Opinion
Civil Action 8:20-cv-02631-DCC-JDA
09-30-2021
Lakeisha S. Tribble, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court for a final Order pursuant to Local Civil Rules 73.02(B)(1) and 83.VII.02, D.S.C., and 28 U.S.C. § 636(c). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying Plaintiff's claim for supplemental security income (“SSI”). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
Section 1383(c)(3) provides, “The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In October 2016, Plaintiff filed an application for SSI, alleging an onset of disability beginning September 17, 2016. [R. 363-372.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 263-73; 276-90.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and, on March 20, 2019, ALJ Alice Jordan conducted a de novo hearing on Plaintiff's claims. [R. 139-82.]
The ALJ issued a decision on July 1, 2019, finding Plaintiff had not been under a disability within the meaning of the Social Security Act (the “Act”) since October 25, 2016, the date the application was filed. [R. 96-105.] At Step 1, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 25, 2016, the application date. [R. 98, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: dysfunction of major joints; spinal degenerative disc disease; asthma; and arthralgias. [R. 98, Finding 2.] The ALJ also found that Plaintiff had non-severe impairments of ovarian cysts, reflux, visual problems and affective disorder. [R. 98-99.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [R. 100, Finding 3.] Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ determined Plaintiff had the following residual functional capacity (“RFC”):
[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). The claimant is able to sit six hours, stand six hours, and walk six hours each for a total of an eight-hour workday with usual breaks. The claimant can frequently crawl, kneel, crouch, stoop, balance, and climb ramps and steps. She can occasionally climb ladders, ropes, or scaffolds. The claimant can occasionally overhead reach with the right upper extremity. She can perform frequently gross manipulation bilaterally. The claimant can frequently reach forward lateral with right upper extremity. She should avoid concentrated exposure to heat, cold, humidity, hazards, and respiratory irritants. The claimant can maintain concentration, persistence, and pace for two-hour periods for simple, routine, and repetitive tasks and instructions. She can have occasional interaction with the
general public but can have frequent interaction with co-workers.[R. 100, Finding 4.]
At Step 4, the ALJ determined that Plaintiff was unable to perform her past relevant work as a cashier checker. [R. 104, Finding 5.] However, considering her age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 104, Finding 9.] Thus, in light of the above, the ALJ determined that Plaintiff had not been under a disability, as defined in the Act, since October 25, 2016, the date the application was filed. [R. 105, Finding 10.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on July 16, 2020. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ committed reversible error by failing to find certain of Plaintiff's impairments to be severe [Docs. 20 at 33-35; 24 at 4-5] and by concluding that she could perform a limited range of light work [Doc. 20 at 35-36]. Plaintiff also contends the Appeals Council erred by failing to consider additional medical evidence provided on appeal after the denial of her claim. [Docs. 1 at 29-33; 24 at 1-3.]
The Commissioner, on the other hand, argues that substantial evidence supports the ALJ's decision, and the Court should affirm. [Doc. 21.] Specifically, the Commissioner contends the ALJ's Step 2 findings and determination that Plaintiff could perform a limited range of light work are supported by substantial evidence. [Id. at 15-19.] Additionally, the Commissioner argues the Appeals Council properly evaluated some of the evidence submitted after the ALJ's decision and found it did not provide a basis for remand. [Id. at 8-15.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (“Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.'”).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ), ” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 416.972(a)-and gainful-done for pay or profit, whether or not a profit is realized, id. § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 416.974-.975.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See Id. § 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 416.960(b).
Residual functional capacity is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 416.969a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. § 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record, the ALJ must give it controlling weight. 20 C.F.R. § 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
The regulations addressing the Treating Physician Rule apply to applications, like the Plaintiff's, filed before March 27, 2017. See 20 C.F.R. § 416.927. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See Id. § 416.920c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Here, because Plaintiff's SSI application was filed in October 2016, the medical source opinions have been analyzed under the old rules.
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because “it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time”); 20 C.F.R. § 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49, 462, 49, 464 (Oct. 25, 2017); see also 20 C.F.R. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49, 463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49, 463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49, 464; see 20 C.F.R. § 416.928 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Severity of Impairments
A “severe” impairment within the meaning of the regulations is one that “significantly limits . . . [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). Conversely, an impairment is not severe “when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered.” SSR 85-28, 1985 WL 56856, at *3 (Nov. 15, 1985); see also Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984). The claimant has the burden of demonstrating the severity of her impairments. Pass, 65 F.3d at 1203.
