Opinion
C/A No. 2:18-cv-01323-BHH-MGB
07-10-2019
BRIAN HOWELL, Plaintiff, v. ANDREW SAUL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local 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). Plaintiff Brian Howell ("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 Administration (the "Administration") regarding his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that the Court affirm the Commissioner's decision.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 43 years old on his alleged disability onset date of April 1, 2014. (R. at 20, 82, 90, 101, 110; Dkt. No. 9 at 4.) Plaintiff alleged disability due to a back injury. (R. at 82, 90, 101, 110.) Plaintiff has past relevant work as an air conditioner installer, pipe fitter, and framer. (Id. at 29; Dkt. No. 9 at 4.)
Plaintiff filed an application for DIB on July 15, 2014, and an application for SSI on June 26, 2014. (R. at 20, 98, 100, 119, 121; Dkt. No 9 at 4.) His applications were denied initially on August 27, 2014, and on reconsideration on October 8, 2014. (R. at 20, 88-89, 96-97, 108-09, 117-18.) After an initial hearing before the Administrative Law Judge ("ALJ") on June 22, 2016, (id. at 51-80), and a supplemental hearing on December 7, 2016, (id. at 40-50), the ALJ issued a decision on April 4, 2017, and found that Plaintiff was not disabled (id. at 20-31). The Appeals Council denied Plaintiff's request for review, (id. at 1-4), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the decision:
(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 April 1, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: lumbar degenerative disc disease, status post right ankle ORIF, and S1 joint dysfunction (20 CFR 404.1520(c) and 416.920(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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), with the non-exertional limitations that he cannot use ladders and can occasionally stoop, crawl, crouch, and kneel.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on March 17, 1971 and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).(Id. at 22-30.)
(8) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) 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 CFR Part 404, Subpart P, Appendix 2).
(10) 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 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from April 1, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability to "engage in 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" twelve months. See 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382(a)(3)(A) (SSI context).
"[T]he definition of disability is the same under both DIB and SSI. . . ." Manson v. Colvin, No. 9:12-cv-1157-TLW-BM, 2013 WL 4042188, at *2 n.2 (D.S.C. Aug. 8, 2013) (citing Emberlin v. Astrue, No. 06-cv-4136, 2008 WL 565185, at *1 n.3 (D.S.C. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of his disability claim. First, Plaintiff argues that the ALJ committed reversible error by discounting Plaintiff's subjective complaints based on his failure to obtain additional medical treatment. More specifically, Plaintiff claims that the ALJ should have considered evidence of Plaintiff's financial constraints and determined whether such constraints affected Plaintiff's ability to obtain medical care. (Dkt. No. 9 at 16-18.) Next, Plaintiff claims that the ALJ failed to give proper weight to the opinion of his treating physician, Dr. David Mitchell, M.D. (Id. at 18-20.) Finally, Plaintiff claims that the Appeals Council erred in failing to consider new evidence submitted by Plaintiff in support of his appeal. (Id. at 20-26.) The undersigned considers these arguments in turn.
I. Consideration of Plaintiff's Subjective Complaints
In evaluating a claimant's subjective symptoms, the ALJ follows a two-step process under which he must first determine whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms. Tyler v. Berryhill, No. 8:15-CV-04457-JDA, 2017 WL 461008, at *9 (D.S.C. Feb. 3, 2017). After determining the presence of an impairment, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which those symptoms limited his functioning. Id. at *10.
In evaluating a claimant's symptoms, the decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *9. Specifically, the ALJ's decision must "consider all of the evidence in an individual's record," including but not limited to, the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; any measures other than treatment the individual uses or has used to relieve pain or other symptoms; and any other factors concerning the individual's functional limitations and restriction due to pain or other symptoms. SSR 16-3p, at *2; see also 20 C.F.R. §§ 404.1529(c) and 416.929(c).
