Opinion
5:22-CV-482-FL
02-13-2024
BARBARA JANE PETTIT Plaintiff, v. MARTIN O'MALLEY Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
Plaintiff Barbara Jane Pettit (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and supplemental security income (“SSI”). This matter is before the court on Plaintiff's brief [DE-11] seeking judgment in her favor, Defendant's responsive brief [DE-13] in opposition, and Plaintiff's reply brief [DE-16]. The parties have fully briefed this matter pursuant to the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g), and this case is ripe for adjudication. The briefs were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the parties' filings, it is recommended that Plaintiff's request for relief [DE-11] be allowed, Defendant's request for relief [DE-13] be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and SSI on June 25, 2018, alleging disability beginning March 1, 2010. Transcript of Proceedings (“Tr.”) 186, 368-74. Her claim was denied initially. Tr. 166-86, 217-27. Plaintiff filed a request for reconsideration (Tr. 228-30), and was denied upon reconsideration on May 6, 2019 (Tr. 187-211, 231-40). On July 8, 2019, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 243-46. A hearing before the ALJ was held on February 9, 2022, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 40-69. On February 18, 2022, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 13-33.
On February 18, 2022, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 34-39. On October 6, 2022, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
Plaintiff previously applied for SSI and/or disability insurance benefits (“DIB”) on four separate occasions. Each of Plaintiff's prior applications was ultimately denied, and the instant Transcript of Proceedings does not indicate that any of the prior unfavorable decisions were appealed to a United States District Court. Plaintiff's first application for benefits (DIB) was denied in June 2009. Tr. 417. In September 2009, Plaintiff filed a second application for benefits (DIB and SSI). Tr. 118. This application was denied by an ALJ on September 9, 2011 (“2011 ALJ decision”) (Tr. 115-34; 416), and denied review by the Appeals Council on May 8, 2012 (TR. 10914; 415). In 2012, Plaintiff filed a third application for benefits (SSI). Tr. 89. This application was denied by an ALJ on June 7, 2013 (“2013 ALJ decision”) (Tr. 86-103), and denied review by the Appeals Council on July 29, 2014 (Tr. 79-85).
The instant Transcript of Proceedings does not appear to provide the date of Plaintiff's first application for benefits, only the date of denial. This is not of consequence, however, to the analysis herein.
In 2014, Plaintiff filed a fourth application for benefits (SSI). Tr. 138. This application was denied by an ALJ on May 23, 2017 (“2017 ALJ decision”). Tr. 135-59. Plaintiff subsequently requested a review of the ALJ's decision by the Appeals Council, and as part of her request, Plaintiff submitted additional medical evidence (Tr. 160-65) consisting of a report dated April 10, 2017, entitled “Psychological Evaluation” (“2017 psychological report”) from the North Carolina Department of Health and Human Services Division of Vocational Rehabilitation Services (Tr. 7078). The Appeals Council denied Plaintiff's request for review on June 5, 2018 (Tr. 160-65), and noted with regard to the additional evidence, “[w]e 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.” Tr. 161.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 3 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 416.920a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 26. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since June 15, 2018, the application date. Tr. 18.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: systemic lupus erythematosus (SLE); bipolar disorder; and anxiety disorder. Tr. 18. The ALJ also found Plaintiff had the following non-severe impairments: history of small pericardial effusion/congestive heart failure; cardiac murmur; hypertension; hyperlipidemia; and kidney disease mostly attributed to SLE. Tr. 18. However, at step three, the ALJ concluded these impairments both physical and mental, were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in no limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and no limitation in adapting or managing oneself. Tr. 19-20.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. § 416.967(b). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
she can frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently stoop, kneel, crouch, and crawl; frequently handle and finger, bilaterally; occasionally work in extremes of heat and cold and in humidity; occasionally work in and around dust, odors, fumes, and pulmonary irritants; and occasionally work at unprotected heights and around moving, mechanical parts. The claimant can maintain attention, concentration, and persistence to perform work tasks at a nonproduction rate pace, meaning no assembly line type or quota-based work. She can frequently interact with supervisors, coworkers and the public.Tr. 21.
