Opinion
C/A No. 2:18-cv-00792-JMC-MGB
04-16-2019
THOMAS EUGENE LIGHTFOOT, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Thomas Eugene Lightfoot ("Plaintiff'), through counsel, brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was born September 12, 1952, and was 60 years old on his amended alleged onset of disability date, July 1, 2013. (R. at 17, 95.) Plaintiff claims disability due to, inter alia, lumbosacral spondylosis, Hepatitis C, cirrhosis, hypertension, diabetes mellitus, obesity, osteoarthritis, and plantar fasciitis of the left foot. (R. at 20.) Plaintiff has past relevant work as a facilities supervisor and service manager. (R. at 266.)
Plaintiff's applications for DIB and SSI alleged disability beginning May 21, 2014. (R. at 17.) In a pre-hearing brief to the ALJ, Plaintiff, through his attorney, amended the alleged onset of disability date to July 1, 2013. (R. at 17.) At the ALJ hearing, Plaintiff amended the alleged onset date to July 1, 2013. (R. at 17.)
Plaintiff filed for DIB and SSI on June 9, 2014. (R. at 17.) His application was denied initially and on reconsideration. (R. at 17.) Following a hearing, Administrative Law Judge (ALJ) William F. Taylor denied Plaintiff's claim on March 10, 2017. (R. 17-33.) On May 9, 2017, Plaintiff requested the Appeals Council review of the ALJ's decision. (R. at 225.) Subsequently, Plaintiff submitted additional evidence for their consideration. On January 19, 2018, the Appeals Council denied Plaintiff's request for review, (R. at 1-4), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
Plaintiff previously filed for DIB on September 29, 2010, alleging disability beginning July 25, 2010. His application was denied initially and on reconsideration. Following a hearing, the ALJ denied Plaintiff's claim on February 13, 2013. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (R. at 17.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2015, but not thereafter.
(2) The claimant has not engaged in substantial gainful activity since July 1, 2013, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: lumbosacral spondylosis, Hepatitis C, cirrhosis, hypertension, diabetes mellitus, obesity, osteoarthritis, and plantar fasciitis of the left foot (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 less than the full range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the
claimant could lift, carry, push, pull 50 pounds occasionally and 25 pounds frequently. The claimant could sit 6 hours in an 8-hour workday, and stand and/or walk 6 hours in an 8-hour workday. The claimant could frequently balance, stoop, crouch, kneel, crawl and climb stairs/ramps, ladders, ropes or scaffolds. He had no limitations in hearing, seeing or speaking. The claimant could frequently reach bilaterally in all directions including overhead, and perform fingering, feeling, handling and use hand or feet for operation of controls. The claimant should avoid concentrated exposure to vibration, extremes of heat and cold, exposure to chemicals and chemical products. He must be allowed a change of position from standing one time every hour for a period of 5 minutes or less and should be allowed a 15-minute break in the first half of the workday, a 15 minute break in the second half of the workday and a 30-minute break at midday due to plantar fasciitis. He should not work at heights or near bodies of water unless protected from falls; and should not work with or near dangerous and moving types of equipment.(R. at 17-32.)
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on September 12, 1952 and was 60 years old, which is defined as an individual closely approaching retirement age, on the alleged disability onset date. (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school 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 the Medical-Vocational Rules support 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 July 1, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
APPLICABLE LAW
A. The Social Security Act
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). "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) (definition used in the DIB context); 42 U.S.C. § 1382c(a)(3)(A) (definition used in the SSI context).
"[T]he definition of disability is the same under both DIB and SSI . . . ." Mason 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.D. 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); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); He must make a prima facie showing of disability by showing that he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Monroe, 826 F.3d at 180. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
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 the court to 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); 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).