Basic work activities are defined as the “abilities and aptitudes necessary to do most jobs.” Gross v. Heckler, 785 F.2d 1163, 1165 (4th Cir. 1986) (citing 20 C.F.R. § 416.921(b)). For example, work activities might include walking, standing, sitting, lifting, pushing, pulling, and reaching; the capacity to see, hear and speak; and understanding, carrying out, and remembering simple instructions. Id.
At Step 2 of the sequential evaluation process, an ALJ must determine whether a claimant's impairments, individually or in combination, are “severe.” 20 C.F.R. § 416.923. So long as a claimant has any severe impairment or combination of impairments, the ALJ must proceed beyond Step 2 and consider all of the impairments (including non-severe impairments) at the remaining steps of the sequential evaluation process. Id.; see also SSR 96-8p, 1996 WL 374184, at *5 (Jul. 2, 1996) (explaining that the existence of one or more severe impairments requires the ALJ to “consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe' ”). Thus, courts have found that an ALJ's failure to find a particular impairment severe at Step 2 does not constitute reversible error where the ALJ determines that a claimant has other severe impairments and proceeds to evaluate all the impairments at the succeeding steps in the evaluation. See Jones v. Astrue, No. 5:07-cv-452-FL, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009) (noting that, although the Fourth Circuit has not addressed the question, that court agreed with the conclusions of other courts that have); Hill v. Astrue, 289 Fed.Appx. 289, 292 (10th Cir. 2008); Pittman v. Astrue, No. 5:08-cv-83-FL, 2008 WL 4594574, *4 (E.D. N.C. Oct. 10, 2008) (finding that ALJ's failure to set forth specific facts at Step 2 regarding severity of the claimant's knee impairment was not reversible error because ALJ considered all of claimant's impairments in formulating the RFC).
In this case, the ALJ found in Plaintiff's favor at Step 2 and proceeded to the remaining steps of the sequential evaluation process. Specifically, the ALJ found Plaintiff had severe impairments of dysfunction of major joints, spinal degenerative disc disease, asthma, and arthralgias [R. 98], thus triggering her duty to continue through the sequential evaluation process. Plaintiff contends the ALJ should have found the following impairments to be severe: psychological impairments, migraine headaches, diabetic neuropathy, cervical radiculopathy with nerve involvement, and post surgical residual limitations from carpal tunnel syndrome. [Doc. 20 at 33.] The ALJ, however, specifically discussed Plaintiff's mental impairments and found them to be nonsevere during the listing analysis, which Plaintiff does not challenge, and the ALJ also noted that the record contained “very scarce formal mental health treatment and psychiatric exacerbations.” [R. 103.] Further, the ALJ noted Plaintiff's complaint of migraines limiting her ability to work and discussed Plaintiff's carpal tunnel impairment, noting that she complained of dropping items and was unable to open items due to weakness in her hands. [R. 101.] While the ALJ did not specifically mention diabetic neuropathy or cervical radiculopathy with nerve involvement, the Court notes that Plaintiff's application for disability did not allege either diabetes or cervical radiculopathy. [See, e.g., R. 263-64.]
Additionally, the record shows that during a September 21, 2016, visit to Dr. Anthony Timms (“Dr. Timms”) with Orthopaedic Associates of Lakelands, Plaintiff was “unsure if she has diabetes or not. She apparently maybe has been told, maybe not. So, just not quite sure about that.” [R. 600.] Upon examination regarding right shoulder pain, Dr. Timms determined that there were “[d]efinately nerve issues going on here and exam really suggests both a cervical radiculopathy and carpal tunnel syndrome, maybe even cubital tunnel syndrome. History suggests a diabetic neuropathy. Honestly, its really kind of hard to tell.” [Id.] Progress notes dated October 19, 2016, indicate that EMG/NCV studies showed Plaintiff's shoulder itself was okay and that the EMG/NCV showed completely normal bilateral upper extremities. [R. 614.] Dr. Timms noted that Plaintiff's right shoulder was negative for impingement and supraspinatus signs and negative on the O'Brien's test. [Id.] Dr. Timms thought “it could be early diabetic neuropathy thyroid issues, etc., so [he would] refer her to her neurologist for work-up of medical conditions [that] may be causing [her] numbness.” [R. 615.] The Court cannot find, however, any actual diagnosis of diabetic neuropathy in the record. Further, with respect to the allegation of cerivical radiculopathy, a CT scan of Plaintiff's cervical spine dated October 23, 2017, showed “no obvious compression fracture or subluxation. Disc spaces are well preserved. Good alignment of C1 and C2.” [R. 972.]