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p, and became applicable on March 28, 2016. 2017 WL 5180304, at *13. Plaintiff's applications were adjudicated after March 28, 2016, and, thus, the undersigned has analyzed Plaintiff's allegations under SSR 16-3p. The undersigned notes that SSR 16-3p discontinues use of the term "credibility;" however, "the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider the claimant's report of his own symptoms against the backdrop of the entire case record." Best v. Berryhill, No. 0:15-CV-02990-DCN, 2017 WL 835350, at *4 n.3 (D.S.C. Mar. 3, 2017) (internal citations omitted).
The ALJ may not reject "an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual." SSR 16-3p, at *5; see also Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (noting that "subjective evidence of pain intensity cannot be discounted solely based on objective medical findings"). "This is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs [his] ability to work." See Burrell v. Colvin, No. 0:12-CV-1082-MGL, 2013 WL 5350670, at *9 (D.S.C. Sept. 23, 2013) (citing Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996)). Indeed, the ALJ need not accept the claimant's subjective complaints "to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment." Id.
Here, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to produce the [] alleged symptoms." (R. at 27.) However, the ALJ found that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record." (Id.) Plaintiff contends the ALJ improperly based this determination on Plaintiff's failure to obtain additional medical treatment without addressing whether such failure was due to a lack of funding. (Dkt. No. 9 at 16-18.) Specifically, Plaintiff points to the following language from the ALJ's decision:
Despite the complaints of allegedly disabling symptoms, there have been significant periods-of-time since the alleged onset date during which the claimant has not taken any medications for those symptoms. The claimant noted on June 2, 2014, that he only took Goody's Powders (Exhibit 3F). On August 25, 2016, the claimant stated that he took over the counter medications only (Exhibit 11F).(Id. at 16; R. at 27.)
The Fourth Circuit has long held "that it is appropriate for the ALJ to consider the conservative nature of a plaintiff's treatment—among other factors—in judging the credibility of the plaintiff." Dunn v. Colvin, 607 F. App'x 264, 273 (4th Cir. 2015); see also Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994) (noting that an unexplained inconsistency between the claimant's characterization of the severity of his condition and the level of treatment he received to alleviate that condition is highly probative of the claimant's credibility). However, a claimant may not be penalized for failing to seek treatment he cannot afford. Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986). An ALJ should not discount a claimant's subjective complaints based on his failure to seek medical treatment when he has asserted—and the record does not contradict—that he could not afford such treatment. See Hodge v. Colvin, No. 8:15-CV-00440-JMC-JDA, 2016 WL 4238646, at *18 (D.S.C. July 8, 2016), adopted, 2016 WL 4196670 (D.S.C. Aug. 8, 2016) (referencing Lovejoy, 790 F.2d at 1117).
As Plaintiff correctly notes, the ALJ did not address Plaintiff's ability to afford treatment in his analysis of Plaintiff's subjective complaints, and there is evidence in the record that Plaintiff's funds were limited. (R. at 7, 68-69, 71, 474-76.) However, there is no express evidence in the record that Plaintiff's healthcare providers recommended stronger, more extreme treatment or medication, and that Plaintiff was unable to obtain such treatment because of his financial constraints. To the contrary, Plaintiff's medical record reflects generally conservative treatment during the relevant time period: Plaintiff saw his treating physician Dr. Mitchell on an as-needed basis, which included only a handful of appointments over the course of several years; Plaintiff was prescribed pain medication (for example, Tramadol) to manage his symptoms; Plaintiff treated his pain by sitting in a tub of warm water; and Plaintiff was instructed by Dr. Mitchell to apply heat and/or ice to his lower back and proceed with physical therapy. (See id. at 26-27, 65, 332-34, 341-44, 468, 474-76.) Indeed, the only additional treatment specifically mentioned in the medical record are S1 injections, which amount to "conservative" care and, therefore, do not indicate that Plaintiff needed a stronger treatment above-and-beyond his already conservative treatment plan. See Smith v. Colvin, No. 2:14-CV-3424-TMC, 2016 WL 943667, at *4 (D.S.C. Mar. 14, 2016) (noting that the plaintiff was treated with pain medication and injections, which are generally considered conservative treatment).