In making this assessment, the ALJ found Plaintiff's statements about her limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 22.
At step four, the ALJ concluded Plaintiff did not have any past relevant work. Tr. 25. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 25.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to evaluate the two psychological reports; (2) failing to develop the record fully and fairly; and (3) violating Albright v. Commissioner of Social Security Administration, 174 F.3d 473 (4th Cir. 1999) and Acquiescence Ruling 00-1(4), 2000 WL 43774 (S.S.A. Jan. 12, 2000) (“AR 00-1(4)”). Pl.'s Brief [DE-11] at 5. Below, the undersigned will first discuss Plaintiff's contentions regarding Albright and AR 001(4), as the analysis will impact Plaintiff's remaining two contentions.
Except for citations to the Transcript of Proceedings (“Tr.”), all citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
VI. DISCUSSION
A. ALJ analysis under Albright and AR 00-1(4)
Plaintiff contends that the ALJ erred by violating Albright and AR 00-1(4). Pl.'s Brief [DE-11] at 5. Specifically, Plaintiff contends that the ALJ erred by not considering the severe impairments found in the 2011, 2013, and 2017 ALJ decisions. In response, Defendant maintains that the ALJ properly performed the Albright analysis in the instant case. See Def.'s Brief. [DE-13] at 9. The undersigned recommends remand on this issue, for the reasons discussed below.
The Fourth Circuit's decision in Albright v. Commissioner of Social Security Administration, 174 F.3d 473 (4th Cir. 1999), led the Social Security Administration (“SSA”) to issue AR 00-1(4), which interprets Albright to hold:
where a final decision of SSA after a hearing on a prior disability claim contains a finding required at a step in the sequential evaluation process for determining disability, SSA must consider such finding as evidence and give it appropriate weight in light of all relevant facts and circumstances when adjudicating a subsequent disability claim involving an unadjudicated period.AR 00-1(4), 2000 WL 43774, at *4.
The court in Albright explains that the previous ALJ decision can inform whether the new ALJ's determination is supported by substantial evidence. Albright 174 F.3d at 477-78 (“[T]he finding of a qualified and disinterested tribunal that [claimant] was capable of performing only [the relevant RFC] as of a certain date was such an important and probative fact as to render the subsequent finding to the contrary relating to a period [a short time later] unsupported by substantial evidence”). When determining the weight to be given to a prior ALJ decision, the current ALJ must consider:
(1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim....
An adjudicator should give greater weight to such a prior finding when the previously adjudicated period is close in time to the period being adjudicated in the subsequent claim, e.g., a few weeks as in Lively. An adjudicator generally should give less weight to such a prior finding as the proximity of the period previously adjudicated to the period being adjudicated in the subsequent claim becomes more remote, e.g., where the relevant time period exceeds three years as in Albright.AR 00-1(4), 2000 WL 43774, at *4.