Nevertheless, the ALJ did discuss Plaintiff's impairments, noting as follows:
Family medicine records from December 2015 to September 2016 reflect intermittent complaints of pain symptoms but no specific treatment for back pain. However, objective findings in this period showed that her lungs remained clear bilaterally and that her extremities remained free of any edema. In this period, no objective gait, sensory, reflex, range of motion, coordination, or motor deficits were present (Exhibit 4F). Despite a showing of positive impingement of the right shoulder during an orthopedic examination on September 21, 2016, x-rays of the shoulders were normal (Exhibit 5F). A nerve conduction study performed on October 19, 2016 showed completely normal bilateral upper extremities (Exhibit 7F), and overlapping with this period, emergency room records (Exhibit 9F) reflect treatment for only one asthma exacerbation in December 2016 (Exhibit 19F/24) and unremarkable neurological findings. Despite some periods of musculoskeletal tenderness, objective findings otherwise showed that the claimant maintained a normal range of motion throughout the musculoskeletal with intact motor.
Moreover, family medicine records from December 2016 to June 2016 again reflect intermittent complaints of pain symptoms. However, objective findings in this period showed that her lungs remained clear bilaterally and that her extremities remained free of any edema. In this period, no objective gait, sensory, reflex, range of motion, coordination, or motor deficits were present (Exhibit 12F). To note, her asthma was noted as “stable” on her current regimen (Exhibit 12F/9). Further, A MRI of the left knee performed on March 29, 2017
demonstrated “minimal” fraying of the free margin of the lateral segment of the posterior horn of the medial meniscus (Exhibit 13F). Given the claimant's effusion of the left knee with crepitus, she underwent a left knee scope on May 1, 2017 (Exhibit 11 F) but her knee pain remained unresolved, which affected her gait. Further, the claimant was involved in a motor vehicle accident, which exacerbated her pain symptoms, as bone and joint examinations from March 2017 to August 2018 (Exhibit 14F) showed evidence of right knee pain and crepitus with a decreased range of motion with an antalgic gait. Rheumatology records in November 2018 reflect that she was prescribed Prednisone but that she continued to exhibit painful and tender joints on examination (Exhibit 15F). In conjunction with this period, examinations for the Lung Center spanning from September 2018 to December 2018 reflect unremarkable pulmonary findings, as the claimant displayed normal breath sounds with no evidence of respiratory distress (Exhibit 16F).
Likewise, overlapping with this period, family medicine records from August 2017 to December 2018 again reflect unremarkable findings for all systems. The claimant's complaints of musculoskeletal pain and respiratory difficulties were intermittent in nature (Exhibit 19F), and the claimant's asthma was again assessed as stable with inhaler medication and nebulizer treatments (Exhibit 19F/7). Neuroscience records from May 2017 to December 2018 reflect that her musculoskeletal remained non-tender with no muscle atrophy. Her strength, sensation, and reflexes remained. Again, her respirations remained unlabored, and the claimant presented to examinations in this period in no acute distress (Exhibit 20F). Despite some intermittent findings of positive compression tests and crepitus in the knees, imaging of the right knee demonstrated no fracture or dislocation (Exhibit 23F), and she otherwise remained neurologically intact (Exhibit 21 F). To note, despite her allegations of debilitating symptoms, the record reflects no treatment for any musculoskeletal or asthma symptoms in 2019.[R. 102.] Further, the ALJ found that Plaintiff's treatment has been conservative, that she has been primarily treated with medication and therapy, that she has received no alternative treatments, that there have been no extended hospitalizations for any reasons, and that there have been very scarce formal mental health treatment and psychiatric exacerbations. [R. 103.] Additionally, the ALJ noted that Plaintiff reported in her function report that she takes care of her children, performs her personal care, prepares meals, washes dishes and performs light household chores, drives, shops in stores, handles her finances, attends church, and watches television. [Id.]
Upon review, the Court finds no error in the ALJ's analysis of Plaintiff's impairments at Step 2 of the sequential process. And, even if Plaintiff's alleged symptoms should have been considered severe impairments, the ALJ clearly proceeded past Step 2 to complete the five-step sequential analysis process for determining disability, considering all of the complaints and limitations presented as a result of Plaintiff's impairments. Furthermore, Plaintiff has failed to demonstrate any such actual limitations concerning additional impairments, and the mere diagnosis of an impairment is not enough to prove disability. See Thompson v. Astrue, 442 Fed.Appx. 804, 808 (4th Cir. 2011). Rather, “[t]here must be a showing of related functional loss.” Gross, 785 F.2d at 1166.
