug. 31, 2015) [Remanding under Meyer analysis where records submitted to Appeals Council filled an "evidentiary gap"]. In addition, the ALJ found that Plaintiff's memory problems are symptomatic of her headaches and pseudotumor cerebri, and opined that both of these conditions had been controlled with medications. (R.p. 34). However, in the evidence submitted by Plaintiff with her appeal to the Appeals Council, Dr. Agha opined that he had excluded disorders, other than fibromyalgia, that could cause certain manifestations that he listed, including Plaintiff's thinking or remembering problems and her headaches. (R.pp. 8-9).
The undersigned is constrained to note that, while the ALJ states in her decision that she had considered Dr. Agha's records through April 2014 (R.p. 31), the record before the ALJ also contained records from Dr. Agha from November 2014, July 2014, March 2015, July 2015, October 2015, April 2016, and June 2016. (R.pp. 625-629, 631-632, 659, 688). Therefore, it does not appear that the ALJ even fully considered the records from this treating source.
Therefore, "[o]n consideration of the record as a whole, [this court] simply cannot determine whether substantial evidence supports the ALJ's" decision, as "no fact finder has made any findings as to [the new evidence] or attempted to reconcile that evidence with the conflicting and supporting evidence in the record. Assessing the probative value of competing evidence is quintessentially the role of the fact finder. We cannot undertake it in the first instance". Meyer, 662 F.3d at 707. There is no way for this Court to know what the ALJ's decision would have been if, at the time the case was before her for decision, she had had this evidence from Plaintiff's treating physician which specifically addresses an issue on which the ALJ based her decision, for consideration and review. While it is certainly possible that the ALJ on remand might still reach the same conclusions as are set forth in the decision, that is a finding that must be made by the ALJ, not by this Court in the first instance. Morales v. Apfel, 225 F.3d 310, 317-318 (3d Cir. 2000) [ALJ must explicitly weigh the evidence and explain her rejection of the medical opinion of a treating physician]; see also Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)[Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]; Nester v. Astrue, No. 08-2045, 2009 WL 349701 at * 2 (E.D. Feb. 12, 2009)[Noting that the Court "may not consider post hoc rationalizations but must evaluate only the reasons and conclusions offered by the ALJ."].
Therefore, this case should be reversed and remanded for further consideration of whether Plaintiff is disabled in light of this new opinion evidence from Plaintiff's treating physician.
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for re-evaluation of the evidence as set forth hereinabove, and for such further administration action as may be necessary and appropriate. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge August 2, 2018
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).