Plaintiff also argues that he was unable to afford a CT myelogram ordered by Dr. Mitchell, and that the results of the test could have confirmed the severity of his back pain. (Dkt. No. 9 at 18.) However, it is unclear whether the test would have resulted in a more intense treatment regimen for Plaintiff; indeed, Dr. Mitchell's treatment records make no further mention of the myelogram following his initial recommendation in April 2016. Regardless, as discussed in greater detail above, even if the ALJ erred in failing to consider Plaintiff's inability to pay for the myelogram, the error was harmless and does not warrant remand.
For the reasons stated above, it does not appear that the ALJ penalized Plaintiff for failing to seek treatment he could not afford. Rather, Plaintiff seems to have followed the treatment recommended by his healthcare providers, but that recommended treatment was limited. Accordingly, the undersigned finds that the ALJ did not err in relying on Plaintiff's conservative medication regimen in assessing his subjective complaints of pain. See e.g., Campbell v. Astrue, No. 8:08-CV-02018-CMC-BHH, 2009 WL 2750080, at *10 (D.S.C. Aug. 25, 2009) (finding that the ALJ could have drawn certain conclusions about the severity of the plaintiff's condition where the plaintiff failed to show that his doctors recommended "more serious medication" than what he was able to afford); Smoak v. Berryhill, No. 5:17-CV-1170-JMC-KDW, 2018 WL 4599861, at *10 (D.S.C. June 6, 2018), adopted sub nom. Smoak v. Comm'r of Soc. Sec. Admin., 2018 WL 4272170 (D.S.C. Sept. 7, 2018) (affirming ALJ's decision where, other than plaintiff's testimony at the administrative hearing, there was no evidence that plaintiff wanted to receive, or was prescribed, additional treatment for her back pain and was unable to afford such treatment); see also Gross v. Heckler, 785 F.2d 1163, 1165-66 (4th Cir. 1986) (finding that a condition is not disabling when the claimant's symptoms are reasonably controlled by conservative medication and treatment).
However, even if the Court gives Plaintiff the benefit of the doubt and concludes that the ALJ erred in failing to address the impact of Plaintiff's financial constraints on his ability to pursue further treatment, any such error is harmless. Indeed, viewing the ALJ's decision in its entirety, the conservative nature of Plaintiff's medication regimen was only one factor on which the ALJ relied in determining that Plaintiff's impairments did not totally preclude him from performing work of any kind. Specifically, the ALJ relied on Plaintiff's relatively unremarkable medical examinations; the steady and controlled nature of Plaintiff's impairments; the routine treatment indicated in Plaintiff's medical records; and the medical opinions of the state agency consultants. Notably, the ALJ also gave credit to many of the subjective complaints Plaintiff reported during his medical appointments.
For example, in reaching Plaintiff's residual functional capacity ("RFC"), the ALJ noted, among other things, that Plaintiff visited the Spartanburg Emergency Room for back pain in June 2014, but denied any numbness or weakness, displayed full range of motion and good posture, and was in no obvious discomfort. (R. at 26, referencing R. at 315-20.) The ALJ also noted that Plaintiff saw Dr. Mitchell in September 2015 for back pain, but other than a possibly loose S1 screw, Plaintiff's fusion looked good. (Id. at 26, referencing R. at 332-34.) Plaintiff displayed a "good gait," 5/5 muscle strength, and full range of motion; reported a pain level of 5/10; and was instructed to continue seeing Dr. Mitchell only as needed. (Id.) When Plaintiff visited Dr. Mitchell again in April 2016, Plaintiff reported that "overall, he [was] doing fairly well with his low back," and that his pain level was only 5/10 when lifting objects or bending. (Id., referencing R. at 341-44.) On examination, Plaintiff was "ambulating very well," and x-rays showed that Plaintiff's hardware was "in excellent position with good overall central decompression" at L4-L5 and L5-S1. (Id.)
