Opinion
C/A No. 2:19-cv-01834-DCC-MGB
05-11-2020
JOHN AMICK, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff John Amick ("Plaintiff'), through counsel, brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was born March 13, 1965, and was 50 years old on his amended alleged onset of disability date, November 27, 2015. (R. at 16, 22.) Plaintiff claims disability due to, inter alia, vascular disease, numbness of feet, and left ear hearing problems. (R. at 241.) Plaintiff has past relevant work as an installation installer. (R. at 22.)
Plaintiff filed for DIB and SSI on January 7, 2016. (R. at 16.) His application was denied initially and on reconsideration. (R. at 16.) Following a hearing, Administrative Law Judge (ALJ) Thaddeus J. Hess denied Plaintiff's claim on August 3, 2018. (R. 16-24.) 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 March 31, 2016.
(2) The claimant has not engaged in substantial gainful activity since November 27, 2015, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairment: peripheral vascular disease with neuropathy of the feet (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can never climb ladders, ropes and scaffolds; and must avoid concentrated exposure to extreme cold or heat, and workplace hazards such as unprotected heights and moving machinery.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on March 13, 1965 and was 50 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (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).(R. at 16-24.)
(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 November 27, 2015, 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 the Appeals Council failed to properly evaluate new and material evidence related to Plaintiff's peripheral vascular disease in declining to review the ALJ's decision. (Dkt. No. 15 at 14-18.) Plaintiff further asserts that the ALJ failed to properly explain how his RFC assessment accounted for Plaintiff's alleged impairments. (Id. at 11-14.) Finally, Plaintiff argues that the ALJ erred in his analysis of Plaintiff's subjective statements. (Id. at 19-20.) The undersigned considers Plaintiff's arguments below.
A. The ALJ Decision
In his decision, the ALJ considered whether Plaintiff's severe impairment, peripheral vascular disease with neuropathy of the feet, rendered Plaintiff disabled. He ultimately found Plaintiff retained the residual functional capacity ("RFC") to perform light work, subject to certain limitations. (R. at 19.) A job can be in the light work "category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities." 20 C.F.R. § 416.967(b). In making his decision, the ALJ considered the evidence in the record dated from November 27, 2015 to October 19, 2017, as well as Plaintiff's subjective testimony at the ALJ hearing, which was held on April 11, 2018. (R. at 16, 20-22.)
With respect to the objective medical evidence, the ALJ considered, inter alia, (1) a medical note on November 27, 2015 from Newberry Memorial Hospital showing "moderate erythema and tenderness, and mild swelling in the distal aspect of the mid-foot," and noting that Plaintiff "experienced improvement by discharge"; (2) a follow up with Plaintiff's treating physician, William Dixon, MD, on December 10, 2015 wherein Plaintiff "was counseled on the importance of cessation of smoking cigarettes"; (3) a consultative examination performed by Branham Tomarchio, MD, on April 23, 2016, wherein the "[e]xamination showed the claimant walked with a normal gait, appeared comfortable in a seated position and in the supine position, and was able to arise straight up from supine"; (4) an ultrasound evaluation on March 13, 2017 showing "left ankle brachial indices consistent with moderate arterial insufficiency, and right ankle brachial indices consistent with mild arterial insufficiency"; (5) a medical note on March 28, 2017 from the Free Medical Clinic of Newberry ("the Clinic"), where Plaintiff presented "with pain and numbness in his feet and left, treated with Plavix since March 7, 2017, and he was also prescribed Chantix"; (6) additional medical notes from the Clinic on April 18, 2017, wherein Plaintiff presented "with no significant improvement in his symptoms on Plavix," and on June 27, 2017, wherein Plaintiff presented "with worsening pain and swelling of the feet and legs with occasional right ankle pain shooting upward"; (7) a consultation with Scott Petit, MD on July 20, 2017 where Plaintiff presented "with significant claudication type symptoms which had worsened recently"; (8) a CT angiography on September 22, 2017 showing "occlusion of the stented segment of the left common iliac artery, which was re-stented with satisfactory runoff demonstrated to each foot" and wherein Plaintiff "was restarted on Plavix and initiated on aspirin therapy"; and (9) a follow up examination on October 19, 2017 showing Plaintiff "was doing well overall, had a bit of femoral neuropathy, had no significant claudication, and the leg was well perfused with no significant femoral hematoma." (R. at 20-21.)