B. Relevant Time Periods
The DIB program provides for payment of disability benefits to individuals who are "insured" by virtue of their contributions to the Social Security trust fund through Social Security tax on their earnings. 20 C.F.R. §§ 404.110, 404.315. To be entitled to DIB in this case, Plaintiff bears the burden of showing that he became disabled prior to December 31, 2015, the date when his insured status expired for the purposes of DIB. (R. at 261); 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a). A claimant who first satisfies the medical requirements for disability only after his date last insured will not be entitled to DIB benefits. 20 C.F.R. § 404.131(a); see also Jenkins v. Astrue, No. 3:10-cv-705, 2012 WL 3776370, at *3 n.6 (E.D. Va. April 25, 2012) (explaining that a worsened condition or a new impairment arising after the date last insured cannot be a basis for remand or an award of disability benefits) (citing Matullo v. Bowen, 926 F.2d 240, 246 (3d Cir. 1990)). Therefore, the relevant time period for purposes of DIB is from July 1, 2013, the date of Plaintiff's amended alleged disability onset date (R. at 50), to December 31, 2015, when his insured status expired (R. at 261).
With respect to SSI, a claimant is not eligible for SSI until the date on which he files an application for benefits. 20 C.F.R. § 416.202; see also 20 C.F.R. § 416.501 (stating that a claimant may not be paid SSI for any time period that precedes the first month following the date on which an application was filed); see also Torres v. Chater, 125 F.3d 166, 171 n.1 (3d Cir. 1997) (noting that SSI benefits are not payable for any period prior to the filing of an application). Further, an application for benefits remains in effect until the date of the ALJ's decision. 20 C.F.R. § 416.330; see also Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (holding that a reviewing court is limited to determining "whether the claimant was entitled to benefits during a specific period of time, which period was necessarily prior to the date of the ALJ's decision"). Therefore, the relevant time period for purposes of SSI is from July 1, 2014, the first date of the month following the date on which he filed his SSI application, through March 10, 2017, the date of the ALJ's decision (R. at 14, 109).
DISCUSSION
Plaintiff contends that the ALJ erred in finding that Plaintiff's limitations do not render him disabled. More specifically, Plaintiff alleges that the ALJ failed to properly assess medical source opinion evidence. (Dkt. No. 20 at 23.) Relatedly, Plaintiff asserts that that Appeals Council failed to properly evaluate new and material evidence from a treating source psychologist in declining to review the ALJ's decision. (Id. at 26.) Plaintiff further alleges that: (1) the ALJ erred at step five by failing to comply with SSR 00-4p and failing to properly apply the Medical-Vocational Guidelines as a framework for decision-making; and (2) the ALJ did not sufficiently explain how the RFC assessment accounted for Plaintiff's obesity. (Id. at 14, 30.) The undersigned considers these arguments below.
A. Consideration of Medical Source Opinion Evidence
Plaintiff asserts that the ALJ failed to properly evaluate certain opinion evidence in assessing Plaintiff's RFC. Relatedly, he argues that the opinion evidence he submitted to the Appeals Council undermines the ALJ's analysis of opinion evidence related to Plaintiff's mental RFC. Plaintiff asserts that the Court should remand the ALJ's decision for consideration of the new and material opinion evidence he submitted to the Appeals Council. (Dkt. No. 20 at 26-28.)
Relevant here, the ALJ analyzed the opinion evidence in the record as follows:
Consideration has been given [to] the opinions of treating and examining physicians included in the medical evidence of record. No weight is given [to] the restrictions and limitations assessed in the medical statement/questionnaire from treating physician Stewart wherein she opined the claimant could not do light work (Exhibit B17F). Great weight is given [to] the statement of treating physician Dr. Stewart wherein she indicated the claimant's mental state was normal and without limits (Exhibit B4F). Although this statement dated August 2014, along with the subsequent mental status evaluation, were within normal limits (Exhibit B6F) and seemed to be based on statements made by the claimant, rather than by diagnosis and treatment for any mental impairment. Little weight is given the assessments of Dr. Stewart wherein she assessed restrictions and limitations (Exhibits B4F, B10F and B17). I have considered the opinions of Dr. Stewart, in the three questionnaires wherein she assessed limitations. I find that those opinions were not consistent with the overall findings of other health professions included in the record. Therefore, those opinions are not given great weight. While those opinions are considered at the hearing level, the issue of whether the claimant is disabled is an issue that is reserved to the Commissioner (Social Security Ruling 96-5p). Opinions on issues reserved to the Commissioner, can never ben entitled to controlling weight, but must be carefully considered to determine the extent to which they are supported by the record in its entirety (20 CFR 404.1527(d)(2), 416.927(d)(2) and Social Security Ruling 85-5p).(R. at 29 (emphasis added).)
