Opinion
C/A No. 2:18-cv-00839-BHH-MGB
04-23-2019
JENNIFER MARIE SANDERS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Jennifer Marie Sanders ("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 her 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 May 27, 1974, and was 40 years old on her amended alleged onset of disability date, August 1, 2014. (R. at 26, 38.) Plaintiff claims disability due to, inter alia, Vertigo/Meniere's Disease, headaches, hearing loss/tinnitus, cervical and lumbar degenerative disc disease, sleep apnea, obesity, depression, and anxiety. (R. at 28.) Plaintiff has past relevant work as a mail carrier, warehouse stock control clerk, mortgage clerk, sales associate/cashier, van driver, and accounting clerk. (R. at 38.)
Plaintiff filed for DIB on August 1, 2014 and for SSI on August 25, 2014. (R. at 26.) Her application was denied initially and on reconsideration. (R. at 26.) Following a hearing, Administrative Law Judge (ALJ) Colin Fritz denied Plaintiff's claim on February 22, 2017. (R. 26-40.) The Plaintiff filed an appeal to the Appeals Council and submitted additional evidence for its consideration. (R. at 2.) 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.
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, 2019.
(2) The claimant has not engaged in substantial gainful activity since August 1, 2014, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: Vertigo/Meniere's Disease, headaches, hearing loss/tinnitus, cervical and lumbar degenerative disc disease, sleep apnea, obesity, depression, and anxiety (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 over the course of an 8-hour workday, in 2-hour increments with normal and acceptable work breaks, that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can never climb ladders, ropes and scaffolds; can occasionally climb ramps and stairs, balance, kneel, crouch and crawl; can occasionally stoop to lift within the exertional level from waist height and above; can constantly be exposed to a very quiet to moderate noise environment; can occasionally be exposed to a loud and very loud noise environment; can perform jobs that require
frequent, but not constant, communication in an environment of face-to-face verbal exchanges within a 10-foot distance, can occasionally be exposed to bright sunlight, extreme heat, extreme cold, olfactory irritants such as persistent fumes and hazards associated with unprotected dangerous machinery or unprotected heights; and can never operate moving machinery. She has sufficient concentration, persistence, and pace to understand, remember and carry out simple, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional work place changes.(R. at 26-40.)
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on May 27, 2974 and was 40 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).
(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 August 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). "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 she 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 her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); She must make a prima facie showing of disability by showing that she is unable to return to her 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 her 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).
DISCUSSION
Plaintiff contends that the ALJ erred in finding that Plaintiff's vertigo and migraines do not render her disabled. More specifically, Plaintiff alleges that the ALJ failed to properly assess a treating physician opinion related to her vertigo and failed to properly explain how his RFC assessment accounted for Plaintiff's vertigo and migraines. (Dkt. No. 19 at 26-32.) Relatedly, Plaintiff asserts that the Appeals Council failed to properly evaluate new and material evidence related to Plaintiff's vertigo in declining to review the ALJ's decision. (Id. at 21-26.) Finally, Plaintiff asserts that the ALJ failed to properly explain how his RFC assessment accounted for Plaintiff's mental and physical limitations. (Id. at 32-36.)
The undersigned considers these arguments below.
A. RFC Assessment Related to Plaintiff's Vertigo
Plaintiff asserts that the ALJ failed to sufficiently explain how Plaintiff's RFC accounted for the limitations caused by, inter alia, her vertigo. (Dkt. No. 19 at 28-32.)
An individual's RFC is an assessment of her "ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis." S.S.R. 96-8p at *1. The claimant bears the burden of providing evidence establishing the degree to which her impairments limit her RFC. See, e.g., Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) ("The burden of persuasion to prove disability and to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five."); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1545(a)(3) ("In general, you are responsible for providing the evidence we will use to make a finding about your residual functional capacity"). However, the Commissioner alone is responsible for determining the claimant's RFC. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); 20 C.F.R. §§ 404.1545, 404.1546.
An ALJ assesses a claimant's RFC "based on all the relevant medical and other evidence." 20 C.F.R. § 404.1520(a)(4).