As for Plaintiff's subjective statements, the ALJ found "they are inconsistent concerning the severity of his symptoms and the extent of his limitations. Neither the severity nor the extent is supported by the objective medical evidence." (R. at 21.) The ALJ proceeded to summarize the evidence he considered as conflicting with Plaintiff's subjective statements including the October 19, 2017 examination note, Plaintiff's reported activities including showering and dressing and going on short grocery trips, and Plaintiff's consultative examination with Dr. Tomarchio. (R. at 21.)
The ALJ then considered the opinion evidence in the record, stating:
I give partial weight to the opinion of Dr. Tomarchio, who indicated that the claimant was able to sit and stand without difficulty, had normal fine and gross manipulative skills, and could communicate without difficulty (Exhibit 3F). This opinion is supported by the consultative examination findings and the longitudinal record. Limitations in accordance with this opinion have been included in the claimant's residual functional capacity assessment.
I give partial weight to Dr. Dixon's report that the claimant had peripheral vascular disease causing neuropathy of the feet, which limited his ability to climb and stand for long periods of time, and it was dangerous for him to attempt many duties (such as climbing ladders), that he performed on his past construction job (Exhibit 7F).
These findings are consistent with treatment records, and are the product of a treating relationship.(R. at 22.)
The undersigned gives little weight to the State Agency physicians who provided residual functional capacity assessments at the initial and reconsideration levels and concluded that the claimant is capable of a limited range of medium level work (Exhibits 1A, 2A, 7A & 8A). While these opinions may have been reasonable based upon the evidence available at the time, additional evidence received into the record and testimony at the hearing convinces the undersigned that the claimant is more limited than was originally determined, especially in view of limitations resulting from peripheral vascular disease. The undersigned gives the claimant every benefit of the doubt and concludes that he can perform a limited level of light work.
Dr. Dixon's report states, in its entirety, "John has peripheral vascular disease that causes some neuropathy of his feet. This limits his ability to climb and stand on his feet for long periods. As he works construction, it is dangerous for him to attempt many of the acts (such as climbing ladders) that he was previously able to perform." (R. at 346.)
The referenced State Agency physician opinions are dated May 5, 2016 and June 28, 2016. (R. at 61, 70, 84, 93.)
Noting that Plaintiff could not perform his past relevant work with his RFC, the ALJ referenced the vocational expert's ("VE") testimony at the hearing. (R. at 23.) At the ALJ hearing, the VE testified that an individual "with the claimant's age, education, work experience, and residual functional capacity" could perform certain jobs existing in the national economy. (R. at 23.) Relying on the VE's testimony, the ALJ found that "the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy" and therefore, Plaintiff was not disabled. (R. at 23.)
