Opinion
C/A No. 0:18-48-JMC-PJG
02-25-2019
Nancy Harvey, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Nancy Harvey, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(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. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In August 2014, Harvey applied for DIB and SSI alleging disability beginning July 12, 2013. Harvey's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on October 18, 2016 at which Harvey, who was represented by Kevin Klein, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on January 13, 2017 concluding that Harvey had not been disabled from July 12, 2013 through the date of the decision. (Tr. 22-31.)
Harvey was born in 1970 and was forty-two years old at the time of her alleged disability onset date. She has a high school education and has past relevant work experience as a boat canvas maker/installer, a home healthcare worker, and a cashier and shift leader at a restaurant. (Tr. 269.) Harvey alleged disability due to osteonecrosis in her knees, high cholesterol, and anxiety and depression. (Tr. 268.)
In applying the five-step sequential process, the ALJ found that Harvey had not engaged in substantial gainful activity since July 12, 2013—her alleged onset date. The ALJ also determined that Harvey's dysfunction of a major joint (knee osteonecrosis), anxiety, and affective disorder were severe impairments. However, the ALJ found that Harvey did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found, after consideration of the entire record, that Harvey retained the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant can occasionally push and pull with the lower extremities including foot controls. She can never climb ladders, ropes, and scaffolds, kneel, and crawl, and can occasionally climb ramps and stairs, balance, and crouch. The claimant should have no exposure to hazards. She is limited to simple, routine, and repetitive tasks, and time off-task can be accommodated by normal breaks. She should have only occasional interaction with the public.(Tr. 26.) The ALJ found that Harvey was unable to perform any past relevant work, but that considering Harvey's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Harvey could perform. Therefore, the ALJ found that Harvey had not been disabled from July 12, 2013 through the date of the decision.
Harvey submitted additional evidence to the Appeals Council, which denied Harvey's request for review on November 20, 2017, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
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); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "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." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). 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]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUE
Harvey raises the following issue for this judicial review:
Issue 1 Where new evidence is submitted to the Appeals Council that is sufficiently material that it might have affected the Commissioner's final decision, the Meyer case requires that evidence be weighed. In this case there was such evidence, and the Appeals Council explicitly refused to weigh it. Where there is new and material evidence submitted at the Appeals Council, and where that evidence might have affected the findings of the fact- finder, must the case be remanded so that Commissioner can weigh that evidence?(Pl.'s Br., ECF No. 13.)
DISCUSSION
As explained by Harvey in her brief, her issue stems from the fact that after the ALJ's decision, Harvey submitted new evidence to the Appeals Council which included opinion evidence in the form of a letter dated April 24, 2017 from Dr. Brian Rosenberg, Harvey's treating orthopedist. (Tr. 8.) Harvey argues that remand is warranted for the Commissioner to properly consider and weigh the new opinion evidence from Dr. Rosenberg.
The Appeals Council acknowledged this letter; however, it found:
The Administrative Law Judge decided your case through January 13, 2017. 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 January 13, 2017.(Tr. 2.)
The timing of Harvey's submissions present a couple of issues with regard to applicability of recent amendments to the social security regulations. In the Fourth Circuit, 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)). Longstanding Fourth Circuit precedent held that evidence is new "if it is not duplicative or cumulative," and that "[e]vidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Id. at 96. However, amendments to the regulations that recently went into effect also require a claimant to show that "there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. §§ 404.970(a)(5), 416.1570(a)(5) (eff. Jan. 17, 2017) (emphasis added). Notably, both the publication of the final rules in the Federal Register and a letter notifying Harvey of the change in the rules state that although the effective date of the rules was January 17, 2017, compliance with the new rules would not be required until May 1, 2017. See Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90,987 (Dec. 16, 2016) (to be codified at 20 C.F.R. pts. 404, 405, and 416); (Tr. 13). Nonetheless, Appeals Council informed Harvey that it would be applying the new regulations to her appeal, even though Harvey submitted her appeal as well as the additional evidence prior to May 1, 2017. However, regardless of whether Harvey has to only show a "reasonable possibility" or also meet the heightened "reasonable probability" standard, the court finds that remand is warranted for the reasons discussed below.