The language of AR 00-1(4) quoted above is not entirely clear whether in cases where multiple final ALJ decisions precede the current ALJ decision, the ALJ is required to consider all of them or only the most recent. See AR 00-1(4) (specifically discussing treatment in “a subsequent disability claim” of findings required under the sequential evaluation process “in a final decision by an Administrative Law Judge (ALJ) or the Appeals Council on the prior disability claim”) (emphasis added). However, other courts in this circuit have required an ALJ to consider all previous ALJ decisions when there is more than one such decision. See Troy B. v. Comm'r, Soc. Sec. Admin., No. CV DLB-19-325, 2019 WL 6684498, at *4 (D. Md. Dec. 6, 2019) (“AR 00-1(4) requires an ALJ to consider and weigh any prior ALJ decisions.”) (emphasis added); see also Tucker v. Saul, No. 0:19-CV-1615-RBH, 2020 WL 3446187, at *7 (D.S.C. June 23, 2020) (evaluating two prior decisions under AR 00-1(4)). While there may be a requirement to consider all prior ALJ decisions, courts have also found a requirement to discuss such prior decisions only when the prior decision is more favorable than the current decision. See Hair v. Berryhill, No. 5:18-CV-00110-D, 2019 WL 1030553, at *9 (E.D. N.C. Feb. 13, 2019), report and recommendation adopted, No. 5:18-CV-110-D, 2019 WL 1028522 (E.D. N.C. Mar. 1, 2019) (“Courts within the Fourth Circuit have generally found remand appropriate under AR 00-1(4) where an ALJ neglects to discuss a prior decision at the administrative hearing level, and the prior decision contains findings more favorable to the claimant than the ALJ's subsequent decision.”); see also Smith v. Colvin, No. 1:14-CV-3387 DCN, 2015 WL 4885172, at *21 (D.S.C. Aug. 14, 2015) (“Courts that have addressed AR 00-1(4)'s requirements in the context of final decisions have generally found that ALJs were not required to explicitly discuss and weigh the decisions of prior ALJs.).
Here, when evaluating the 2017 ALJ decision, the current ALJ
The prior Administrative Law Judge (ALJ) decision issued in May 2017 is somewhat persuasive because it is consistent with the facts and findings during that period of adjudication . . . The current ALJ decision is based on the current evidence of record, which most significantly supports impairments that were previously severe but are now non-severe, such as congestive heart failure based on the present evidence of record. Thus, the claimant's residual functional capacity is based on the clinical findings and other evidence in the present record, as discussed throughout this decision, which supports a capacity for unskilled work at the light exertional level . . . (AR 00-1(4), Albright v. Commissioner of the Social Security Administration, 174 F.3d 473 (4th Circuit 1999)).Tr. 24.
The 2011, 2013, and 2017 ALJ decisions include severe impairments and RFC limitations not included in the current ALJ decision. See, e.g., Tr. 120, 124 (2011 ALJ decision including “dysthymia disorder,” and “personality disorder not otherwise specified (NOS) with borderline traits” as severe impairments and limiting Plaintiff, inter alia, to “simple, repetitive tasks, unskilled type work; no public contact” in the RFC); Tr. 91, 93 (2013 ALJ decision including “personality disorder” and “cognitive disorder (not otherwise specified)” as severe impairments and limiting Plaintiff to “simple, routine, repetitive tasks” at two hour intervals in a low stress setting with only casual or incidental contact with the public); Tr. 141, 145 (2017 ALJ decision with additional severe impairments and RFC limitations discussed in more detail below).
While the lengthy period by which the 2011 and 2013 ALJ decisions predate the instant 2022 ALJ decision may lessen their current persuasiveness, the 2017 ALJ decision was issued approximately one year before the date of application in the current case, suggesting that such a decision should carry at least moderate amount of weight based on its temporal proximity. See AR 00-1(4) (providing a spectrum from “greater weight” for decisions “a few weeks” after the previous decision to “less weight” for decisions “exceed[ing] three years” from the previous decision). The 2017 ALJ decision includes multiple severe impairments that are no longer included as severe impairments in the current ALJ decision, including congestive heart failure (CHF); organic brain syndrome; an affective disorder; and personality disorders. Tr. 141.