B. Appeals Council Consideration of Additional Evidence
Plaintiff argues that the Appeals Council failed to properly evaluate new and material evidence related to Plaintiff's peripheral vascular disease in declining to review the ALJ's decision. (Dkt. No. 15 at 14-18.) Specifically, Plaintiff submitted to the Appeals Council: (1) medical records from Newberry County Memorial Hospital dated May 15, 2018; (2) medical records from Free Medical Clinic of Newberry, Inc. ("the Clinic"), dated May 8, 2018 and June 12, 2018; (3) medical records from the Clinic dated August 28, 2018; and (4) a Treating Source Statement from John Thompson, MD, an internal medicine specialist, dated September 25, 2018. (R. at 52-58.) The Hospital record dated May 15, 2018 reviews a "frontal radiograph of the chest," and finds "[c]oarsening of the interstitial lung markings in the lung bases, which I suspect is chronic." (R. at 56.) The Clinic records dated May 8, 2018 and June 12, 2018 show that Plaintiff was "back on Chantix" and state that Plaintiff is "not much better in terms of [left] sided claudication ([approximately] 30 yards)." (R. at 57-58.) The Clinic record dated August 28, 2018 notes "bumps that are turning purple on feet and swelling." (R. at 54.) The record notes Plaintiff "must keep legs level for best comfort" and later states, "keep feet level [at] home, cannot work." It notes that Plaintiff "has been on Chantix" at full dose for six months. (R. at 54.) Finally, Dr. Thompson's Treating Source Statement dated September 25, 2018, notes that he has provided 1.5 years "of follow up" for Plaintiff. (R. at 52.) He diagnoses Plaintiff with peripheral artery disease and claudication. He states there is claudication in Plaintiff's left leg and right hip, and states Plaintiff "cannot walk more than 1 block." (R. at 52.) He states that Plaintiff can rarely twist, and never stoop, crouch, climb ladders, or climb stairs. (R. at 53.) He states that Plaintiff's symptoms "are present all days." (R. at 53.) When asked to estimate how many days per month Plaintiff was likely to be absent from work due to his impairments, Dr. Thompson wrote, "N/A." (R. at 53.)
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). New and material evidence "need not have existed during that period, but rather must be considered if it has any bearing upon whether the claimant was disabled during the relevant period of time." Outlaw v. Colvin, No. 5:11-CV-647-FL, 2013 WL 1309372, at * 2 (E.D.N.C. Mar. 28, 2013) (citing Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987)).
Because the Appeals Council issued its decision denying review on April 25, 2019, the most recent version of 20 C.F.R. § 404.970 is applicable. (R. at 1-7.)
In denying Plaintiff's request for review, the Appeals Council first referenced the Hospital record dated May 15, 2018 and the Clinic records dated May 8, 2018 and June 12, 2018, stating "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." (R. at 2.) The Appeals Council then referenced the Clinic record dated August 28, 2018 and the Treating Source Statement dated September 25, 2018, stating, "The Administrative Law Judge decided your case through August 3, 2018. 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 August 3, 2018." (R. at 2.)
Here, Plaintiff argues that the Appeals Council should have considered the Clinic record dated May 8, 2018 because it "contradicts the ALJ's finding that Amick 'has done well since' the re-stenting procedure in the fall of 2017.'" (Dkt. No. 15 at 16.) Specifically, this record states that Plaintiff is "not much better in terms of [left] sided claudication ([approximately] 30 yards)." (R. at 58.) Plaintiff next argues the Appeals Council should have considered and exhibited the Clinic record dated August 28, 2018 and the Treating Source Statement dated September 25, 2018. Plaintiff asserts that the above additional evidence should have been considered and exhibited because it is new, material, relates back to the time period at issue, and there is a reasonable probability that the additional evidence would change the outcome of the decision. (Dkt. No. 15 at 14-18.) The August 28, 2018 record states that Plaintiff "must keep legs level for best comfort" and further states, "Keep feet level [at] home, cannot work." (R. at 54.) In his Treating Source Statement, Dr. Thompson opines, inter alia, that due to Plaintiff's claudication, Plaintiff cannot walk more than one block, and that his symptoms "are present all days." (R. at 42-53.)
Plaintiff also argues that the Appeals Council erred in failing to consider a treatment note from October 26, 2017 from Carolina Cardiac Surgery that states Amick was scheduled for a re-intervention of his left iliac artery based on his CTA findings." (Dkt. No. 15 at 15-16.) However, the record indicates this evidence was not submitted to Appeals Council. Accordingly, the undersigned does not consider it here.
Here, Plaintiff only makes specific arguments for the consideration of the records dated May 8, 2018, August 28, 2018, and September 25, 2018. (Dkt. No. 15 at 15-16.) Accordingly, the undersigned only addresses whether these records should have been considered by the Appeals Council.