In addition to Plaintiff's medical history, the ALJ also reviewed the medical opinions in the record, including that of state agency consultative examiner Dr. W. Russell Rowland, M.D., who determined that Plaintiff's conditions imposed no physical limitations on his ability to work. (Id. at 27, referencing R. at 468-70.) However, in light of the medical history discussed above, the ALJ gave little weight to Dr. Rowland's opinion and instead credited Plaintiff's complaints of "continued pain, although mild." (Id. at 29.) Accordingly, the ALJ placed certain restrictions on Plaintiff's RFC to account for his symptoms, including only occasional stooping, crouching, kneeling, and crawling, and no use of ladders. (Id. at 28.)
As evidenced by the ALJ's comprehensive review of Plaintiff's medical history, the medical opinions of record, and Plaintiff's own complaints to his healthcare providers, the undersigned finds that the ALJ's reliance on Plaintiff's medication regimen was only one factor in his overall assessment of Plaintiff's functional limitations; consequently, any failure to discuss Plaintiff's financial constraints in relation to his medication is harmless error. See, e.g., Morton v. Colvin, No. 8:16-CV-232-MBS-JDA, 2016 WL 11201443, at *18 (D.S.C. Dec. 7, 2016), adopted sub nom. Morton v. Berryhill, 2017 WL 1044847 (D.S.C. Mar. 20, 2017) (finding that any error by the ALJ in failing to discuss and consider the plaintiff's failure to pursue additional treatment due to her finances was harmless error where ALJ also relied on the relatively normal results of the objective medical examinations in discounting plaintiff's testimony about her alleged functional limitations); Bazar v. Colvin, No. 9:14-CV-537-TMC, 2015 WL 1268012, at *11 (D.S.C. March 19, 2015) (concluding that failure to discuss the plaintiff's inability to afford additional treatment was harmless where ALJ did not determine the RFC based solely on lack of treatment, but rather, noted it as one of several factors).
Indeed, to rule otherwise would essentially require the undersigned to reweigh the totality of the evidence and come to its own conclusion regarding Plaintiff's subjective complaints, which is not within the province of this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (holding that a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ); see also Hancock, 667 F.3d at 472 (noting that "[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court). Accordingly, the undersigned finds that the ALJ's analysis was proper under SSR 16-3p, and his evaluation of Plaintiff's subjective complaints was supported by substantial evidence.
II. Treating Physician Opinion
Under the regulations of the Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. 20 C.F.R. §§ 404.1545 and 416.945; see also 20 C.F.R. §§ 404.1527 and 416.927. The regulation, known as the "Treating Physician Rule," imposes a duty on the Commissioner to "evaluate every medical opinion we receive." 20 C.F.R. §§ 404.1527(c) and 416.927(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
The undersigned notes that the "Treating Physician Rule" applies only to claims filed before March 27, 2017. See 20 C.F.R. §§ 404.1527(c) and 416.927(c); see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017).
Under some circumstances, the opinions of treating physicians are to be accorded controlling weight. See id. (stating that the opinion of a treating physician is given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record"). However, even where the opinions of the claimant's treating physicians are not accorded controlling weight, the Commissioner is still obligated to weigh those opinions in light of a broad range of factors, including the examining relationship, the nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. 20 C.F.R. §§ 404.1527(c)(1)-(5) and 416.927(c)(1)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188, at *5; see also 20 CFR §§ 404.1527(c)(2) and 416.927(c)(2); Hendrix v. Astrue, C/A No. 1:09-1283-HFF, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010) (noting that although "an express discussion of each factor is not required," the ALJ must demonstrate that he applied the relevant factors in evaluating the opinion and provide good reasons for his decision).
