Opinion
Civil Action No. 6:16-1900-BHH-KFM
07-12-2017
Patricia Grant, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II 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 filed an application for disability insurance benefits ("DIB") on December 4, 2012, alleging that she became unable to work on November 13, 2012. The application was denied initially and on reconsideration by the Social Security Administration. On June 26, 2013, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, her attorney, and Tricia Oakes, an impartial vocational expert, appeared at a hearing on October 8, 2014, considered the case de novo and, on December 11, 2014, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. 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 April 11, 2016. The plaintiff then filed this action for judicial review.
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 meets the insured status requirements of the Social Security Act through December 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since November 13, 2012, the alleged onset date (20 C.F.R. § 404.1571 et seq).
(3) The claimant has the following severe impairments: diabetes mellitus, asthma, emphysema, restless leg syndrome, benign hypertension, and obesity (20 C.F.R. § 404.1520(c)).
(4) 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, and 404.1526).
(5) After careful consideration of the entire record, I find that the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except the claimant can never climb ladders, ropes, or scaffolds, and the claimant should avoid concentrated exposure to dusts, fumes, gases, etc.
(6) The claimant is capable of performing past relevant work as a daycare worker. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from November 13, 2012, through the date of this decision (20 C.F.R. § 404.1520(f)).
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), 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. § 404.1505(a).
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. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(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 192.
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 Commissioner's decision, the court must uphold it if it supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 59 years old on her alleged onset date of disability (November 13, 2012), and she was 61 years old on the date of the ALJ's decision (December 11, 2014) (Tr. 68). She has a high school equivalency plus a two year degree in Early Childhood Development (Tr. 69). The plaintiff has past relevant work experience as a machine operator and daycare teacher (Tr. 84).
Evidence Before the ALJ
Pranay Patel, M.D., began treating the plaintiff prior to her onset date of disability. When the plaintiff was seen on January 27, 2011, after being in the hospital 15 days with pneumonia, Dr. Patel noted that she had no energy and felt extremely fatigued. A B-12 injection and a hormone injection were administered (Tr. 408). On February 9, 2011, the plaintiff reported feeling significantly better; however, she was now shaking at times and having trouble with anxiety. Dr. Patel noted that the plaintiff was still tachycardic, but her fatigue and tiredness had improved (Tr. 412). An estrogen injection was administered at that time and again on March 8, 2011 (Tr. 413-14). On March 16, 2011, the plaintiff's blood sugar was high at 250. Dr. Patel determined she had diabetes mellitus II, without complication uncontrolled; acute bronchitis; and acute sinusitis. A Decadron injection was administered (Tr. 416). The following week, Dr. Patel noted that the plaintiff's blood sugar was high at 270 (Tr. 418). On April 6, 2011. a hormone injection was administered (Tr. 422). On May 4, 2011, the plaintiff's blood sugar was between 180 and 200, and her blood pressure was better controlled; however, she again reported fatigue and tiredness (Tr. 425). A hormone injection was administered (Tr. 424).
On June 1, 2011, Dr. Patel administered B-12, hormone, and Decadron injections (Tr. 427). On June 24, 2011, the plaintiff complained that her hands were shaking. A hormone injection was administered on June 24, 2011, and again on July 20, 2011 (Tr. 429, 433). On August 9, 2011, Dr. Patel diagnosed cellulitis of the leg, dermatitis, and anxiety disorder not otherwise specified ("NOS"). Hormone injections were administered on August 9 and September 1, 2011 (Tr. 435, 438). On September 30, 2011, the plaintiff's blood sugars were stable, and her blood pressure was noted to be stable at home. The plaintiff reported having a lot of stress (Tr. 442). A hormone injection was administered (Tr.441). On October 14, 2011, Dr. Patel administered a Decadron injection (Tr. 444). On October 28, November 17, and December 16, 2011, hormone injections were administered (Tr. 446, 448, 450). On December 30, 2011, Dr. Patel noted that the plaintiff's blood pressure and blood sugar readings had been fluctuating. The plaintiff reported fatigue, tiredness, and lack of energy. Three injections were administered: B-12, hormone, and Decadron (Tr. 453-54). Hormone injections were administered again on January 18 and February 12, 2012 (Tr. 456-57). On March 7, 2012, Dr. Patel administered B-12, hormone, and Decadron injections (Tr. 460).