The ALJ ultimately determined that Plaintiff's combined impairments were accounted for in developing the RFC. [R. 100.] Accordingly, even if Plaintiff is correct that her alleged psychological impairments, migraine headaches, diabetic neuropathy, cervical radiculopathy with nerve involvement, and post surgical residual limitations from carpal tunnel syndrome should have been classified as severe impairments at Step 2, the ALJ's failure to do so is not reversible error.
Ability to Perform Light Work
Plaintiff also argues the ALJ erred in finding she could perform a limited range of light work based on her muscloskeletal impairments. [Doc. 20 at 35.] Plaintiff, however, fails to direct the Court to any medical evidence of record, either not considered by the ALJ or improperly evaluated by the ALJ, that the Court should consider in its substantial evidence review. Plaintiff doesn't even say specifically why she is unable to perform a limited range of light work.
A claimant's RFC represents “the most [she] can still do despite [her] limitations.” 20 C.F.R. § 416.945(a)(1). SSA guidance directs the ALJ to first consider a claimant's abilities on a “function-by-function basis” before expressing a claimant's RFC in terms of exertional levels: “sedentary, light, medium, heavy, [or] very heavy.” SSR 96-8p at *1; see Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (explaining that an ALJ must explain how he evaluated a claimant's RFC). An RFC assessment “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and non-medical evidence.” SSR 96-8p at *7. The ALJ must identify the evidence relied upon and “build an accurate and logical bridge from the evidence to [the] conclusion.” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (holding that an ALJ's failure to do so was reversible error).
Here, the ALJ sufficiently explained her conclusions when conducting the RFC assessment to explain her finding that Plaintiff was capable of a limited range of light work. The ALJ acknowledged the existence of Plaintiff's impairments, severe and non-severe, and also noted her testimony regarding her limitations before concluding that, in terms of her severe impairments, “the record reflects minimal to normal findings on examinations and improved symptoms with treatment, which is not consistent with allegations of debilitating symptoms.” [R. 101-02.] The ALJ specifically discussed the medical evidence [R. 102-03] and also noted that opinion evidence supported her conclusions that Plaintiff's affective disorder was non-severe and that she was capable of performing a reduced range of light work [R. 103]. The ALJ also relied on opinion evidence finding Plaintiff was capable of performing a reduced range of light work. [Id.] Additionally, opinion evidence from the record noted that Plaintiff's mental status was normal and that she had good ability to “complete basic activities of daily living, relate to others, complete complex tasks, and complete simple, routine tasks.” [Id.] Plaintiff neither challenges the opinion evidence, nor directs the Court to other opinion evidence in the record contradicting this evidence. Upon review, the Court finds the ALJ's RFC assessment is supported by substantial evidence. Accordingly, the Court finds no reason to remand on this basis.
Appeals Council Review
Finally, Plaintiff argues that the Appeals Council erred by refusing to consider medical records from “Dr. Buffaloe of Family and Internal Medicine of Simpsonville and the medical records of Dr. Cynetta Wade of UMG Psychiatry dated after the decision of the ALJ upon the basis that this evidence ‘does not relate to the period at issue' is incorrect.” [Doc. 20 at 31.] Plaintiff contends the evidence is new (because it was not before the ALJ at the time of the hearing), material (because it involves treatment for the same health problems), and relates to the time period on or before the date of the ALJ's decision (because it involves the same impairments and thus relates backward in time to her previous treatment). [Id. at 31-32.] Plaintiff argues that, while the Appeals Council did consider certain additional evidence from Dr. Wade of UMG Psychiatry, Dr. Buffaloe of Family and Internal Medicine of Simpsonville, and Dr. Milner of Palmetto Bone and Joint, it incorrectly concluded that the evidence did not show a reasonable probability that it would change the decision. [Id. at 32.] The Commissioner, on the other hand, contends Plaintiff has offered no specific argument as to how her post-hearing submissions satisfy the governing regulatory requirements, and she has failed to meet her burden of showing that the “evidence was new, material, that there was a reasonable probability it would changing the outcome of the ALJ's decision, and that she had good cause for failing to submit this evidence earlier. Her failure to do so grossly undermines her request for remand.” [Doc. 21 at 11-12.]