In the instant case, Plaintiff's treating physician, Dr. Mitchell, completed a medical assessment questionnaire dated June 15, 2016, indicating that, as of April 13, 2016, if Plaintiff attempted to work eight (8) hours per day, five (5) days per week, his impairments would have caused him to take daily breaks away from his work station "for significantly more than an hour," and to miss more than three (3) days of work each month (the "2016 Opinion"). (R. at 441.) In giving "partial weight" to Dr. Mitchell's 2016 Opinion, the ALJ provided the following explanation:
Dr. Mitchell's extreme limitations are not supported by the doctor's own medical records. For example, on January 25, 2012, the claimant had normal gait and good bilateral lower extremity strength (Exhibit 2F). On April 13, 2016, the claimant had some mild paraspinal spasms and only a little tenderness over the right side notch. The claimant was ambulating very well (Exhibit 5F).(Id. at 28.)
Upon review of the parties' arguments, the medical evidence, and the ALJ's decision, the undersigned finds that Plaintiff has failed to demonstrate that the ALJ improperly applied 20 C.F.R. §§ 404.1527(c) and 416.927(c) in evaluating Dr. Mitchell's 2016 Opinion. Although Plaintiff points to selective evidence in the record that may arguably support Dr. Mitchell's opinion, the Court may not substitute its judgment for that of the Commissioner and finds that the ALJ's conclusions are within the bounds of the substantial evidence standard. See Hays, 907 F.2d at 1456 (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence).
It is well-established that an ALJ may give less weight to the opinion of a treating physician if the opinion is inconsistent with the physician's own treatment notes or other substantial evidence in the record. See, e.g., Peterson v. Astrue, No. 0:11-CV-1112-RBH-PJG, 2012 WL 3638698, at *5 (D.S.C. June 21, 2012), adopted, 2012 WL 3638695 (D.S.C. Aug. 23, 2012); Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *5 (D.S.C. Sept. 28, 2015). In the instant case, the ALJ identified several inconsistencies between the extreme level of debilitation expressed in Dr. Mitchell's 2016 Opinion and the often unremarkable observations documented in his treatment notes. (See R. at 28, referencing R. at 291-93, 341-44.)
The inconsistencies between Dr. Mitchell's treatment notes and the 2016 Opinion are all the more pronounced in light of the remainder of the record. See Tallmage v. Comm'r of Soc. Sec. Admin., No. 1:13-CV-02035-TLW, 2015 WL 1298673, at *12 (D.S.C. Mar. 23, 2015) (stating that the court should view the ALJ's decision as a whole in determining whether the ALJ properly weighed the treating physician's opinion). For example, the ALJ's discussion of Plaintiff's medical history elsewhere in the decision further highlights the generally mild symptoms reported by Plaintiff and the conservative nature of the treatment prescribed by Dr. Mitchell to manage such symptoms. (See, e.g., R. at 26, referencing R. at 332-34, which notes a pain level of only 5/10; full range of motion in hips, knees, and ankles; good gait; and a strength level of 5/5; id. at 27, referencing R. at 474-76, which instructs Plaintiff to return to Dr. Mitchell on an as needed basis.) Moreover, as the ALJ correctly notes, the record includes the opinions of two state agency physicians, neither of which support a finding of disabling physical limitations on the part of Plaintiff. (See id. at 29, referencing R. at 82-97, 101-18.)
Thus, viewing the ALJ's decision in its entirety, the undersigned finds that the ALJ provided specific reasons for the weight given to Dr. Mitchell's 2016 Opinion, and that those reasons are supported by substantial evidence in the case record. Accordingly, the ALJ did not commit reversible error in affording Dr. Mitchell's opinion partial weight. See, e.g., Craig, 76 F.3d at 590 (holding that ALJ properly rejected treating physician's assessment when it was not supported by his own treatment notes); Bryant, 2015 WL 5783813, at *5 (affirming the ALJ's decision to afford little weight to the treating physician's ultimate opinion on disability where the opinions of two state agency physicians and the treating physician's own treatment notes contradicted the opinion).