On March 29, 2012, the plaintiff reported that she could not afford her insulin and wanted to discuss changing that medication. Her blood pressure was stable (Tr. 472). Records also indicate that the rash on her legs was returning (Tr. 473). B-12 and hormone injections were administered (Tr. 470-74). B-12 and hormone injections were administered again on April 27, May 25, and June 20, 2012 (Tr. 462, 464, 465).
On June 29, 2012, Dr. Patel evaluated the plaintiff for increased panic attacks, back pain, and shortness of breath (Tr 466). The plaintiff reported using her albuterol inhaler more often and also experiencing increased anxiety, panic attacks, and back pain due to work. Her blood sugar was improving on Humulin insulin (Tr. 468). A spirometry test on June 29, 2012, showed "mod[erate] to severe copd" ( Tr. 499). On July 23, 2012, the plaintiff reported improvement in her shortness of breath with a Symbicort inhaler. She was given B-12 and hormone injections (Tr. 475). She reported that she still had panic attacks, but indicated they were not as severe as before (Tr. 476). B-12 and hormone injections were administered again on August 16 and September 12, 2012 (Tr. 477-78). On October 1, 2012, Dr. Patel indicated that the plaintiff's blood pressure was improved and stable, that her anxiety and depression were stable, and that the dermatitis on her legs was stable. B-12 and hormone injections were administered on October1 and on November 6, 2012 (Tr. 479-84).
On November 13, 2012, Dr. Patel evaluated the plaintiff for chest pain and shortness of breath. The plaintiff was in some distress with an oxygen saturation level of 80%, some diarrhea, nausea, vomiting, and back pain. After oxygen was administered in the office, her oxygen saturation level only increased to 90% (Tr. 485). The plaintiff was admitted into the hospital from Dr. Patel's office on November 13, 2012, due to acute respiratory failure. Records showed she had a history of chronic obstructive pulmonary disorder ("COPD") and had multiple admissions in the past for pneumonia. The initial chest x-ray showed right lung pneumonia. She was intubated due to her multilobar pneumonia and septic picture. She had some renal insufficiency (Tr. 240). John J. Gallagher, M.D., performed a cardiology consult on November 13, 2012. Dr. Gallagher noted that the plaintiff has a complicated medical history including COPD with multiple admissions for pneumonia, hypertension, diabetes, abnormal lipids, and reflux. She had shortness of breath. An electrocardiogram initially showed atrial fibrillation with rapid ventricular response. This did slow with Cardize (Tr. 301). Dr. Gallagher's impression was atrial fibrillation with rapid response, acute respiratory failure, COPD, right lower lobe pneumonia, congestive heart failure, chest pain of unknown etiology diabetes, acidosis, acute renal failure, low magnesium, diarrhea, elevated white count with pandemia, and hypertension. Dr. Gallagher changed the plaintiff from subcutaneous heparin protocol to full systemic protocol until her atrial fibrillation was resolved. He noted that plaintiff had atrial fibrillation in January 2011 under similar circumstances (Tr. 302). Upon discharge from the hospital on November 26, 2012, the plaintiff was diagnosed with acute respiratory failure, resolved; sepsis; strep pneumonia bacteremia, resolved; pneumonia bacteremia, status post course of intravenous antibiotics, resolved pneumonia; oral candidiasis, continuing with Nystatin swish and swallow; acute renal failure, resolved; hyponatremia, resolved; diabetes with steroid-induced hypoglycemia, continue with oral agents; and paroxysmal atrial fibrillation, rate controlled, continue with five mg Coumadin at bedtime (Tr. 240).