In response, the Commissioner asserts that "substantial evidence supports the ALJ's findings, even when considering the additional evidence." (Dkt. No. 16 at 15.) The Commissioner contends that Dr. Thompson's Statement opines that Plaintiff's "claudication significantly limits him, yet the doctor fails to identify the limiting symptoms, nor does he feel that the impairment would cause him to miss work." (Id.) The Commissioner further contends that this opinion "is inconsistent with more timely-relevant findings of the treating cardiovascular surgeon, Dr. Petit, that Amick exhibited only 'a bit of femoral neuropathy" and no significant claudication symptoms . . . and the testing that showed no evidence of arterial occlusive disease . . . and no hemodynamically significant stenosis." (Id.) The Commissioner also argues that "[t]he two clinic treatment notes describing swelling . . . contradict[] the more probative findings of the cardiovascular specialist." (Id.)
"[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." Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 341 (4th Cir.2012) (citation omitted) (finding the ALJ erred by not giving retrospective consideration to the medical evidence compiled after the claimant's date last insured). Indeed, in Bird, the Fourth Circuit noted that often the "most cogent proof" of a claimant's pre-date last insured disability comes from retrospective consideration of subsequent medical records. Id. (citing Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). The Bird decision further provides that the subsequent medical evidence need not include a retrospective diagnosis so long as the treatment related to the claimant's "history of impairments." Id. Additionally, the Bird decision held that such retrospective medical evidence "is especially appropriate when corroborated by lay evidence." Id. at 342. Accordingly, "if there is a linkage that relates the medical evidence to [Plaintiff's] condition [before the ALJ rendered her decision], . . . the information [Plaintiff] provided to the Appeals Council should be considered." Booker v. Colvin, Case No. 1:13-cv-2033-TMC, 2014 WL 6816878, at *4 (D.S.C. Dec. 4, 2014).
While the Commissioner argues that Bird does not apply because Bird specifically addressed evidence created after a claimant's date last insured, (Dkt. No. 16 at 15 n.4), numerous courts in this district have "suggested that the holding [in Bird] extends to situations in which evidence arises after the date of an ALJ's decision, but before the Appeals Council makes a decision to grant or deny review." Grant v. Berryhill, No. 6:16-cv-1900-BHH-KFM, 2017 WL 3208536, at *9 (D.S.C. July 12, 2017), adopted by, 2017 WL 3193588 (D.S.C. July 26, 2017); see also Poston v. Berryhill, No. 1:17-cv-345-MBS-SVH, 2017 WL 6326864, at *20 (D.S.C. Nov. 13, 2017), adopted by, 2017 WL 6270588 (D.S.C. Dec. 7, 2017); Bordelon v. Berryhill, No. 6:16-cv-448-RBH-KFM, 2017 WL 1251082, at *10 (D.S.C. Mar. 16, 2017) ("While Bird specifically addressed evidence created after a claimant's date last insured, this court has suggested that the holding extends to situations in which evidence arises after the date of an ALJ's decision, but before the Appeals Council makes a decision to grant or deny review"), adopted by, 2017 WL 1231137 (D.S.C. Apr. 4, 2017); Dickerson v. Colvin, No. 5:12-cv-33-DCN, 2013 WL 4434381, at *14 (D.S.C. Aug. 14, 2013) (holding that a medical opinion dated more than a year after the ALJ's decision was new and material evidence that warranted remand). Based on the case law in this district, the undersigned finds Bird applicable here.
In support of its argument here, the Commissioner cites Gray v. Colvin, No. 5:14-CV-01172-JMC, 2015 WL 5782076, at *5 (D.S.C. Sept. 30, 2015) ("Bird was based on evidence already in the record and not new evidence. . . . Here, unlike Bird, Plaintiff is seeking remand based upon evidence that did not exist prior to the ALJ's determination, not upon evidence that was improperly considered."). However, as discussed above, Gray appears to be an outlier interpretation of Bird in this district.