III. Appeals Council's Failure to Consider Plaintiff's Additional Evidence
Plaintiff contends that the Appeals Council erred in failing to consider additional evidence submitted in support of his appeal. Effective January 1, 2017, the regulation governing the Appeals Council's consideration of new evidence was amended as follows:
(a) The Appeals Council will review a case if—20 C.F.R. §§ 404.970, 416.1470 (2017). Thus, the new regulation added two requirements to a claimant's burden when presenting new evidence for the first time at the Appeals Council level: (1) the claimant must demonstrate good cause for the failure to submit the evidence in question at least five days prior to the ALJ's decision pursuant to 20 C.F.R. §§ 404.953 and 416.1453; and (2) the claimant must show a reasonable probability of a different outcome.
...
(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 § 404.935 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; or
(v) You received a hearing level decision on the record and the Appeals Council reviewed your decision.
Here, the Appeals Council denied Plaintiff's request for review on March 22, 2018, after the new regulation took effect. (R. at 1-4.) Thus, the new version of the regulation applies to Plaintiff's claims. See, e.g., Collins v. Berryhill, No. 3:17-CV-633 (MHL), 2018 WL 4232888, at *12 (E.D. Va. Aug. 20, 2018), adopted, 2018 WL 4224854 (E.D. Va. Sept. 5, 2018) (applying new regulation where Appeals Council denied claimant's request for review after the new regulation went into effect).
The Fourth Circuit has historically defined "material" as a reasonable possibility that the new evidence would have changed the outcome of the case. See Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); Wilkins v. Secretary, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Thus, the new versions of §§ 404.970 and 416.1470 heighten the claimant's burden from showing a "reasonable possibility" to a "reasonable probability." See Hawks v. Berryhill, No. 1:17-CV-1021, 2018 WL 6728037, at *4 (M.D.N.C. Dec. 21, 2018) (noting that showing a reasonable probability of a different outcome is now an additional requirement to showing materiality).
Plaintiff requested review with the Appeals Council on May 26, 2017. (R. at 196-98.) On May 31, 2017, the Appeals Council issued a letter granting Plaintiff's request for more time before the Appeals Council acted on his case. (Id. at 14-15.) Within that letter, the Appeals Council also notified Plaintiff of the new requirements under 20 C.F.R. §§ 404.970 and 416.1470, and provided the following instructions:
You may send us a statement about the facts and the law in this case or additional evidence. We consider additional evidence that you show that is new, material, and relates to the period on or before the date of the hearing decision. You must also show there is a reasonable probability that the additional evidence would change the outcome of the decision. You must show good cause for why you missed informing us about or submitting it earlier.(Id. at 14 (emphasis added).)
Plaintiff then provided the Appeals Council with records from Carolina Neuropathy Center, which document the results of an electrodiagnostic examination conducted on Plaintiff on June 2, 2017. (Id. at 8-13.) According to the examination results, "[e]valuation of the right foot sympathetic skin response nerve showed reduction amplitude," but all remaining nerves were within "normal limits." (Id. at 8.) "Needle evaluation of the right gastric muscle showed slightly increased spontaneous activity," but all remaining muscles showed "no evidence of electrical instability." (Id.) Plaintiff exhibited "electrophysiological findings" consistent with "+1 fibrillation potential noted in the right gastric muscle, which may be suggestive of a subacute right S1 radiculopathy," and the sympathetic skin response tests were "equivocal." (Id.) The examining doctor noted that while further imaging studies "may be necessary," Plaintiff's "[c]urrent treatment protocol is still warranted." (Id.)
Plaintiff also provided the Appeals Council with a one-page letter from his treating physician, Dr. Mitchell, dated January 9, 2018 ("2018 Letter"). (Id. at 7.) The letter stated as follows:
I first saw Brian Howell about 20 years ago for a fusion surgery involving L4-5, L5-S1 with Steffee plates. That was a successful fusion. I saw him back in 9/15. At that time, he had been out of work for a year. He complained of renewed pain in his back and into his legs. Imaging showed his previous fusion, but it appeared that of [sic] one of the screws had broken. We ordered a CT myelogram, but he never got it. He expressed that was due to financial limitations. Nerve conduction testing correlated with my exam findings, both of which indicated an S1 radiculopathy. He was having pain going down his right leg and weakness in the gastric soleus, which is innervated by the S1 nerve. He had paraspinal muscle spasm. X-rays indicate that he is developing arthritis in his lumbar spine with spondylosis. He has adjacent segment disease, and the sacroiliac joint is one of the adjacent segments, so it is consistent with his history that he would have pain at that level.