The plaintiff was seen in followup by Dr. Patel two days after being discharged in stable condition. She reported feeling well but being extremely fatigued. As a result of receiving IV antibiotics and breathing treatments while hospitalized, the plaintiff's depression medication had been stopped in the hospital but had been restarted since discharge. The plaintiff reported mild depression but no anhedonia or suicidal thoughts. Her International Normalized Ratio ("INR") was in the high range at 3.5. A hormone injection was administered (Tr. 488)
On December 3, 2012, the plaintiff was seen for an acute visit due to a sore throat and sinus pressure and fatigue, which had been present since her hospital discharge. She reported that after walking into the grocery store from the parking she would have to stop and rest. She was on Coumadin. Her INR was slightly elevated beyond therapeutic range on November 28, 2012, so a recheck was ordered (Tr. 491). Results showed INR level of 1.7 (Tr. 493). A chest x-ray was done, which showed a probable early infiltrate right low lobe (Tr. 498). A B-12 injection was administered (Tr. 491).
On January 3, 2013, Dr. Patel evaluated the plaintiff for continued breathing problems. The plaintiff described getting short of breath with minimal exertion. Her blood sugars were still running a little high but had come down a little from the level at hospital discharge. Dr. Patel noted that "[s]he is unable to go back to work at the moment because of her trouble with breathing and she works around children and that sometimes make[s] [sic] her sick again if the kids are sick" (Tr. 494). B-12 and hormone injections were administered (Tr. 496).
On January 16, 2013, Dr. Patel filled out a questionnaire regarding the plaintiff's mental condition (Tr. 511). Her mental diagnoses were depression and anxiety. She has been prescribed Lorazepam, Trazodone, and Wellbutrin, which helped her mental condition. No psychiatric care had been recommended. He noted that she had a normal mental status examination, namely that she was oriented to time, person, place, and situation; she had intact thought process; appropriate thought content; normal mood/affect; good concentration; and good memory. He opined that the plaintiff would have only a slight work-related limitation in function due to her mental condition (Tr. 511).
On January 31, 2013, Dr. Patel reevaluated the plaintiff. The plaintiff reported having no strength or energy since her hospitalization. Records show that the plaintiff had paroxysmal atrial fibrillation while hospitalized and that she was being prescribed Warfarin. Dr. Patel noted that the plaintiff had her INR checked regularly since that time. The plaintiff reported feeling palpitations every once in a while but indicated that the palpitations improve with rest (Tr. 522). The plaintiff's INR level was 1.4 (Tr. 524). Another Spirometry test was performed, and results were determined to be abnormal with a test comment of "cont symbicort" (Tr. 525). B-12 and hormone injections were administered (Tr. 523). An INR recheck was done on February 11, 2013, with results showing a higher level at 2.2 (Tr. 527).
On February 12, 2013, state agency physician Dale Van Slooten, M.D., reviewed the medical evidence and opined that the plaintiff did not have a severe physical impairment (Tr. 92). Also on this date, a consultative evaluation pulmonary function test was administered to the plaintiff. Notes indicate that no breathing medications were taken prior to testing. The plaintiff gave good effort and cooperation. It was also noted that no post-bronchial testing was needed (Tr. 529).
On February 13, 2013, Dr. Patel evaluated the plaintiff for complaints of feeling light-headed in the mornings when getting out of bed. The plaintiff was noted to be on Coumadin for her atrial fibrillation and that her INR was considered at therapeutic level two days prior. Records also noted that the plaintiff had problems with anxiety and took Lorazepam (Tr. 615). On February 26, 2013, Dr. Patel evaluated the plaintiff for followup of multiple medical problems, including fatigue. He administered B-12, hormone, and Decadron injections (Tr. 612).
On March 6, 2013, James N. Ruffing, M.D., performed a mental status consultative evaluation of the plaintiff at the Commissioner's request. Dr. Ruffing was provided with the January 16, 2013, mental medical source statement completed by Dr. Patel for his record review (Tr. 535). Dr. Ruffing stated:
I did not see evidence consistent with a diagnosis of bipolar disorder as she alleged. She does report some mood instability, getting angry about once every three months. She stated that she is not depressed. She just does not care about things. This could indicate some depression that may be responding appropriately to her treatment regimen. Her records indicate that she has been diagnosed with depression and anxiety, and she did not demonstrate significant observable indices or complaints for anxiety with this exam.(Tr. 537). Dr. Ruffing stated that in his opinion the plaintiff was "able to understand and respond to the spoken word. She is able to attend and focus without significant distractibility. She seems able to manage the concentration, persistence, and pace. She does appear capable of managing her finances, if awarded benefits" (Tr. 538).