Regulatory Requirement for Appeals Council Review
If a claimant is dissatisfied with an ALJ's decision regarding his entitlement to disability benefits, the claimant may request that the Appeals Council review the ALJ's decision. See Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011). The Appeals Council will grant the request for review if there is an apparent abuse of discretion by the ALJ; if there is an error of law; if the ALJ's action, findings, or conclusions are not supported by substantial evidence; if the case concerns a broad policy or procedural issue that may affect the general public interest; or the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the decision, there is a reasonable probability that the additional evidence would change the outcome of the decision, and the party shows good cause for not submitting the evidence earlier. 20 C.F.R. § 416.1470(a) (effective Jan. 17, 2017). “Evidence is new ‘if it is not duplicative or cumulative' and is material if there is ‘a reasonable possibility that the new evidence would have changed the outcome.'” Meyer, 662 F.3d at 705 (quoting Wilkins v. Secretary, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)).
The revised regulations at § 416.1470 make clear that a claimant must show a “reasonable probability” (not merely a possibility) that the additional evidence “would change” the outcome of the decision. This distinction was implicitly accepted by some case law interpreting the prior regulation. See e.g., Davis v. Astrue, No. 5:11-cv-405-JFA-KDW, 2012 WL 4479252, at *3 (D.S.C. Sept. 27, 2012) (noting that the correct standard is whether the new evidence “would have” changed the ALJ's decision, not “‘might have' made a difference”).
Furthermore, the Appeals Council “will only consider additional evidence” that satisfies the requirements of 20 C.F.R. § 416.1470(a)(5) if the claimant also shows “good cause” for not informing or submitting it to the Administration prior to the hearing for very explicit reasons: (i) the claimant was seriously ill and that illness prevented her from contacting the Appeals Council in person, in writing, or through a friend, relative, or other person; (ii) there was a death or serious illness in the claimant's immediate family; (iii) important records were destroyed or damaged by fire or other accidental cause; (iv) the claimant actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or (v) the claimant received a hearing level decision on the record and the Appeals Council reviewed that decision. 20 C.F.R. § 416.1470(b). Where evidence is not new, material, does not relate to the period on or before the hearing decision, does not create a reasonably probability that it would change the outcome of the case, and there is no good cause for failure to submit the evidence earlier (e.g., unusual or unexpected circumstances such death, illness, destruction of it by fire, or confirmation that the claimant actively and diligently sought evidence from a source who would not provide it earlier, etc.), the Appeals Council will not grant review based on the additional evidence. 20 C.F.R. § 416.1470(c).
Evaluation of Evidence by Appeals Council
First, the Court notes that the Appeals Council did accept certain evidence submitted by Plaintiff, but it found that it would not change the ALJ's decision. Specifically, at the hearing before the ALJ, Plaintiff's counsel noted that there were outstanding February 2019 records from a hospitalization and so the ALJ held the record open because Plaintiff's counsel explained he did not know about the records until that day. [R. 143.] Also outstanding were March 28, 2019, records from GHS Psychiatry, which Plaintiff's counsel explained to the ALJ he was still waiting for; therefore, the ALJ acknowledged the same and left the record open. [R. 144.] Those two sets of records were, in fact, made part of the record at 24F and 25F. [R. 1305-44.] The Appeals Council noted that it exhibited the above-referenced documents but “found that the reasons do not provide a basis for changing the Administrative Law Judge's decision.” [R. 1.]
The Appeals Council also considered other evidence submitted by Plaintiff which it did not exhibit. [R. 2.] The Appeals Council explained as follows:
You submitted medical records from UMG Psychiatry dated May 8, 2018 to March 28, 2019 (27 pages); Family and Internal Medicine of Simpsonville dated March 5, 2019 to May 22, 2019 (61 pages); Palmetto Bone and Joint dated September 20, 2018 to July 15, 2019 (11pages) and Laurens County Memorial Physical Therapy dated August 27, 2018 to September 25, 2018 (8 pages total). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.
You submitted medical records from Family and Internal Medicine of Simpsonville dated August 22, 2019 (21 pages) and UMG Psychiatry dated July 11, 2019 to September 4, 2019 (59 pages). The Administrative Law Judge decided your case through July 1, 2019. 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 July 1, 2019.
If you want us to consider whether you were disabled after July 1, 2019, you need to apply again. If you file a new claim for supplemental security income within 60 days after you receive this letter, we can use August 23, 2019, the date of your request for review, as the date of your new claim. The date you
file a new claim can make a difference in the amount of benefits we can pay.[Id.]
Discussion
The Act's administrative scheme, found in 20 C.F.R. § 416.1470(b), governs the circumstances under which the Appeals Council is to review an ALJ's decision. “[T]he regulation sets forth a mandatory rule that the Appeals Council must consider new and material evidence relating to the period prior to the ALJ decision in determining whether to grant review, even though it may ultimately decline review.” Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95 (4th Cir. 1991) (citing case law from sister circuits).