None of the claimant's other treating or examining physicians have offered any opinion regarding disability. No other physician assessed any restrictions or limitations. No physician has limited the claimant's physical activities and he has no limitations on his ability to perform activities of daily living. No physician limited the claimant to greater restrictions than the ones adopted herein.
Plaintiff asserts that the opinion evidence he submitted to the Appeals Council provides the "diagnosis and treatment for [a] mental impairment" that the ALJ found missing in his decision. (Dkt. No. 20 at 26.) Specifically, Plaintiff submitted to the Appeals Council the "Diagnosis and Management" opinion completed by Psychologist Russell A. Haber, PhD, with Spectrum Family Solutions. (Dkt. No. 20-2.) Dr. Haber's opinion, dated April 6, 2017, states that Plaintiff's initial visit with Dr. Haber occurred on January 16, 2017 and his most recent visit occurred on March 30, 2017. (Id. at 1.) In this opinion, Dr. Haber states that Plaintiff "was diagnosed with Major Depressive Disorder, subsequent to Diagnostic Interview, Mental Status Exam, and Patient Health Questionnaire 9 (PHQ-9), as experiencing [certain] symptoms, almost daily or every day, all day, for more than two years." (Id.) Plaintiff's symptoms included "difficulty concentrating or maintaining focus, sometimes on important tasks." (Id.) Dr. Haber notes that "Mr. Lightfoot expressed that, his son's (Dylan) sudden, unexpected death, two days before Christmas, December 23, 2016, exacerbated his physical pain (back and joints) and further eroded his existing state of disrepair." (Id.) Dr. Haber states that "Mr. Lightfoot has voiced perpetual exhaustion, that is not relieved by sleep, and thusly, prohibiting his reintegration with the world and leaving him in a state of aloneness." (Id. at 2.) Under "Diagnostic Determination," Dr. Haber states, inter alia, that Plaintiff "has diminished functional capacity, depressed mood, the majority of the day, almost every day. . . Client's mood changes are noticeable, as he appears to quickly elevate to a visible level of irritability and anger. . . . Functionality is further eroded, by sleep deprivation, even after sleeping through the night." (Id.)
The Social Security regulations provide, inter alia, that the Appeals Council will review a case if, "[s]ubject 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." 20 C.F.R. § 404.970(a)(5). "Evidence is new . . . if it is not duplicative or cumulative," and "[e]vidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Wilkins v. Sec'y, 953 F.2d 93, 96 (4th Cir. 1991) (citations omitted).
Because the Appeals Council issued its decision denying review on January 19, 2018, the most recent version of 20 C.F.R. § 404.970 is applicable. (R. at 1-4.)
In denying Plaintiff's request for review, the Appeals Council noted: "You submitted reasons that you disagree with the decision. We considered the reasons and exhibited them on the enclosed Order of the Appeals Council. We found that the reasons do not provide a basis for changing the Administrative Law Judge's decision." (R. at 1.) It does not appear that the Appeals Council considered the additional evidence submitted by Plaintiff. The only exhibit listed in their decision is the "Exhibit B15B: Request for Review from W. Daniel Mayes, received May 9, 2017 (3 Pages)"—this does not reference Dr. Haber's opinion evidence. (R. at 4, 224-26.) Dr. Haber's notes are not part of the administrative record before this Court.
Here, Plaintiff argues that Dr. Harbor's opinion evidence provides "treatment evidence that documents a diagnosis of a major depressive disorder." (Dkt. No. 20 at 27.) According to Plaintiff, this "new evidence relates to the relevant time period" that under Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011), should have been considered prior to a final decision by the Commissioner. (Id. at 28.) In response, the Commissioner argues that Meyer is inapposite to the instant facts and "does not stand for the sweeping proposition that in every case where treating source statements are supplied belatedly, a remand must inexorably follow." (Dkt. No. 23 at 14-15.) The Commissioner also asserts that this evidence is irrelevant because it was rendered after the relevant time periods for purposes of SSI and DIB and it does not explain "how Plaintiff's condition worsened after the ALJ's decision." (Id. at 14.)