On March 28, 2013 the plaintiff 's PT/INR levels were 45.7/4.4 (high range)(Tr. 608). Her blood pressure was noted to be stable, and her blood sugar levels were less than 150 at home on insulin and metformin. Her anxiety was stable on Lorazepam. The plaintiff reported fatigue and having to rest after any activity such as grocery shopping. She also reported intermittent low back pain with activity like sweeping or mopping, which was alleviated with ibuprofen (Tr. 609). B-12 and hormone injections were administered (Tr. 607).
A psychiatric review technique questionnaire form was completed by a non-examining consultant on contract to the Administration, on April 2, 2013, indicating that the plaintiff's medically determinable mental impairments were non-severe (Tr. 93).
When the plaintiff was seen on April 2, 2013, her PT/INR levels were 66.2/6.5 (high range)(Tr. 603). She reported having congestion and a dry cough but no problems breathing (Tr. 604). A Decadron injection was administered (Tr. 603). On April 30, 2013, the plaintiff 's PT/INR levels were 11.9/1.1(normal range)(Tr. 598). She had increased her insulin to 45 units three times a day with meals and was taking metformin too, but her blood sugar readings were still in the 200s. The plaintiff reported having some depression but felt stable on Wellbutrin and Trazodone, and her anxiety was noted to be controlled with Lorazepam (Tr. 600). The plaintiff was also experiencing muscle spasms at night over her whole body, but indicated that Flexeril helped this (Tr. 601). A hormone injection was administered (Tr. 598).
On May 30, 2013, Dr. Patel evaluated the plaintiff for followup for her blood sugar and blood pressure. The plaintiff reported having insomnia and jerking in her arms and legs. B-12 and hormone injections were administered (Tr. 593).
On June 11, 2013, James Upchurch, M.D., another state agency physician, reviewed the plaintiff's medical records and concurred with Dr. Van Slooten's opinion of February 12, 2013 (Tr. 102-103).
On July 1, 2013, Dr. Patel evaluated the plaintiff for malaise and fatigue, increased anxiety due to stress in her family and saw her for an INR check (Tr. 589). Her PT/INR levels were 11.9/1.1 (normal range)(Tr. 588). B-12 and hormone injections were administered (Tr. 589). On July 31, 2013, Dr. Patel evaluated the plaintiff for an infection of her left third toe, difficulty sleeping at night, and problems with anxiety. Her PT/INR levels were 19.1/1.8 (high range)(Tr. 584-85). A hormone injection was administered (Tr. 583). On August 30, 2013, the plaintiff was seen due to dyspnea on exertion with moderate activity and fatigue (Tr. 577). Her PT/INR levels were 20.1/1.9 (high range). B-12 and hormone injections were administered (Tr. 580). On September 30, 2013, the plaintiff had a slightly improved A1C, but it was still considered high, so diet and compliance were discussed. The plaintiff reported continued fatigue (Tr. 573). Her PT/INR levels were 15.9/1.5 (high range). B-12 and hormone injections were administered (Tr. 575). On October 2, 2013, Dr. Patel evaluated the plaintiff for vomiting and low back pain. A Phenergan injection was administered (Tr. 569-71). On October 30, 2013, the plaintiff was seen for problems with chronic back pain and anxiety as well as continued fatigue and tiredness. She reported that the B-12 injections helped a little bit. Her PT/INR levels were 10.7/1.0 (normal range). B-12 and hormone injections were administered (Tr. 567).