Mr. Howell suffers from continued pain in his back and leg. Despite a fairly successful spinal fusion, he is developing lumbar spondylosis. It is consistent with his back and leg pain that he would need to rest away from the work station for more time than the usual breaks allow. If he had to work 8 hours a day, 40 hours a week, that amount of activity in terms of either standing/walking or sitting would cause his muscles to spasm resulting in missed days of work. This amount activity [sic] would cause him pain from muscle spasms in his back sufficient to frequently interruptions [sic] tasks throughout the work day. I am basing my opinion regarding his limitations on his history of fusion surgery, imaging and nerve conduction testing. He has done fairly well until now for someone who had
a fusion so long ago. This type of disability would not be unexpected given how long he has lived with this fusion. He has had these limitations since at least 9/15.(Id.)
On March 22, 2018, the Appeals Council issued its denial of Plaintiff's appeal, stating:
You submitted a letter from David Mitchell, M.D., dated January 9, 2018 (1 page). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence.(Id. at 2.) Plaintiff argues that the Appeals Council erred in refusing to consider and exhibit Dr. Mitchell's 2018 Letter because "the new, more detailed opinion of [a] treating surgeon, specifically explaining limitations related to the relevant period would certainly matter to an impartial fact-finder." (Dkt. No. 9 at 23.) With respect to the electrodiagnostic examination, Plaintiff claims that the results provide "new, first-time, hard objective evidence of radiculopathy," and substantiate Plaintiff's complaints of pain. (Id. at 22-23.) Plaintiff claims that because the examination was scheduled for June 2, 2017, two (2) months after the ALJ issued his final decision, "the only possible place these diagnostic tests could have been submitted was to the Appeals Council." (Id. at 25.)
You submitted treatment records from Carolina Neuropathy Center dated June 2, 2017 (6 pages). The Administrative Law Judge decided your case through April 4, 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 April 4, 2017.
The Commissioner argues that the examination results from Carolina Neuropathy Center and Dr. Mitchell's 2018 Letter do not satisfy the new requirements under 20 C.F.R. §§ 404.970 and 416.1470 and, thus, the Appeals Council properly refused to consider them as part of Plaintiff's case. Specifically, the Commissioner claims that Dr. Mitchell's 2018 Letter is not "new" because "Plaintiff obviously had every opportunity to obtain an opinion from Dr. Mitchell before the administrative hearing and ALJ decision," and, instead, "waited to act until after he received an unfavorable decision." (Dkt. No. 11 at 23-24.) Likewise, the Commissioner argues that there is no evidence that Plaintiff was unable to obtain an electrodiagnostic examination prior to the ALJ's decision. (Id. at 24.) The Commissioner further argues that the 2018 Letter and examination results are not material because Plaintiff has failed to demonstrate a reasonable probability that the additional evidence would change the outcome of the ALJ's decision. (Id. at 25-26.) Most notably, the Commissioner claims that Plaintiff "cannot establish good cause for his failure to submit the June 2017 nerve study results or Dr. Mitchell's letter, dated nine months after the ALJ's decision," despite being informed by the Appeals Council that he must show good cause under the governing regulations. (Id. at 20.)