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.S.S.R. 96-8p. Thus, an ALJ can give weight to some medical evidence, while disregarding other medical evidence, when determining a claimant's RFC. See Bacnik v. Colvin, No. 1:12-cv-801, 2014 WL 3547387, at *4 n. 7 (M.D.N.C. July 17, 2014). However, "'a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including 'a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.'" Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). In other words, the ALJ must "'build an accurate and logical bridge from the evidence to his conclusion.'" Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
As stated above, the ALJ found that Plaintiff retained the RFC to perform light work, subject to certain limitations. (R. at 32.) In making this finding, the ALJ expressly considered, inter alia: Plaintiff's subjective testimony as to her limitations; the objective medical evidence in the record; and the medical opinion evidence. (R. at 32-38.) With respect to Plaintiff's "Vertigo/Meniere's Disease," he found that the objective medical evidence in the record did not support "claimant's extensive allegations." (R. at 33.) Specifically, the ALJ stated:
Meniere's Disease "is a disorder of the inner ear that can lead to dizzy spells (vertigo) and hearing loss." See https://www.mayoclinic.org/diseases-conditions/menieres-disease/symptoms-causes/syc-20374910.
In terms of the claimant's alleged Vertigo/Meniere's Disease associated hearing loss and tinnitus, I found it 'severe' and considered it accordingly in restricting claimant to a range of light work with never climbing ropes/ladders/scaffolds, only occasional exposure to hazards associated with unprotected dangerous machinery or unprotected heights, never operating moving machinery, constant exposure to a very quiet moderate noise environment and only occasional exposure to a loud and very loud noise environment, and jobs that require frequent, but not constant, communication in an environment of face-to-face verbal exchanges, within a 10-foot distance. However, the claimant's extensive allegations are unsupported by the record.
For example, claimant has described varying accounts of chronic near-syncopal/syncopal spells. In a neurological consult dated December 2014, she described her symptoms as a 'singular syncopal spell' two years ago, 'no reoccurrence' (Ex 18F/1), March 2015 in neurological follow-up at MUSC, she reported chronic near-syncopal/syncopal spells for 2-years, develops lightheadedness, has had complete loss of consciousness maybe 2 to 3 times (Ex 18F/13), and on January 29, 2016 she characterized symptoms as 'rare episodes of brief loss of consciousness, typically occurs when standing for long time, unconscious for 1-2 minutes and then comes to[."] (Ex 24F/4). Notably, while at her hearing, she described vertigo attacks occurring 2-3 times a month, lasting 2-3 hours and taking almost two weeks to recover from it, contrary to previous accounts of multiple episodes of 'losing consciousness,' she did acknowledge only losing consciousness on one occasion.
Although claimant has been assessed with Meneure's [sic] Disease, it appears that diagnosis has been a diagnosis of exclusion, but not supported by medical records from MUSC as consulting otolaryngologist, Dr. Ted Meyer, M.D., Ph.D., Professor of the Cochlear Implant Program at the Medical University of SC notes that although claimant exhibited an abnormal sensory organization test, she exhibited high anxiety and a Cevette calculation indicated likely aphysiologic basis for results (Ex 12F/4) and there was no electrophysiologic evidence of peripheral or central vestibular system dysfunction (Ex 12F/4). Additionally, he concluded that she unlikely had Meniere's given the long duration of symptoms (described as intermittently since childhood), normal vestibular testing, and he suspects she has vestibular migraine (Ex 12F/2). MRI of the brain dated February 27, 2014 is
normal and interpreted as no acute intracranial findings and 7th and 8th nerve complex are normal with no mass or evidence for vertigo (Ex 13F/10).(R. at 33-34.)
Moreover, neurological records from MUSC note that neurological exam [] consistently demonstrates normal gait and balance with the only abnormality notes is some mild unsteadiness on Romberg testing (Ex 18F/3). Contrary to claimant's testimony that vertigo attacks occur 2-3 times a month, in a March 23, 2015 exam she reported the last 'spell' occurring in January 2015. Additionally, although on exam, claimant did have bilateral hearing loss, she exhibited no elicitable vertigo or nystagmus and Dr. Woodward suspects a benign peripheral vestibular disturbance (Ex 18F/13). Moreover, following extensive neurological evaluations, it is noted that claimant's symptoms are vertigo/dizziness are unlikely migraine related as treatment trials with anti-migraine medications have not resulted in any benefit for her dizziness/vertigo (Exs 18F/20 and 24F/7).
"Fainting, or passing out, is referred to medically as a syncopal episode, or syncope. Syncopal episodes are typically triggered by a sudden, temporary drop in blood flow to the brain, which leads to loss of consciousness and muscle control." See https://www.healthline.com/health/syncopal-episode.
"A vestibular migraine is a nervous system problem that causes repeated dizziness (or vertigo) in people who have a history of migraine symptoms." See https://www.webmd.com/migraines-headaches/vestibular-migraines#1.