The proper manner and procedure for the handling of new evidence submitted to the Appeals Council was discussed extensively by the Fourth Circuit in Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011). In sum, when a claimant requests review of an ALJ decision, the Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to the ALJ. Where a claimant submits additional evidence that was not before the ALJ when requesting review by the Appeals Council, and if the evidence is new and material, the Appeals Council is to evaluate the entire record, including the new and material evidence, to see if it warrants any change in the ALJ's decision. If, after this evaluation, the Appeals Council finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record, it will grant the request for review and either issue its own decision on the merits or remand the case to the ALJ. Conversely, if upon consideration of the evidence, including any new and material evidence, the Appeals Council finds that the ALJ's action, findings or conclusions are not contrary to the weight of the evidence as a whole, the Appeals Council can simply deny the request for review. See generally, Meyer, 662 F.3d at 704-705.
Thus, in determining whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard, the Court must “‘review the record as a whole' including any new evidence that the Appeals Council ‘specifically incorporated . . . into the administrative record.'” Meyer, 662 F.3d at 704 (alterations in original) (internal citation omitted). If the court cannot determine whether, in light of the additional evidence submitted, the Commissioner's decision is supported by substantial evidence, remand is warranted. Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because, upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits). The Meyer Court recognized, however, that in some cases the record would clearly show that the additional evidence did not cause the ALJ's decision to be unsupported by substantial evidence. Id. (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996)). Thus, a court should affirm an ALJ's denial of benefits after reviewing new evidence presented to the Appeals Council where, even with the new evidence, substantial evidence supports the ALJ's findings. Id. However, reversal is required if, on consideration of the record as a whole, the court “simply cannot determine whether substantial evidence supports the ALJ's denial of benefits.” Id. at 707.
Exhibits 24 and 25
Exhibit 24 contains documents dated February 19, 2019, through February 22, 2019. [R. 1306-27.] Plaintiff was apparently admitted to the psychiatric unit at Marshall Pickens Hospital with suicide precaution for worsening depression and anger. [R. 1309, 1316.] This was her first psychiatric hospitalization. [R. 1316.] Plaintiff complained of three days of depressed mood, irritability, poor sleep, decreased appetite and energy, and crying spells. [R. 1309.] Plaintiff also reported poor concentration triggered by an argument with her father. [Id.] Plaintiff reported being unable to afford her medication and had not taken any of her prescribed medications for three days. [R. 1316.] The conclusion was that her presentation was most likely a result of poor medication compliance and psycho-social stressors, including interpersonal conflicts and financial stressors. [Id.] Plaintiff was restarted on Sertraline and Klonopin and referred back to her outpatient therapist following discharge. [R. 1315.] Over the course of her stay, Plaintiff's mood and affect improved and she was observed to have an adequate appetite and sleep pattern. [R. 1309.]
Exhibit 25 contains documents from UMG Psychiatry dated March 28, 2019, which appear to be a listing of Plaintiff's treatment history. [R. 1328-44.] Dr. Cynetta Wade (“Dr. Wade”) noted that Plaintiff had a history of depression, anxiety, and emotional dysregulation. [R. 1342.] She endorsed a history of bullying as a possible etiology of anger and low frustration. [Id.] Dr. Wade noted that, despite her poor judgment when angry, Plaintiff has fair insight into her behavior which she wanted to change, and she seemed to be invested in treatment despite her current circumstances. [R. 1342-43.] Plaintiff reported relief with Sertraline and agreed to a trial of Hydroxyzine for anxiety with a plan to decrease/eliminate Klonopin. [R. 1343.]
While Plaintiff claims the introduction of this evidence would result in a change to the ALJ's decision, the Court is unclear as to what change would be made. As an initial matter, the ALJ noted Plaintiff had limited formal mental health treatment and no extended hospitalizations and psychiatric exacerbations. [R. 103.] The ALJ also noted that Plaintiff's treatment had been conservative during that period, as she had primarily been treated with medication and therapy. The evidence provided in Exhibits 24 and 25 would not change the ALJ's conclusions. Plaintiff does not explain how any information provided in these exhibits contradicts the ALJ's decision or requires further consideration. The fact that Plaintiff was exhibiting mental health symptoms while not on her medication is not new. The fact that she required medications to treat her mental health symptoms is not new. These factors were taken into consideration by the ALJ in developing Plaintiff's RFC. Furthermore, Plaintiff's own treating physician, Dr. Leon Buffaloe, opined that Plaintiff's mental status was normal and that she had a “good ability to complete basic activities of daily living, relate to others, complete complex tasks, and complete simple, routine tasks.” [R. 103.] The ALJ accorded this opinion controlling weight. The Court declines to engage in a re-weighing of the evidence in this matter.