In the instant decision, while the ALJ briefly discusses why she considers “congestive heart failure” to no longer be a severe impairment, she is silent on why organic brain syndrome, an affective disorder, and personality disorders are no longer severe or even non-severe impairments. See Tr. 24 (providing only the general statement that “[t]he current ALJ decision is based on the current evidence of record, which most significantly supports impairments that were previously severe but are now non-severe.”). It may be that the ALJ believed that one or more of these impairments are now included in the severe impairment of “bipolar disorder.” Tr. 18. However, such a change in diagnosis is certainly not self-evident. For example, “organic brain syndrome” can encompass a wide range of conditions, see UCLA Health, Neurocognitive disorder more umbrella term than diagnosis, https://www.uclahealth.org/news/neurocognitive-disorder-more- umbrella-term-than-diagnosis (last visited February 12, 2024), and without further explanation, the undersigned is unable to determine whether the ALJ's decision is supported by substantial evidence. See Sutton v. Colvin, No. 4:14-CV-15-D, 2015 WL 736094, at *7 (E.D. N.C. Feb. 20, 2015) (“Paramount to the court's decisions in Albright and Lively was the basic tenet that substantial evidence must support the Commissioner's determination.) (citing Albright, 174 F.3d at 477).
The Commissioner contends that medical evidence indicating improvement in in Plaintiff's mental health conditions provides sufficient basis for the ALJ's decision to give the 2017 ALJ decision little weight. Def.'s Brief [DE-13] at 14. While improvement in Plaintiff's mental health condition could certainly account for changes in Plaintiff's severe impairments, the ALJ does not explain what evidence supports what changes in the severe mental impairments found in the 2017 ALJ decision. In sum, the ALJ here fails to “build an accurate and logical bridge from the evidence to [her apparent] conclusion” that Plaintiff no longer had multiple severe impairments that were found in the 2017 ALJ decision. Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). The lack of explanation and analysis frustrates meaningful review by the court. The court is left to guess at how the ALJ came to her conclusions.
The undersigned finds that this error was not harmless. The 2017 ALJ decision found that Plaintiff, based on her cognitive difficulties, could only perform “simple work-related decisions” and could “never respond appropriately to the public.” Tr. 145. The instant RFC does not limit Plaintiff to simple work-related decisions and allows Plaintiff to frequently interact with the public. Tr. 21. Accordingly, a change in severe mental impairments could lead to a different RFC than the one considered by the VE in this case. The court cannot determine whether substantial evidence supports the ALJ's conclusions without such apparent conflicts being resolved, and it is not the court's role to do so.
The undersigned RECOMMENDS that this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should consider the severe impairments and more restrictive RFC limitations in the previous ALJ decisions, with a particular focus on the severe impairments of organic brain syndrome, affective disorder, and personality disorders included in the 2017 ALJ decision, and provide sufficient explanation of her evaluation so that meaningful judicial review would be permitted, if necessary. See 20 C.F.R. § 404.1520. To be clear, the undersigned expresses no opinion as to what severe or non-severe impairments Plaintiff does or does not have or what limitations may or may not be appropriate. It will be incumbent on the ALJ to consider all of the evidence before her, to explain her findings accordingly, and to determine whether modifications to the RFC, if any, are necessary.
B. Evaluation of the two psychological reports
Plaintiff contends that the ALJ erred by failing to evaluate the 2012 and 2017 psychological reports. Pl.'s Brief [DE-11] at 5. The court agrees in part.
Plaintiff underwent a consultative psychological exam in 2012 as a part of a previous disability application (“2012 psychological report”). Tr. 105-08. She underwent another consultative psychological exam in April 2017 to help determine eligibility for vocational rehabilitation services. Tr. 70-78. At both of these exams Plaintiff participated in the administration of the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”). In her 2012 WAIS-IV exam, plaintiff's full scale IQ was 59, placing her in the 0.3 percentile. Tr. 107. Her component scores were in the first to second percentile depending on the category. See id. In her 2017 WAIS-IV exam, plaintiff's full scale IQ was 67, placing her in the first percentile and suggested that she was “functioning within the Mild Intellectual Developmental Disability range of Intelligence.” Tr. 74. Her component scores were each in the first to fifth percentile depending on the category. See id. The 2012 psychologist diagnosed Plaintiff with Dysthymic Disorder “bordering on a Major Depressive Disorder,” and possible (“rule out”) cognitive disorder. Tr. 108. The diagnosis page of the 2017 psychological report is missing ostensibly due to a fax error that superimposed page 8 over most of page 9. Tr 74, 78.