In recounting the frequency of Plaintiff's vertigo attacks, the ALJ appears to equate Plaintiff's vertigo attacks with her syncopal spells. In other words, the ALJ appears to find that Plaintiff's vertigo attacks occurred only when she passed out. However, there is no basis for this reasoning. During the ALJ hearing, Plaintiff testified that she has "vertigo attacks . . . two to three times a month" and described these vertigo attacks as follows:
A vertigo attack is when you're standing or you're sitting and your whole world completely turns in one direction almost going like 900 miles an hour, like a hurricane. It spins so fast. You lose your balance. You can't see where you're at. A lot of times I get sick right after that. I throw up. I have no vision of where I'm at, no sense of where I'm at. . . . The actual attack itself can last anywhere from an hour to two to three hours. Then it takes almost two weeks to recover.(R. at 55.)
Similarly, when describing her "vertigo spells" to her doctor on December 22, 2014, Plaintiff stated "the vertigo spells are occurring most days, however, can be a regular [sic] at times. She describes the sensation as both a spinning and woozy feeling with associated visual focusing difficulty and nausea. Spells can last seconds to all day. The spells can come on at any time of day . . . " (R. at 530.)
Based on the foregoing, Plaintiff does not claim that she passes out as a result of every vertigo attack. This distinction is important because it impacts the ALJ's understanding of the frequency of Plaintiff's vertigo attacks. Specifically, in the March 23, 2015 exam cited by the ALJ, Plaintiff "reports persistent dizziness and vertigo symptoms." (R. at 539.) She also "reports that she has experience[ed] presyncopal/syncopal spells for about 2 years. Her last episode was in January of 2015." (R. at 539.) Thus, this exam reported the frequency of Plaintiff's vertigo symptoms and her syncopal spells, a distinction the ALJ appeared to miss. With this background, it is unclear how the ALJ can reason this exam undermines Plaintiff's testimony that her vertigo attacks occur 2-3 times a month. Indeed, the medical record consistently notes the frequency of Plaintiff's vertigo symptoms. (R. at 445 (August 11, 2014: "The patient presents with complaints of sudden onset of intermittent episodes of severe dizziness, described as vertigo and spinning sensation."); R. at 530 (December 22, 2014: "She reports that the vertigo spells are occurring most days. . . ."); R. at 534 (January 30, 2015: "Persistent vertigo that waxes and wanes.").)
In addition to the above apparent misunderstanding by the ALJ, the undersigned cannot discern how some of the other evidence relied on by the ALJ undermines the alleged severity of Plaintiff's vertigo. For example, the ALJ noted that Dr. Meyer "suspects [Plaintiff] has a vestibular migraine." (R. at 33.) "A vestibular migraine is a nervous system problem that causes repeated dizziness (or vertigo) in people who have a history of migraine symptoms." See https://www.webmd.com/migraines-headaches/vestibular-migraines#1. Thus, the existence of a vestibular migraine would seem to support Plaintiff's claims of vertigo rather than undermine them. Likewise, the ALJ notes that Plaintiff's vertigo symptoms "are unlikely migraine related as treatment trials with anti-migraine medications have not resulted in any benefit for her dizziness/vertigo." (R. at 33-34.) It is not clear how this disconnect between Plaintiff's vertigo and her migraines discounts the alleged severity of her vertigo.
Given the above discrepancies between the record and the ALJ's conclusions, the undersigned cannot find that the ALJ has built "an accurate and logical bridge from the evidence to his conclusion" that Plaintiff's RFC sufficiently accounted for her vertigo. Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) ("But the ALJ never explained how he concluded—based on this evidence—that Woods could actually perform the tasks required by 'medium work,' . . . . The ALJ therefore failed to build an 'accurate and logical bridge' from the evidence he recounted to his conclusion about Woods's residual function capacity.") (emphasis in original); Hunter-Tedder v. Berryhill, No. 5:17-cv-53-MOC, 2017 WL 5759941, at *3 (W.D.N.C. Nov. 28, 2017) "[R]emand is required as there is no logical bridge between the evidence and this aspect of the RFC determination."); Reinhard v. Colvin, No. 5:12-cv-284-BO, 2013 WL 3990687 (E.D.N.C. Aug. 2, 2013) (holding the ALJ erred and remand was appropriate where the ALJ failed to build a logical bridge between the claimant's alleged symptoms and limitations and the ALJ's RFC determination). The Court is therefore precluded from conducting a meaningful substantial-evidence review of the ALJ's decision. See Mayberry v. Berryhill, No. 5:17-cv-175, 2018 WL 3543085, at *3 (W.D.N.C. July 23, 2018) ("A failure to provide an adequate explanation frustrates the ability of the Court to conduct meaningful review and determine whether the ALJ's decision is supported by substantial evidence."); Williams v. Berryhill, No. 5:17-cv-263-FL, 2018 WL 3596865, at *7 (E.D.N.C. June 26, 2018) ("By the ALJ failing to build 'an accurate and logical bridge from the evidence to [the] conclusion[s],' the court is precluded from conducting a meaningful substantial-evidence review of the ALJ's decision, a ground independently requiring remand."), adopted by, 2018 WL 3594983 (E.D.N.C. July 26, 2018). For these reasons, remand is appropriate.