New Evidence Not Exhibited
As stated, Plaintiff submitted evidence from the following sources for consideration by the Appeals Council after the hearing before the ALJ:
• UMG Psychiatry dated May 8, 2018, to March 28, 2019, and July 11, 2019, to September 4, 2019;
• Family and Internal Medicine of Simpsonville dated March 5, 2019, to May 22, 2019, and August 22, 2019;
• Palmetto Bone and Joint dated September 20, 2018, to July 15, 2019; and
• Laurens County Memorial Physical Therapy dated August 27, 2018, to September 25, 2018.
The ALJ conducted Plaintiff's hearing on March 20, 2019, and decided this case through July 1, 2019.
While Plaintiff contends the evidence presented is “new in the sense that it was not before the ALJ at the time of the hearing and it is material because it involves continuous treatment of the claimant for the same health problems from which she had been suffering for years” [Doc. 20 at 31], the determination of new evidence actually requires a finding that the evidence is “not duplicative or cumulative” and a determination regarding material evidence requires a finding that “there is ‘a reasonable possibility that the new evidence would have changed the outcome.'” See, Meyer, 662 F.3d at 705. Plaintiff provides no argument that the evidence she seeks to be considered as new is not duplicative or cumulative of evidence already before the ALJ. Additionally, Plaintiff provides no argument as to how any of additional evidence submitted would change the ALJ's decision regarding disability during the relevant time period. Plaintiff does not, for instance, reference any statement by a treating physician that Plaintiff was more limited than those limitations found by the ALJ during the relevant time period.
The additional evidence presented, which is dated before the hearing before the ALJ, includes evidence from UMG Psychiatry from May 8, 2018, through March 20, 2019; Family and Internal Medicine of Simpsonville from March 5, 2019, through March 20, 2019; Palmetto Bone and Joint from September 20, 2018, through March 20, 2019; and Laurens County Memorial Physical Therapy from August 27, 2018, to September 25, 2018 (the “Available Evidence”).
With respect to the Available Evidence, the Plaintiff is required to show “good cause” for not informing or submitting it to the Administration prior to the hearing for very explicit reasons: (i) the claimant was seriously ill, and her illness prevented her from contacting the Administration in person, in writing, or through a friend, relative, or other person; (ii) there was a death or serious illness in her immediate family; (iii) important records were destroyed or damaged by fire or other accidental cause; (iv) the claimant actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or (v) the claimant received a hearing level decision on the record and the Appeals Council reviewed her decision. 20 C.F.R. § 416.1470(b). Plaintiff raises none of these expressed reasons for her failure to provide this information prior to the hearing. Thus, the Court finds the Appeals Council properly declined to include this evidence in the record. See Hammond v. Apfel, 5 Fed.Appx. 101, 103-04 (4th Cir. 2001) (holding that the plaintiff did not establish good cause for failing to submit evidence regarding an impairment until after the ALJ's decision because he offered no excuse that he could not have obtained the evidence earlier).
With respect to the evidence dated after the hearing and/or after the decision was issued, Plaintiff was required to show that the evidence relates to the period on or before the decision, that there is a reasonable probability that the additional evidence would change the outcome of the decision, and that the party had good cause for not submitting the evidence earlier. This late acquired evidence presented by Plaintiff includes: UMG Psychiatry dated March 21, 2019, through March 28, 2019, and July 11, 2019, to September 4, 2019; Family and Internal Medicine of Simpsonville dated March 21, 2019, to May 22, 2019, and August 22, 2019; and Palmetto Bone and Joint dated March 21, 2019, to July 15, 2019 (“Late Acquired Evidence”).
Late Acquired Evidence from UMG Psychiatry shows that, in March 2019, Plaintiff was seen and noted to have an open and cooperative attitude with good eye contact, intact memory, concentration, and attention, and an appropriate fund of knowledge. [R. 61.] Plaintiff was noted to be invested in treatment and encouraged to continue in psychotherapy. [R. 137.] Documents also show continued reports of depression in July 2019, in light of threats from someone against her [R. 42], but intact memory, concentration, attention, and appropriate fund of knowledge [R. 46]. Plaintiff underwent a medication adjustment in July 2019, with an increase in Sertraline, and some relief reported form Hydroxyzine. [R. 57.] Again, her memory, concentration, attention were intact, and her fund of knowledge was appropriate. [R. 61.] In August 2019, Plaintiff reported some improvement in her depressed mood, and efficacy with her current psychotropic medications. [R. 72.] Again, her memory, concentration, attention were intact, and her fund of knowledge was appropriate. [R. 76.] In September 2019, Plaintiff was noted to be in psychotherapy with good efficacy and requested to taper off Zoloft and start Prozac. [R. 86.] Again, her memory, concentration, attention were intact, and her fund of knowledge was appropriate. [R. 90.]