A previous ALJ considered the 2012 psychological report as a part of the 2017 ALJ decision. Tr. 143 (discussing Plaintiff's IQ and other results from his October 2012 exam). The 2017 psychological report was completed on April 10, 2017 (Tr. 71) before the 2017 ALJ decision was issued on May 23, 2017. However, the 2017 psychological report was not included in the medical record of the 2017 ALJ decision (see Tr. 153-59), but was submitted to the Appeals Council for that decision, which denied review finding that the report “does not show a reasonable probability that it would change the outcome of the decision.” Tr. 161.
1. 2012 Psychological Report
As discussed above, under Albright and AR 00-1(4), an ALJ “determining whether a claimant is disabled during a previously unadjudicated period must consider [a final decision by an Administrative Law Judge (ALJ) or the Appeals Council on the prior disability claim] as evidence and give it appropriate weight in light of all relevant facts and circumstances.” AR 001(4), 2000 WL 43774, at *4. Plaintiff cites to no authority that requires an ALJ to discuss individual medical records supporting such final decisions. Plaintiff nowhere requests to reopen any previous ALJ decision. Cf. Piatz v. Berryhill, No. 7:17-CV-227-D, 2019 WL 613554, at *2 (E.D. N.C. Jan. 22, 2019), report and recommendation adopted, No. 7:17-CV-227-D, 2019 WL 615365 (E.D. N.C. Feb. 13, 2019) (noting that “the ALJ found that the Commissioner's [prior] decision denying Plaintiff's prior applications was final and binding, no basis to reopen the prior determination having been shown.”). When the Appeals Council denied review of the 2017 ALJ decision, the 2017 ALJ decision became final. See Langevin v. Berryhill, No. 7:16-CV-00144-FL, 2018 WL 1535477, at *1 (E.D. N.C. Mar. 29, 2018) (“The Appeals Council denied plaintiff's request for review, leaving the ALJ's decision as defendant's final decision.”).
Accordingly, the undersigned finds that there was no requirement for the current ALJ to independently discuss the 2012 psychological report that had already been considered in a final decision by a previous ALJ.
2. 2017 Psychological Report
When Plaintiff requested review of the 2017 ALJ decision by the Appeals Council, she submitted the 2017 psychological report as a part of her request. See Tr. 160-65, 70-78. On June 5, 2018, the Appeals Council denied Plaintiff's request for review, and noted with regard to the 2017 psychological report, “[w]e 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.” Tr. 161. “[T]he ALJ's decision thus became the final decision of the Commissioner.” Felts, 2012 WL 1836280, at *1 (citing 20 C.F.R. § 404.981). See Walls v. Barnhart, 296 F.3d 287, 289 (4th Cir.2002) (noting the Appeals Council's denial of claimant's request for review makes the ALJ's determination the final decision of the Commissioner for appeal purposes); Cowell v. Berryhill, No. 2:17-CV-52-D, 2018 WL 7138018, at *1 (E.D. N.C. Dec. 13, 2018), report and recommendation adopted, No. 2:17-CV-52-D, 2019 WL 347245 (E.D. N.C. Jan. 28, 2019) (showing that an Appeals Council determination becomes a final decision when the Appeals Council makes a ruling in a decision). Accordingly, the Commissioner has not considered the 2017 psychological report in any final decision.
Although Plaintiff alleges that her disability began on March 1, 2010 (Tr. 368), a claimant cannot collect SSI until the month following the month in which the application was filed, irrespective of the claimant's alleged onset date. See 20 C.F.R. § 416.335. Accordingly, here, the ALJ only made findings regarding Plaintiff's disability status from the application date, June 15, 2018, through the date of her decision, February 18, 2022 (the “applicable period”). Tr. 26.