B. Appeals Council Consideration of Additional Evidence
Relatedly, Plaintiff asserts that the Appeals Council failed to properly evaluate new and material evidence related to Plaintiff's vertigo in declining to review the ALJ's decision. (Id. at 21-26.) Specifically, Plaintiff submitted to the Appeals Council two physician questionnaires completed by one of Plaintiff's treating physicians, Dr. Craig Woodward, on March 15, 2017 and March 16, 2017. (R. at 17-22.) In these questionnaires, Dr. Woodward opines, inter alia, that Plaintiff is likely to be absent about three days per month due to her episodic vertigo and migraines. (R. at 17-22.) He states that Plaintiff's "symptoms and limitations reported herein have been present since childhood onset." (R. at 18, 22.)
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 February 12, 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 medical records from Craig Woodward, M.D. dated March 15, 2017 to March 16, 2017 (7 pages). The Administrative Law Judge decided your case through February 22, 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 February 22, 2017." (R. at 2.)
In a prior letter to Plaintiff, the Appeals Council noted that it was waiving the good cause requirement "for additional evidence that you have already submitted and for additional evidence that you submit before we issue our action in your case." (R. at 15.)
Here, Plaintiff argues that the Appeals Council should have considered Mr. Woodward's opinion evidence because it is new, material, and relates back to the time period at issue. (Dkt. No. 19 at 21-26.) The undersigned agrees. 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))). As an initial matter, the evidence is new and relates back to the time period at issue. The record demonstrates that Dr. Woodward examined Plaintiff numerous times during the relevant time period, and he completed these physician questionnaires less than one month after the ALJ issued his decision. In the questionnaires, Dr. Woodward states "symptoms and limitations reported herein have been present since childhood onset." (R. at 18, 22.) There is no reason to find that Dr. Woodward's opinions are based on symptoms that appeared only after the ALJ issued his decision. See Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 341 (4th Cir. 2012) ("[P]ost-[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.") (citation omitted). Further, the evidence is not duplicative or cumulative, as it is the first time Dr. Woodward opines on Plaintiff's likely number of absences from work due to her vertigo. In addition, the undersigned finds this evidence is material. During the ALJ hearing, the ALJ gave certain hypotheticals to the Vocational Expert ("VE") to determine whether there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. As part of one hypothetical, the ALJ asked whether there were jobs available to a person who, inter alia, "would be absent three or more times a month." (R. at 63.) The VE responded that "No full-time work would allow for that amount of time off task." (R. at 63.) Here, Dr. Woodward has opined that Plaintiff's vertigo would cause her to be absent from work about three days per month. Based on the VE's testimony, such a limitation would preclude the availability of work. Thus, when the ALJ considers the severity of Plaintiff's vertigo on remand, there is a reasonable probability that this opinion evidence could change the outcome of the ALJ's decision.
Based on the foregoing, the Appeals Council should have considered this new opinion evidence. Remand is therefore also appropriate on this ground so that this new opinion evidence can be considered, reviewed and weighed by the agency fact finder. See Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir. 2011) (where the "other record evidence credited by the ALJ conflicts with the new evidence," there is a need to remand the matter to the fact finder to "reconcile that [new] evidence with the conflicting and supporting evidence in the record."); Wise v. Colvin, No. 6:13-cv-2712-RMG, 2014 WL 7369514, at *6-*7 (D.S.C. Dec. 29, 2014) ("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.").
C. 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's analysis of Plaintiff's vertigo is at issue in Plaintiff's other allegations of error. 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 23, 2019 Charleston, South Carolina