Late Acquired Evidence from Family and Internal Medicine of Simpsonville shows Plaintiff was seen at the end of August 2019, with complaints of numbness in her toes, tingling, and cramps in her legs. [R. 23.] Documents also show that Plaintiff's chronic depression was worsening and that she feels if she leave the house she will be come upset and angry. [Id.] On physical exam, Plaintiff had a normal range of motion on musculoskeletal exam, with no tenderness or edema. [R. 28.] Plaintiff was started on cyclobenzaprine or Flexeril and tramadol or Ultram. [R. 30.] Plaintiff was discontinued on Toradol and Zofran. [R. 32.] Notes from a follow up visit in April 2019, show Plaintiff was referred to rheumatology for rheumatoid arthritis involving both knees with negative rheumatoid factor. [R. 209.] On musculoskeletal exam, however, Plaintiff was negative for arthraigias and gait problems. [R. 215.] She also had normal range of motion and exhibited no edema or tenderness. [Id.] Notes from May 2019, show Plaintiff complained of an earache and knots behind her ear. [R. 234.] Treatment notes indicate that all other systems were negative with no other complaints. [R. 239.] On musculoskeletal exam, Plaintiff had normal range of motion with no edema or tenderness. [Id.]
Late Acquired Evidence from Palmetto Bone and Joint from April 2019 indicates that Plaintiff complained of waking up some mornings with her thumb locked and considerable difficulty straightening it out. [R. 250.] Those treatment notes also indicate that Plaintiff is not diabetic and that she continues to have mild symptoms from her bilateral carpal tunnel decompression, without significant signs of atrophy. [Id.] Plaintiff was scheduled for a left trigger thumb decompression. [Id.] In June 2019, Plaintiff was seen one week after her post operative trigger finger release. [R. 251.]
Plaintiff provided no discussion regarding how this Late Acquired Evidence is either new (not duplicative) or presents a “reasonable probability” that it would change the outcome of the decision or that it actually relates back to the relevant time period. The regulations clearly contemplate and protect against parties attempting “to vault the newness hurdle” by simply submitting evidence that purports to contradict the ALJ's findings after the fact. See Fagg v. Chater, 106 F.3d 390, 1997 WL 39146 at *2 (4th Cir. 1997) (citing Evangelista v. Sec'y of Health and Human Servs., 826 F.2d 136, 140 (1st Cir. 1987) (“If a losing party could vault the ‘newness' hurdle . . . merely by retaining an expert to reappraise the evidence and come up with a conclusion different from that reached by the hearing officer, then the criterion would be robbed of all meaning.”)); Szubak v. Sec'y of Health and Human Servs., 745 F.2d 831, 833-34 (3d Cir. 1984) (“We recognize that claimants should generally be afforded only one fair opportunity to demonstrate eligibility for benefits under any one set of circumstances.”).
Plaintiff also provides no basis for finding that the Late Acquired Evidence relates back to the relevant time period. Plaintiff seems to ask the Court to merely assume a relation back because the evidence involves the same impairments, though dated after the ALJ's decision. This reasoning belies the regulations. There is no medical opinion that Plaintiff's impairments worsened or that some new impairment was diagnosed that was connected to Plaintiff's treatment prior to the ALJ's decision. Instead, as Plaintiff argues, the records involve the same impairments considered by the ALJ in concluding her decision. Moreover, the Late Acquired Evidence provides no information as to how the Plaintiff's symptoms affected her work-related abilities during the relevant time. See Jones v. Astrue, No. 4:11-cv-146-FL, 2012 WL 3822204, at *2 (E.D. N.C. June 5, 2012), Report and Recommendation adopted by 2012 WL 3834924 (E.D. N.C. Sept. 4, 2012). Accordingly, the Court finds that the Appeals Council properly declined to remand the ALJ's decision based on the Additional Evidence or the Late Acquired Evidence.
CONCLUSION
Wherefore, based upon the foregoing, it is recommended that the decision of the Commissioner be AFFIRMED.
IT IS SO RECOMMENDED.