In Meyer v. Astrue, the Fourth Circuit held that where the treating physician in that case submitted a letter to the Appeals Council detailing the claimant's injuries and recommending significant restrictions on the claimant's activity, it "simply [could not] determine whether substantial evidence support[ed] the ALJ's denial of benefits" because the ALJ, in rendering his decision, had specifically emphasized that the record before him did not include any restrictions from the treating physician. 662 F.3d at 707.
The Meyer court stated, inter alia,
[N]o 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. Therefore, we must remand the case for further fact finding.Id.
The Commissioner argues here that this is not a case where the ALJ has placed reliance on the absence of treating source evidence, and thus, Meyer is inapplicable. (Dkt. No. 23 at 15.) However, in so arguing, the Commissioner appears to overlook the emphasis the ALJ placed on the lack of diagnostic and treatment evidence related to Plaintiff's alleged mental impairments. Along with the ALJ's above-quoted analysis of the opinion evidence (R. at 29), the ALJ discussed Plaintiff's allegations of "tiredness and fatigue" as follows:
The claimant alleges problems with tiredness and fatigue and the need for daily naps. He testified he must take midday naps. There is nothing in the treatment records showing the necessity of taking daily mid-day naps. The claimant indicated from July 2013, he did very little during the day, but did take naps during the day. The medical evidence does not indicate he advised his physicians of his need to take midday naps or received any diagnosis of any impairment that required him to take naps. The claimant testified he does not sleep well at night due to the necessity of using the restroom. The treatment records do not indicate he sought treatment for sleep problems. Additionally, the medical evidence does not show diagnosis of or treatment for sleep problems or any impairment that would require daily midday naps. The undersigned notes the claimant has been enrolled in college classes from at least July 2013 with records dated even as late as February 2016. (Exhibit B6F and B16F). He testified he does very little, but takes naps daily and did not mention that he was attending college classes.(R. at 27 (emphasis added).)
The undersigned finds Meyer applicable here, where Plaintiff has offered a treating physician opinion that fills an evidentiary gap expressly noted by the ALJ. Further, given the ALJ's reliance on the lack of diagnostic and treatment evidence in assessing Plaintiff's mental RFC, the undersigned finds there is a reasonable probability this evidence would change the outcome of the ALJ's decision. 20 C.F.R. § 404.970(a)(5).
In addition, the undersigned finds that this opinion evidence is new, material, and relates to the period on or before the date of the hearing decision. 20 C.F.R. § 404.970(a)(5). The Commissioner's assertion that this evidence is irrelevant is without merit. As quoted above, Dr. Haber states that Plaintiff "was diagnosed with Major Depressive Disorder, subsequent to Diagnostic Interview, Mental Status Exam, and Patient Health Questionnaire 9 (PHQ-9), as experiencing [certain] symptoms, almost daily or every day, all day, for more than two years." (Id. (emphasis added).) His opinion is dated April 6, 2017, and Plaintiff began visiting Dr. Haber on January 16, 2017. Thus, Dr. Haber's opinion appears to be based on Plaintiff's symptoms that he exhibited beginning, at the latest, on April 6, 2015. Thus, this evidence relates to the relevant time periods for both DIB and SSI. While Dr. Haber's opinion emphasizes Plaintiff's suffering from his son's death, which occurred after Plaintiff was last insured, the undersigned cannot find that his opinion is based solely on a worsening of Plaintiff's condition, for the above reasons. See Jenkins, 2012 WL 3776370, at *3 n.6 (explaining that a worsened condition or a new impairment arising after the date last insured cannot be a basis for remand or an award of disability benefits).
As explained above, the relevant time period for purposes of DIB is from July 1, 2013, the date of Plaintiff's amended alleged disability onset date, to December 31, 2015, when his insured status expired. The relevant time period for purposes of SSI is from July 1, 2014, the first date of the month following the date on which he filed his SSI application, through March 10, 2017, the date of the ALJ's decision.