Another relatively recent amendment to the regulations requires a good cause showing. Prior to the amendments to the applicable regulations, when a claimant sought to present new evidence to the Appeals Council, she was not required to show good cause for failing to present the evidence earlier. Id. at 96 n.3; cf. 20 C.F.R. §§ 404.970(b), 416.970(b) (eff. until Jan. 17, 2017). However, also effective January 17, 2017, this subsection was amended to require the claimant to show good cause for not informing the ALJ about or submitting the evidence prior to the hearing. The Commissioner's brief argues that Harvey failed to address this new requirement and cannot establish good cause for failing to present this opinion evidence prior to the hearing. (See Def.'s Br. at 6-7, 12-13, ECF No. 15 at 6-7, 12-13.) However, regardless of whether this new standard is applicable to Harvey's appeal, as argued by Harvey, the Appeals Council explicitly stated that it found good cause in this case. Specifically, by letter dated March 24, 2017, the Appeals Council informed Harvey of the change in the rules, but it also stated:
Because your case was pending at the Appeals Council before our rule about when to give us evidence became effective, we will find that you showed good cause for not submitting additional evidence earlier. We will find that some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from telling us about or giving us the evidence earlier. We will make this good cause finding for additional evidence that you have already submitted and for additional evidence that you submit before we issue our action in your case.(Tr. 14.) Accordingly, the defendant's arguments on this issue are inapplicable.
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). In determining whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard, the court must " 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.' " Id. at 704 (alterations in original) (quoting Wilkins, 953 F.2d at 96). If the court cannot determine whether, in light of the additional evidence submitted, the Commissioner's decision is supported by substantial evidence, remand is warranted. Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits). The Meyer Court recognized, however, that in some cases the record would clearly show that the additional evidence did not cause the ALJ's decision to be unsupported by substantial evidence. See id. (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996)).
According to Harvey, the new evidence warrants remand for further consideration under controlling law. In light of the circumstances and content of this record, the court is constrained to agree that remand is warranted. First, the court finds that the Appeals Council erred in finding that the new opinion evidence signed by Dr. Rosenberg did not relate to the period on or before the date of the ALJ's decision. Although Dr. Rosenberg's opinion was dated after the ALJ's decision, the opinion clearly relates to the period on or before the date of the ALJ's decision because Dr. Rosenberg's opinion indicates that he first treated Harvey in 2014 and most recently treated her in December 2016 and specifically states that the functional limitations he opined have existed "at least throughout the time period [he] treated her." (Tr. 8.) Thus, this opinion clearly encompasses the relevant time period. Wilkins, 953 F.2d at 95-96; 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."); cf. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 345 (4th Cir. 2012) (holding that the Commissioner "must give retrospective consideration to medical evidence created after a claimant's last insured date when such evidence may be 'reflective of a possible earlier and progressive degeneration' ").
Further, the court finds that this evidence is not cumulative or duplicative, and in fact, appears to address some of the reasons offered by the ALJ in considering Harvey's application. Specifically, the ALJ discounted two earlier opinions from Dr. Rosenberg, which were "check the box" style opinions, based on inconsistencies between the opinions and a later treatment note. Dr. Rosenberg's newest opinion is a narrative letter explaining Harvey's condition and limitations in more detail and explaining why certain findings would not be noted in his examinations notes. Accordingly, this evidence from Dr. Rosenberg, which is a detailed opinion from a treating specialist, if properly considered, could likely impact the ALJ's residual functional capacity assessment and ultimately, the ALJ's decision. Therefore, the court finds that this new opinion evidence is material, and without analysis of this evidence the court cannot determine whether the ALJ's decision is supported by substantial evidence. See Wilkins, 953 F.2d at 96 ("Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome."); 20 C.F.R. §§ 404.970(a)(5), 416.1570(a)(5) (eff. Jan. 17, 2017) (requiring a claimant to also show "there is a reasonable probability that the additional evidence would change the outcome of the decision") (emphasis added); see also Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits).
The Commissioner argues that this evidence is not new; however, her arguments appear to improperly rely on the standard and caselaw interpreting the definition of "new" for a remand under sentence six of § 405(g) rather than sentence four. Compare Wilkins, 953 F.2d at 96 (explaining that evidence submitted to the Appeals Council is "new" "if it is not duplicative or cumulative") with Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (stating that pursuant to the sixth sentence of § 405(g), "[t]he district court does not affirm, modify, or reverse the Secretary's decision; it does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding.") and Sullivan v. Finkelstein, 496 U.S. 617, (1990) (explaining that as opposed to the fourth sentence of § 405(g), "[t]he sixth sentence of § 405(g) plainly describes an entirely different kind of remand, appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding"). The Commissioner also appears to reiterate the standards espoused by the amendments to the regulations and that Harvey failed to show good cause for failing to submit the evidence to the ALJ. However, as explained above, the Appeals Council found good cause based on the fact that these amendments became effective during the pendency of Harvey's appeal to the Appeals Council. Therefore, these arguments are unpersuasive.
As discussed above, it is questionable whether this increased standard would be applicable to Harvey.
RECOMMENDATION
Based on the foregoing, the court recommends 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. February 25, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).