The 2017 psychological report predates the period from the application date, June 15, 2018 through the date of her decision (the “applicable period”) that was the subject of the ALJ's disability determination. Tr. 26; 20 C.F.R. § 416.335. The SSA specifically provides that “[b]efore [it] make[s] a determination that [a claimant is] not disabled, [it] will develop [the claimant's] complete medical history for at least the 12 months preceding the month in which [the claimant] file[s] [her] application unless there is a reason to believe that development of an earlier period is necessary or unless [the claimant] say[s] that [her] disability began less than 12 months before [she] filed [her] application.” 20 C.F.R. § 416.912. While the 2017 psychological report predates the month of Plaintiff's application date by 13 months rather than the 12 month baseline described in 20 C.F.R. § 416.912, the undersigned notes that “Social Security proceedings are inquisitorial rather than adversarial[, and i]t is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-11, 120 S.Ct. 2080, 2085, 147 L.Ed.2d 80 (2000). Moreover, the 12 month period is not absolute, and the Commissioner will consider longer periods when there is “a reason to believe that development of an earlier period is necessary.” 20 C.F.R. § 416.912. As Plaintiff alleges an onset of disability long before the applicable period, the 2017 psychological results, if nothing else, provide evidence on the history and severity of Plaintiff's conditions that have not been previously considered in a final decision by the Commissioner. See Jay S. v. Comm'r of Soc. Sec., No. C19-6116-BAT, 2020 WL 5231025, at *2 (W.D. Wash. Sept. 2, 2020). (“Although SSI payments may not be paid for periods earlier than the application date, this does not render the alleged onset date irrelevant when charting the history and severity of plaintiff's functional limitations.”)
Although plaintiff alleges that her disability began on March 1, 2010 (Tr. 368), a claimant cannot collect SSI prior to the month following the month in which the application was filed, irrespective of the claimant's alleged onset date. See 20 C.F.R. § 416.335. At the ALJ hearing, Plaintiff's counsel confirmed that he had explained this fact to Plaintiff. See Tr. 47 (The ALJ inquires, “So the protective filing date for this claim is June 15th, 2018, and that is going to control, because it's a Title XVI only case. Did you explain that to your Client?” And counsel for Plaintiff responds, “Yes, Your Honor, I have.”).
The 2017 psychological report appears to have been considered by consultative examiners in this case. Tr. 175, 199. However, the report was not included in the “List of Exhibits” attached to the instant ALJ written decision. See Tr. 27-33. As there is no indication that this medical record was considered by an ALJ, either in the current decision or in any previous final decision by the Commissioner, the undersigned is unable to determine whether the current ALJ's decision is supported by substantial evidence. The undersigned finds that this error is not harmless, as results from this report, including evidence suggesting that Plaintiff was “functioning within the Mild Intellectual Developmental Disability range of Intelligence” (Tr. 74) could impact the ALJ's assessment of Plaintiff's mental impairments and RFC.
Accordingly, the undersigned RECOMMENDS remand on this issue. On remand, the ALJ should consider the 2017 psychological report as well as all other relevant evidence in accordance with the applicable law and regulations. The ALJ should also include a narrative discussion of how the evidence supports the conclusions reached, in order to facilitate meaningful review if the case is again before the court. See Monroe v. Colvin, 826 F.3d 176, 189. The court does note that an ALJ is not required to discuss every piece of evidence in the record. See Reid, 769 F.3d at 865 (citations omitted). However, before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless, 131 F.3d at 439-40.
C. Development of the record
Plaintiff contends that the ALJ failed to develop the record fully and fairly. Pl.'s Brief [DE-11] at 5. Plaintiff alleges that the medical record in this case is missing a 2010 psychological report (“2010 psychological report”) and most of page 9 from the 2017 psychological report, which was ostensibly obscured due to problems with the transmission of the relevant fax. Pl.'s Brief [D.E. 11] at 22-24. Plaintiff alleges that the ALJ deleted the 2010 “from the file.” Id.; see also (Tr. 133) (including a “Psychological Evaluation” from “Voc Rehab” covering a period from December 22, 2009 to January 4, 2010 in the medical record reviewed in the 2011 ALJ decision).