On December 2, 2013, Dr. Patel evaluated the plaintiff for followup of her multiple chronic problems and increased problems with restless leg syndrome symptoms, insomnia, and shortness of breath. Records note that the plaintiff had underlying COPD, which was quite severe, and that she had a lot of pain in her back and legs, which was getting worse and causing problems with walking or standing (Tr. 564). Her PT/INR levels were 49.4/4.8 (high level). B-12 and hormone injections were administered (Tr. 563). On December 11, 2013, the plaintiff 's symptoms had not improved from her last office visit despite her having taken Mucinex as directed. She reported having trouble breathing and feeling short of breath. Examination revealed audible wheezing. A Decadron injection was administered (Tr. 558). On December 20, 2013, the plaintiff reported feeling much better and had finished her medications. She also reported blisters and soreness in her mouth, possibly from diabetes and thrush associated with oral antibiotic use (Tr. 555).
On March 3, 2014, Dr. Patel evaluated the plaintiff for increasing allergy problems. The plaintiff had no wheezing or difficulty breathing. Records indicated that her blood sugar levels were improving but were not completely controlled. The plaintiff reported having trouble with increased restless leg symptoms at night and sometimes during the day (Tr. 551). Examination revealed swelling of the limb and trace edema in her extremities with reduced monofilament sensation in her feet (Tr. 552). Dr. Patel advised the plaintiff to continue her furosemide tablet and to "elevate legs above heart height as much as possible." Her PT/INR levels were 10.4/1.0 (normal range). B-12, hormone, and Decadron injections were administered (Tr. 550-51). On May 19, 2014, the plaintiff was seen for chronic allergic rhinitis. Another Decadron injection was administered (Tr. 546). On June 3, 2014, the plaintiff reported that she could no longer afford the medication for her atrial fibrillation because of a price increase. She also complained of allergy symptoms. The plaintiff had chronic anemia, but she had not been able to see a gastroenterologist due to financial concerns. Dr. Patel's examination showed trace edema in the extremities and reduced monofilament sensation in the plaintiff 's feet. Her INR level was 2.4 (high level). B-12 and hormone injections were administered on June 3 and again on July 1 and August 5, 2014 (Tr. 543, 544, 632, 630).
On October 6, 2014, Dr. Patel evaluated the plaintiff for a rash on her left calf, a lump on her abdomen, and a reported episode of altered alertness two days prior (Tr. 626). Her blood sugar had been in the 400's three days prior and in the 200's two days prior. She was prescribed Keflex for cellulitis (Tr. 627). A hormone injection was also administered (Tr. 629).
At the administrative hearing, the plaintiff testified that she obtained a GED and had a degree in early childhood development (Tr. 69). She reported that she previously worked teaching three and four year olds through play at a daycare (Tr. 70). She stated that she was unable to work because of difficulty breathing and swelling in her legs (Tr. 74). The plaintiff testified that her worst problems are her breathing and swelling in her legs. She stated that she could only walk about 30 minutes before her back hurt, she would be out of breath, and her legs would be swollen and hurting (Tr. 74). She further testified that she could stand about 20 minutes before needing to lie down and take a break. When her legs feel better, she gets up and does something else (Tr. 76).
Also at the administrative hearing, the ALJ sought testimony from a vocational expert to determine whether there were jobs in the national economy that an individual with the plaintiff's limitations could perform. The ALJ asked the vocational expert to consider an individual of the plaintiff's age, education, and work experience, who was able to perform light work with no climbing ladders, ropes, or scaffolds, and must avoid concentrated exposure to respiratory irritants, such as dust, fumes, and gases. The vocational expert responded that such an individual could perform the plaintiff's past relevant work, as a daycare teacher. The ALJ asked the vocational expert a second hypothetical that added "can perform detailed but not complex tasks," and the vocational expert answered that the daycare teacher job could not be performed. In hypothetical three, the ALJ asked about a variation on sedentary and/or simple, routine, repetitive tasks and asked if it were correct that a limitation to detailed but not complex tasks or a limitation to sedentary work would knock out the plaintiff's past relevant work. The vocational expert answered that there would be no past jobs available under these limitations (Tr. 83-86).
Evidence Submitted to the Appeals Council
The plaintiff submitted the following evidence to the Appeals Council:
In a questionnaire dated February 3, 2015, Dr. Patel stated that the plaintiff could not engage in more than sedentary work on a sustained basis. His diagnoses supporting this limitation were COPD, back pain, and leg swelling. Dr. Patel indicated that the plaintiff had been so limited since at least January 2011 (Tr. 9).