The undersigned is inclined to agree with the Commissioner that Dr. Mitchell's 2018 Letter and the electrodiagnostic examination results do not satisfy the requirements under 20 C.F.R. §§ 404.970 and 416.1470. At the outset, the additional evidence submitted by Plaintiff is not new or material because it is plainly duplicative of evidence already in the record. For example, Dr. Mitchell's 2018 Letter offers substantially the same conclusion regarding Plaintiff's limitations as that provided in his 2016 Opinion. (See R. at 441.) With respect to the electrodiagnostic examination results, the ALJ already considered evidence of radicular pain and right-sided weakness in examining Plaintiff's medical history and reaching his ultimate disability determination. (See id. at 26-27; see also id. at 343, noting that Plaintiff has "new onset right-sided lumbar radiculopathy and weakness in S1 nerve root distribution," and 431-33.) Thus, neither the 2018 Letter nor the electrodiagnostic examination results present any findings that would change the outcome of the ALJ's decision. See Glenn v. Berryhill, No. 1:17-CV-643-PMD-SVH, 2017 WL 5900969, at *13 (D.S.C. Nov. 15, 2017), adopted, 2017 WL 5889205 (D.S.C. Nov. 29, 2017) (finding no reasonable possibility that the new examination findings plaintiff submitted to the Appeals Council would have changed the ALJ's decision because they were essentially the same as the findings in the treatment notes reviewed by the ALJ).
Furthermore, as the Commissioner correctly notes, the ALJ's decision determined the limitations of Plaintiff's impairments from the alleged disability onset date, April 1, 2014, through the date of the decision, April 4, 2017. (R. at 30.) Accordingly, the electrodiagnostic examination, which occurred almost two (2) months after April 4, 2017, falls outside of the relevant time period and has little bearing on whether Plaintiff was disabled on or before the date of the hearing decision. See 20 C.F.R. §§ 404.970 and 416.1470 (noting that the Appeals Council will consider additional evidence if, among other requirements, it relates to the period on or before the date of the hearing decision).
However, the undersigned need not resolve whether Dr. Mitchell's 2018 Letter or the electrodiagnostic examination results satisfy the requirements under §§ 404.970(a)(5) and 416.1470(a)(5) because Plaintiff has failed to demonstrate good cause for his untimely submission of the additional evidence. As stated above, the new regulation imposes a threshold requirement that the claimant "show good cause for not informing [the Appeals Council] about or submitting the evidence as described in § 404.935. . . ." 20 C.F.R. §§ 404.970(b) and 416.1470(b). The regulation provides claimants with a list of acceptable causes, all of which seem to suggest a fairly high bar with respect to justifying late submissions (e.g., serious illness, physical or mental limitation, unexpected circumstances, etc.). Here, Plaintiff offered no such explanation to the Appeals Council upon submitting the 2018 Letter and examination results in support of his appeal. Further, despite having an opportunity to address this deficiency in his briefs, Plaintiff responded only that he had "difficulty in obtaining additional testing and treatment;" Plaintiff did not explain, however, how he was suddenly able to pay for and obtain the electrodiagnostic examination only two (2) months after the ALJ's unfavorable decision. (Dkt. No. 12 at 14.)
With respect to Dr. Mitchell's 2018 Letter, Plaintiff's total failure to explain his late submission is particularly perplexing, given that he admittedly saw Dr. Mitchell for well-over a decade and had ample opportunity to obtain an opinion, as evidenced by the 2016 Opinion included in the record before the ALJ. Thus, Plaintiff's failure to offer a reasonable explanation for his late submission of Dr. Mitchell's 2018 Letter and the electrodiagnostic examination results undermines any right he may have had to consideration of his additional evidence. See Scherer v. Berryhill, No. 2:17-CV-53, 2018 WL 1960531, at *3 (W.D.Va. Apr. 26, 2018) (finding that the Appeals Council had no duty to review plaintiff's additional evidence where plaintiff declined to say which of the good cause exceptions under § 404.970(b) justified her late submission). Without more, the undersigned simply cannot find that Plaintiff satisfied the burden set forth in §§ 404.970(b) and 416.1470(b), or that the Appeals Council erred in declining to consider and exhibit the additional evidence submitted by Plaintiff. The undersigned therefore recommends that the Court affirm the Commissioner's decision.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 10, 2019
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).