Defendant responds that it was Plaintiff's burden to produce evidence in support of her claim and that an ALJ's duty to develop the record does not require the ALJ to act as Plaintiff's counsel. Def.'s Brief [DE-13] at 14 (citing Rice v. Chater, 53 F.3d 329 (4th Cir. 1995)).
In evaluating a claim for disability, an “ALJ has a duty to explore all relevant facts and inquire into the issues necessary for adequate development of the record, and cannot rely only on the evidence submitted by the claimant when that evidence is inadequate.” Richardson v. Kijakazi, No. 4:20-CV-71-M, 2021 WL 3478211, at *7 (E.D. N.C. July 20, 2021) (quoting Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)), adopted by 2021 WL 3476095 (E.D. N.C. Aug. 6, 2021). “However, this ‘duty to develop the record is further triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.'” Honeycutt v. Kijakazi, No. 5:20-CV-438-RJ, 2022 WL 708523, at *9 (E.D. N.C. Mar. 9, 2022) (quoting Baysden v. Colvin, No. 4:12-CV-303-FL, 2014 WL 1056996, at *9 (E.D. N.C. Mar. 18, 2014)). Additionally, “[w]hile [the] ALJ must fully and fairly develop the record so that a just determination of disability may be made, . . . the ALJ is not required to function as the claimant's substitute counsel.” Honeycutt, 2022 WL 708523, at *9 (second alteration in original) (quoting Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994)).
The consultative examiners in this case considered both the 2010 psychological report and the 2017 psychological report. Tr. 175, 199. The ALJ found the opinions of the consultative examiners somewhat persuasive. As discussed above, the 2017 psychological report is necessary for the undersigned to evaluate whether substantial evidence supports the ALJ's decision and should have been included in its entirety. The 2010 psychological report was included in the medical record and discussion of the 2011 ALJ decision (see Tr. 133 (listing psychological evaluation as exhibit 13F); 121-22 (discussing psychological evaluation 13F)), which became a final decision when the Appeals Council denied review. Tr. 118, 115, 109, 415-16. While there may not be a requirement for the ALJ to discuss the 2010 psychological report for the reasons discussed above, in order to fully evaluate the ALJ's assessment of the consultative examiners' opinions, the 2010 psychological report and all pages of the 2017 psychological reports should have been included in the medical record for this case. See Godfrey v. Astrue, 861 F.Supp.2d 683, 686 (E.D. N.C. 2012) (noting that “a State agency medical consultant's opinion may only be given weight insofar as [it] is supported by evidence in the case record.'”) (alteration in original).
In a recent case in this district, “[e]xamination of the record from the prior case and the instant case reveal[ed] that both Plaintiff and the Commissioner possessed [reports that were not made a part of the record].” Graham v. Kijakazi, No. 7:21-CV-5-KS, 2022 WL 3585720, at *4 (E.D. N.C. Aug. 22, 2022). Under these circumstances, this court ordered remand noting that:
“Plaintiff should have re-submitted these reports via the normal mechanism for submission of evidence in support of a DIB claim[. . ., but] the ALJ was aware of the reports and should have incorporated these reports into the record for the instant case, together with
the documents incorporated from the administrative record of the prior case ....”Id. (citations omitted); see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop argument both for and against granting benefits.”); Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)).
In light of the above recommendation to remand this matter, the undersigned does not address whether the failure to include the 2010 psychological report and all pages of the 2017 psychological report provides an independent basis for remand. On remand the ALJ should ensure that 2010 psychological report and all pages of the 2017 psychological report are included in the medical record of this case. It will be incumbent on the ALJ to properly consider all of the relevant evidence and to explain the findings as to the weight afforded the evidence in accordance with the applicable law and regulations.
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Plaintiff's brief [DE-11] be ALLOWED, Defendant's brief [DE-13] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 26, 2024 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by the earlier of 14 days from the filing of the objections or March 5, 2024.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).