In a statement dated February 16, 2015, Sheila Busby, the plaintiff's supervisor at the daycare, stated that, in the plaintiff's capacity as a daycare worker in charge of the younger children, she was on her feet all day and had to clean the center with chemicals and bleach. Ms. Busby indicated that the plaintiff did an excellent job but explained that in the last year of employment the plaintiff developed serious health problems. Ms. Busby stated that the plaintiff was short-winded, moved slowly, had trouble standing up and walking, and was in obvious pain. Ms. Busby stated, "She was finally out for a spell, and we agreed that there was no way she could continue with the job." Ms. Busby stated that the plaintiff had been unable to do the job for some time, but was kept employed due to her motivation and good work record (Tr. 15).
In a statement dated March 2, 2015, Dr. Patel opined that the plaintiff had a moderate level of COPD that was not disabling by itself. However, he explained that the plaintiff's occasional asthma flares and fairly frequent respiratory infections combined to make her breathing more difficult and therefore caused her to be unable to stand and walk more than a few hours a day. He stated that this was further aggravated by her job as daycare worker, since the children she came into contact with tended to be a vehicle for respiratory infections, which in his opinion disqualified her from that work. Dr. Patel stated that, beginning in March 2014, the plaintiff was consistently positive for neuropathy on monofilament testing, which established numbness in her feet. He indicated that from that date on the plaintiff would not have been able to stand or walk more than a few hours a day due to this problem, which was to be expected in light of her long-term chronic diabetes. In March 2014, the plaintiff also began testing positive for edema in her legs. Dr. Patel noted that the plaintiff's edema was often documented as "trace" but that this was because the plaintiff had been elevating her legs as much as possible under his orders. He stated that had the plaintiff not been elevating her legs as instructed, and had instead been standing and walking, her edema would have been "dramatically worse." Dr. Patel indicated that the plaintiff had also developed several lower extremity open, poorly-healing wounds that were most probably related to poor circulation, which was the underlying cause of her edema. Dr. Patel stated that due to the edema and risk of further infections, any job requiring more than occasional standing and walking was contraindicated (Tr. 12).
ANALYSIS
The plaintiff argues that the case should be remanded (1) for consideration of evidence that was submitted to the Appeals Council and (2) because the ALJ erred in failing to properly evaluate the demands of her past relevant work (doc. 14 at 18, 23).
As set forth in detail above, the plaintiff submitted to the Appeals Council two opinions from Dr. Patel and a statement from her former supervisor. The Appeals Council found as follows:
[W]e considered the reasons you disagree with the decision in the material listed on the enclosed Order of Appeals Council.
We found that this information does not provide a basis for changing the [ALJ's] decision.
We also looked at the Statement from Sheila Busby, dated February 16, 2015 (4 pages); Statement from Pranay Patel, M.D., dated March 2, 2015 (6 pages); and Questionnaire from [Dr.] Patel, dated February 3, 2015 (4 pages). The [ALJ] decided your case through December 11, 2014. This new
information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before December 11, 2014.(Tr. 2).
In the referenced order, the Appeals Council stated that it was making the plaintiff's three-page brief a part of the record as Exhibit 11E (Tr. 5; see Tr. 233-35), but it did not state that Dr. Patel's opinions and Ms. Busby's statement were being made part of the record. However, they are included in the record before this court (see Tr. 7-15). --------
The plaintiff argues that remand is warranted for the Commissioner to properly consider and weigh the new evidence because "[t]here were no treating physicians' opinions related to [the plaintiff's] physical impairments in the file before the ALJ" (doc. 14 at 22). As noted by the plaintiff, the ALJ did have before him Dr. Patel's opinion as to her mental impairments, in which Dr. Patel opined that her mental impairments caused only a slight work-related limitation in functioning (doc. 14 at 22; see Tr. 511). The ALJ gave that opinion great weight (Tr. 40-41). However, the only opinions in the record before the ALJ as to the plaintiff's physical impairments were those of the non-examining state agency physicians, who found the plaintiff had no severe physical impairments. The ALJ gave those opinions little weight (Tr. 47). The ALJ specifically noted that "[t]here are no opinions or medical source statements from treating physicians to support the claimant's allegations regarding her physical . . . allegations" (Tr. 47).