As the Fourth Circuit stated in Bird v. Comm'r of Soc. Sec. Admin., "post-[ALJ decision] medical evidence generally is admissible in an SSA disability determination in such instances in which that evidence permits an inference of linkage with the claimant's pre-[ALJ decision] condition." 699 F.3d 337, 341 (4th Cir. 2012) (citation omitted) (finding the ALJ erred by not giving retrospective consideration to the medical evidence compiled after the claimant's date last insured). Here, this opinion evidence provides a diagnosis based in part on symptoms Plaintiff complained of during the relevant time period. See Coleman v. Berryhill, No. 6:17-cv-02613- TMC, 2019 WL 850902, at *4 (D.S.C. Feb. 22, 2019) (finding new opinion evidence "relates to the period prior to the ALJ decision" where the opinion reports on "symptoms and limitations that have been present" since shortly after Plaintiff applied for disability benefits).
Based on the foregoing, the Appeals Council should have considered this additional opinion evidence. See Ledbetter v. Astrue, 8:10-cv-00195-JDA, 2011 WL 1335840, at *13, n.7 (D.S.C. Apr. 7, 2011) ("'Whether the evidence is new, material and related to the relevant period is a question of law reviewed de novo.'" (quoting Box v. Shalala, 52 F.3d 168, 171-72 (8th Cir. 1995))). Because it was an error of law to not consider and exhibit such evidence, the undersigned finds it proper to treat the opinion as if it had been made a part of the record and consider it on review. See Coleman, 2019 WL 850902, at *5 (noting that the Appeals Council did not make the additional evidence part of the record, but finding sentence four remand appropriate regardless "because it was an error of law to not consider and exhibit such evidence"); Wise v. Colvin, No. 6:13-cv-2712-RMG, 2014 WL 7369514, at *7 (D.S.C. Dec. 29, 2014) (finding it "completely proper" to consider the additional evidence on remand under sentence four when the Appeals Council erred in not making it part of the record).
Because no factfinder has considered or weighed Dr. Haber's opinion in light of the other evidence in the record, the undersigned cannot determine if substantial evidence supports the decision of the Commissioner. Therefore, the undersigned recommends that reversal of the Commissioner's decision and remand under sentence four is appropriate. See, e.g., Rouse v. Berryhill, No. 6:17-cv-1496-AMQ-KFM, 2018 WL 3118356, at *11 (D.S.C. June 4, 2018), adopted by, 2018 WL 3109861 (D.S.C. June 22, 2018) (finding remand appropriate under sentence four where "it was error by the Appeals Council not to consider, weigh, and reconcile" new opinion evidence from the claimant's treating physician); Pennock v. Colvin, Civ. A. No. 6:15-cv-1490- RMG, 2016 WL 3457163, at *1 (D.S.C. June 23, 2016) (finding that "the failure of the Appeals Council or any other fact finder to weigh the new and material evidence from Plaintiff's treating and examining physicians and 'to reconcile that new and material evidence with conflicting and supporting evidence in the record' requires 'remand . . . for further fact finding'" pursuant to Meyer); Arakas v. Colvin, No. 4:14-cv-457-TER, 2015 WL 5602577, at *6-7 (D.S.C. Sept. 23, 2015) (reversing and remanding, stating, "Since the evidence in this case is not 'one-sided' and the newly offered opinion, presented for the first time to the Appeals Council, is in conflict with other evidence relied upon by the ALJ, '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.'" (quoting Meyer, 662 F.3d at 707)); Wise, 2014 WL 7369514, at *6 ("This greater evidentiary support contained in the June 2013 opinion report clearly constitutes 'new and material' evidence that under Meyer should have been considered prior to a final decision by the Commissioner.").
B. Remaining Allegations of Error
The undersigned does not address Plaintiff's remaining allegations, as they may be rendered moot on remand. As discussed above, the ALJ analyzed the opinion evidence in part based on the lack of diagnostic and treatment evidence related to Plaintiff's mental limitations—the ALJ's consideration of Dr. Haber's opinion evidence on remand could therefore affect his analysis of other opinion evidence. Thus, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegations of error raised by Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE April 16, 2019 Charleston, South Carolina