Here, the evidence of the August 28, 2018 Clinic record and Dr. Thompson's September 25, 2018 Treating Source Statement "permits an inference of linkage" to the relevant period. Dr. Thompson notes that he has treated Plaintiff for 1.5 years "of follow-up" based on Plaintiff's diagnosis of peripheral artery disease and claudication. (Dkt. No. 52.) Thus, he had a treating relationship with Plaintiff prior to the issuance of the ALJ's decision. Similarly, the August 28, 2018 record notes Plaintiff's diagnosis for peripheral artery disease. (R. at 54.) Given that the ALJ considered whether Plaintiff's impairment of "peripheral vascular disease with neuropathy of the feet" rendered him disabled, the undersigned finds the above records relate to Plaintiff's "history of impairments." Bird, 699 F.3d at 341.
Further, consideration of this evidence is appropriate for several reasons. First, it is corroborated by the lay evidence, which the ALJ seemingly discounted in his decision. Id. at 342 ("[R]etrospective consideration of medical evidence is especially appropriate when corroborated by lay evidence."). Specifically, at the ALJ hearing, Plaintiff testified that to make himself more comfortable, he will "lean back and stretch [his] legs out." (R. at 41.) He testified that when his feet and ankles swell, he will "prop them up on the arm of the couch . . . or either lay in the bed and prop them on the pillow." (R. at 44.) At the hearing, Plaintiff testified he generally did this "once a day." (Id.) The August 28, 2018 Clinic record directly corroborates Plaintiff's testimony, as it states Plaintiff "must keep legs level for best comfort," and he should "keep feet level at home." (R. at 54.) See Bird, 699 F.3d at 342 (noting the claimant's "testimony at the administrative hearing and a statement submitted by his wife to the Appeals Council buttress the medical evidence of [claimant's] pre-DLI condition").
Also, there is a reasonable probability that consideration of this new evidence would have changed the outcome of the ALJ's decision, given the VE's testimony at the hearing. Specifically, at the hearing, the ALJ asked the VE, "as far as the light work goes, if the individual, because of symptoms of swelling and leg pain, would need to elevate their legs at at least waist level at least twice a day for approximately 30 minutes each time, a minimum of twice a day for 30 minutes, is that going to affect [the] jobs [Plaintiff can perform] in any way?" (R. at 49-50.) The VE responded, "Certainly that would—that is, in essence, lying down, and a need to lie down on a regular basis is certainly not a part of the world of work at any skill or exertional level." (R. at 50.) The August 28, 2018 Clinic record indicates Plaintiff would need to get his legs elevated at least twice a day, as it states Plaintiff "should "keep feet level at home." Accordingly, there is a possibility the ALJ could find this evidence indicates Plaintiff cannot perform any jobs existing in significant numbers in the national economy.
Additionally, Dr. Thompson's opinion as to Plaintiff's functional limitations, namely an inability to walk more than one block, directly contradicts the RFC assessed by the ALJ. Likewise, the May 8, 2018 Clinic record similarly contradicts Plaintiff's RFC, as it finds Plaintiff can only walk approximately 30 yards due to his claudication. (R. at 58.) Specifically, the ALJ found Plaintiff retained the RFC to perform light work, subject to certain limitations. (R. at 19.) As noted above, a job can be in the light work "category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities." 20 C.F.R. § 416.967(b). The only limitations given by the ALJ as to Plaintiff's ability to perform light work were Plaintiff "can never climb ladders, ropes, and scaffolds; and must avoid concentrated exposure to extreme cold or heat, and workplace hazards such as unprotected heights and moving machinery." (R. at19.) The ALJ did not note any limitation to walking or standing in Plaintiff's RFC assessment. Based on the foregoing, the undersigned finds there is a reasonable possibility Dr. Thompson's opinion evidence and the May 8, 2018 Clinic record would have changed the outcome of the ALJ's decision.
At the hearing, the ALJ stated that "[t]he standing and the walking for light is, of course, six hours of an eight-hour workday." (R. at 48.)