The law provides that evidence submitted to the Appeals Council with the request for review must be considered in deciding whether to grant review " 'if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision.' " Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir.1991) (en banc) (quoting Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir.1990)). Evidence is new "if it is not duplicative or cumulative." Id. at 96. "Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Id. The United States Court of Appeals for the Fourth Circuit has explicitly held that "[t]he Appeals Council need not explain its reasoning when denying review of an ALJ decision." Meyer v. Astrue, 662 F.3d 700, 702 (4th Cir.2011). The court stated that when the Appeals Council receives additional evidence and denies review, the issue for the court is whether the ALJ's decision is supported by substantial evidence and reached through the application of the correct legal standard. Id. at 704. "In making this determination, we 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.'" Id. (quoting Wilkins, 953 F.2d at 96).
The ALJ in Meyer issued a decision denying benefits and noted therein that Meyer failed to provide an opinion from his treating physician. 662 F.3d at 702. When Meyer requested review of his claim by the Appeals Council, he submitted a letter from a physician that detailed Meyer's injuries (from a fall) and significant physical restrictions. The Appeals Council summarily denied review but made the letter part of the administrative record. The Magistrate Judge in Meyer recommended that the Commissioner's decision be affirmed because the doctor who authored the report was not a treating physician, and thus the report should be accorded only minimal weight. The district court adopted the Report and Recommendation. Id. at 704. The Court of Appeals, however, determined that the doctor was in fact a treating physician, the report submitted to the Appeals Council was the only report in the record from a treating physician, and the report filled an "evidentiary gap" emphasized by the ALJ. Id. at 707. The court remanded for additional fact finding to reconcile conflicts between the newly submitted evidence and the evidence the ALJ had considered, noting that the treating physician's opinion corroborated the opinion of an evaluating physician, which had been rejected by the ALJ, but other record evidence credited by the ALJ conflicted with the new evidence. Id. The court concluded: "Thus, no fact finder has made any findings as to the treating physician's opinion 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." Id.
The plaintiff argues that the Appeals Council erred in summarily rejecting the new evidence based upon the date it was prepared (doc. 14 at 21-22). 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. Patel specifically stated that his opined limitations had been present since "at least January 2011" (Tr. 9). He also noted in support of his opinion the plaintiff's positive test results for neuropathy and edema beginning in March 2014 (Tr. 12), which predates the ALJ's December 2014 opinion. Further, Ms. Busby's letter relates to the last year that the plaintiff worked (Tr. 15). Although the opinions of Dr. Patel and the statement by Ms. Busby are dated after the ALJ's decision, they clearly relate to the period on or before the date of the ALJ's decision. See Reichard v. Barnhart, 285 F.Supp.2d 728, 733 (S.D. W.Va.2003) (stating that the requirement that new evidence must relate 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 possibility that the new evidence could impact the RFC assessment. As the court stated in Meyer, "In view of the weight afforded the opinion of a treating physician . . . analysis from the Appeals Council or remand to the ALJ for such an analysis would be particularly helpful when the new evidence constitutes the only record evidence as to the opinion of the treating physician." 662 F.3d at 706 (citation omitted). Accordingly, remand is appropriate for consideration of Dr. Patel's opinions as to the plaintiff's physical impairments and Ms. Busby's letter describing the plaintiff's duties and difficulties during her last year of her work at the daycare.
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegation of error. 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); Hancock v. Barnhart, 206 F. Supp.2d 757, 763-764 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). However, upon remand, the Commissioner should consider the remaining allegation that the ALJ failed to properly evaluate the demands of the plaintiff's past relevant work (doc. 14 at 23-27).
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.
s/ Kevin F. McDonald
United States Magistrate Judge July 12, 2017
Greenville, South Carolina