While the Commissioner notes that Dr. Thompson is not a cardiovascular specialist, that does not mean his opinion testimony as Plaintiff's treating physician should automatically be discounted. Social Security regulations expressly provide that special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 416.927(c)(2). Further, in Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011), the Fourth Circuit held that where the treating physician in that case submitted a letter to the Appeals Council detailing Plaintiff's injuries and recommending significant restrictions on Plaintiff's activity, it "simply [could not] determine whether substantial evidence support[ed] the ALJ's denial of benefits" because the ALJ, in rendering his decision, had specifically emphasized that the record before him did not include any restrictions from the treating physician. The Meyer court stated, inter alia,
Because Plaintiff filed his claim for SSI prior to March 27, 2017, this section applies. See 20 C.F.R. § 416.927.
[N]o fact finder has made any findings as to the treating physician's opinion or attempted to reconcile that evidence with the conflicting and supporting evidence in the record. Assessing the probative value of competing evidence is quintessentially the role of the fact finder. We cannot undertake it in the first instance. Therefore, we must remand the case for further fact finding.Id.
In light of the above Social Security regulations and the Meyer decision, it is likewise irrelevant to the undersigned's instant analysis that Dr. Thompson is not responsible for determining Plaintiff's RFC. "Special consideration" should be given to Dr. Thompson's opinion as Plaintiff's treating physician, and it is not for the Court to determine how that opinion evidence impacts Plaintiff's RFC. See Meyer, 662 F.3d at 707 ("Assessing the probative value of competing evidence is quintessentially the role of the fact finder. We cannot undertake it in the first instance."); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) ("In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].").
In sum, the additional evidence submitted to the Appeals Council, specifically, the records dated May 8, 2018, August 28, 2018, and September 25, 2018, supports Plaintiff's claim of disability, and no fact finder has made any finding as to this evidence, or attempted to reconcile this evidence with the other evidence in the record. This additional evidence is new and material, and should therefore be considered. See, e.g., Todd v. Comm'r of Soc. Sec. Admin., Case No. 2:14-cv-01833-TLW, 2015 WL 4633597, at *7 (D.S.C. Aug. 3, 2015) (remanding where "Dr. McHenry's June 2013 opinion is inconsistent with the ALJ's RFC findings, and it also casts some doubt upon the ALJ's analysis of Plaintiff's pain" and finding "there is a 'reasonable possibility that th[is] new evidence would have changed the outcome.'"); Byars v. Colvin, No. Case No. 1:14-cv-3694-MGL, 2015 WL 4423342, at *22 (D.S.C. July 17, 2015) (recommending the case be remanded for consideration of new evidence including "the opinions of treating physicians and a significant objective test report. . . . [b]ecause neither the ALJ nor the Appeals Council attempted to reconcile this evidence with the other evidence in the record"); Sederbaum v. Colvin, Case No. 1:14-cv-1777-TMC, 2015 WL 3545578, at *17 (D.S.C. June 8, 2015) ("Because it is reasonably possible that the opinion of Plaintiff's treating physician and the evidence of a progression of his impairment might have changed the ALJ's decision, the undersigned recommends a finding that the Appeals Council erred in denying review."); Wise v. Colvin, Case No. 6:13-cv-2712-RMG, 2014 WL 7369514, at *6 (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."). Accordingly, the undersigned recommends a remand with instructions that the ALJ give retrospective consideration to the additional evidence submitted by Plaintiff to the Appeals Council; specifically, the records dated May 8, 2018, August 28, 2018, and September 25, 2018.
C. Remaining Allegations of Error
As mentioned above, Plaintiff also argues that remand is necessary because: (1) the ALJ failed to properly explain how his RFC assessment accounted for Plaintiff's alleged impairments; and (2) the ALJ erred in his analysis of Plaintiff's subjective statements. (Dkt. No. 15.) The undersigned does not address these remaining allegations, as they may be rendered moot on remand. The undersigned notes, however, that the ALJ's consideration of the additional evidence at issue may impact Plaintiff's RFC assessment and the ALJ's analysis of Plaintiff's subjective statements. 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 to the Commissioner for further proceedings as set forth herein.
IT IS SO RECOMMENDED. May 11, 2020 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).