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holding that there was reasonable probability that a physician's questionnaire opining that Plaintiff's impairment and limitations have been present for 10 years would have changed the outcome of the case because it directly contradicted the ALJ's RFC assessment
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C/A No. 2:18-cv-00423-BHH-MGB
03-25-2019
MERLE CLINTON FORNEY, JR., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Merle Clinton Forney, Jr. ("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 October 19, 1974, and was 32 years old on his alleged onset of disability date, November 6, 2006. (R. 12, 27.) Plaintiff claims disability due to, inter alia, bipolar disorder, anxiety, depression, somatoform (conversion) disorder, seizure disorder, lumbar degenerative disc disease, mild thoracic scoliosis, status post inguinal hernia repair with residual nerve pain and bilateral carpal tunnel syndrome. (R. at 14.) Plaintiff has a limited education and does not have past relevant work. (R. at 27.)
Plaintiff filed for DIB on November 6, 2014, and for SSI on January 26, 2015. (R. at 12.) His applications were denied initially and on reconsideration. (R. at 12.) Following a hearing on January 30, 2017, Administrative Law Judge (ALJ) Ann G. Paschall denied Plaintiff's claim on May 11, 2017. (R. 12-29.) 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 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 September 30, 2010.
(2) The claimant has not engaged in substantial gainful activity since November 6, 2006, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: bipolar disorder, anxiety, depression, somatoform (conversion) disorder, seizure disorder, lumbar degenerative disc disease, mild thoracic scoliosis, status post inguinal hernia repair with residual nerve pain and bilateral carpal tunnel syndrome (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 sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he can never climb ladders. He can frequently engage in bilateral handling and fingering. He can have no exposure to dangerous machinery or unprotected heights. He can perform simple, routine, tasks and instructions. He can have contact with the public 10% of the time or less. He can concentrate on, focus and attend to work tasks for at least two hours at a time before needing a normal break of 15 minutes, or once per day, a 30 minute meal break.
(6) The claimant has no past relevant work (20 CFR 404.1565 and 416.965).(R. at 12-28.)
(7) The claimant was born on October 19, 1974 and was 32 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
(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 6, 2006, 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).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5). He must make a prima facie showing of disability by showing that he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Monroe, 826 F.3d at 180. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff contends the Appeals Council failed to properly evaluate new and material evidence in declining to review the ALJ's decision. (Dkt. No. 19 at 21-26.) Plaintiff also contends that the ALJ's decision is not supported by substantial evidence for the following reasons: (1) the ALJ erred in not finding that Plaintiff's right knee medial meniscus tear was a severe impairment; (2) the ALJ did not sufficiently explain why she limited Plaintiff to frequently engaging in bilateral handling and fingering; and (3) the ALJ did not sufficiently explain how the RFC assessment accounted for Plaintiff's issues with attention and concentration. (Id. at 26-35.)
The undersigned considers these arguments below.
A. The Appeals Council Consideration of Evidence
Plaintiff contends that the Appeals Council failed to properly consider new medical evidence submitted by Plaintiff. (Dkt. No. 19 at 21.) Specifically, Plaintiff submitted to the Appeals Council a physician questionnaire from "his treating physician, Dr. Jeffrey Nations, M.D." (Id.)
The Social Security regulations require only that the Appeals Council consider the new and material evidence in deciding whether to grant review, and, if it chooses not to grant review, there is no express requirement that the Appeals Council explain its rationale for denying review. Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir. 2011). When the Appeals Council receives additional evidence and denies review, the issue for the court is whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard. Id. at 704 (citation omitted). "In making this determination, we 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.'" Id. (quoting Wilkins, 953 F.2d at 96). As the Fourth Circuit stated in Meyer, when the newly presented evidence is uncontroverted in the record or all the evidence is "one-sided," a reviewing court has no difficulty determining whether there is substantial evidence to support the Commissioner's decision. Id. at 707. However, when the "other record evidence credited by the ALJ conflicts with the new evidence," there is a need to remand the matter to the fact finder to "reconcile that [new] evidence with the conflicting and supporting evidence in the record," as "[a]ssessing the probative value of the competing evidence is quintessentially the role of the fact finder." Id.
The regulations governing the Appeals Council's consideration of new evidence changed effective January 17, 2017, "to ensure national consistency in the [Social Security Administration's] policy and procedures." Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 FR 90987-01. As part of that regulatory process, the agency implemented a "5-day requirement," namely, "that all evidence, objections, or written statements be submitted at least 5 business days before the date of the [ALJ] hearing." Id. The agency clarified that this "5-day requirement applies only to pre-hearing written statements, not to post-hearing written statements." Id. Although the regulations were effective January 17, 2017, "compliance [was] not required until May 1, 2017." Id.
The revised regulations provide as follows:
(a) The Appeals Council will review a case if—20 C.F.R. §§ 404.970, 416.1470 (2017). "Thus, the new regulations add two requirements to a claimant's burden to have new evidence considered for the first time at the Appeals Council level of review: (1) a requirement that a claimant demonstrate good cause for the failure to submit the evidence in question at least five days prior to the ALJ's decision pursuant to 20 C.F.R. §§ 404.953 and 416.1453; and (2) a requirement to show a reasonable probability of a different outcome." Hawks v. Berryhill, No. 1:17-cv-1021, 2018 WL 6728037, at *4 (M.D.N.C. Dec. 21, 2018), adopted by, No. 1:17-cv-1021, 2019 WL 359999 (M.D.N.C. Jan. 29, 2019).
...
(5) Subject 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.
(b) The Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in § 404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause;
(iv) You 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) You received a hearing level decision on the record and the Appeals Council reviewed your decision.
This interpretation of the regulation in Hawks further underscores the confusion surrounding the good cause requirement; specifically, whether it requires evidence to be submitted five days prior to the ALJ hearing or 5 days prior to the ALJ decision. The analysis of the "5-day requirement" imposed by the agency indicates that all evidence should be submitted five days prior to the ALJ hearing. See Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 FR 90987-01.
As mentioned above, Plaintiff filed for DIB on November 6, 2014, and for SSI on January 26, 2015. (R. at 12.) His applications were denied initially and on reconsideration. (R. at 12.) The ALJ held a hearing on January 30, 2017. (R. at 12.) On March 24, 2017, the Social Security Administration ("agency") notified Plaintiff of the new requirements under 20 C.F.R. § 404.935(b) and 416.1535(b); specifically, the "5-day requirement." (R. at 36-37 ("You must send us or let us know about all evidence at least 5 business days before your hearing.") The agency emphasized that these "rules apply to all hearing requests pending on May 1, 2017." (R. at 36.)
The ALJ issued her decision on May 11, 2017. (R. at 29.) Plaintiff requested review with the Appeals Council on June 2, 2017. (R. at 158.) On June 22, 2017, the Appeals Council issued a letter acknowledging Plaintiff's request and providing the following instructions:
You may send us a statement about the facts and the law in this case or additional evidence. We consider additional evidence that you show that is new, material, and relates to the period on or before the date of the hearing decision. You must also show there is a reasonable probability that the additional evidence would change the outcome of the decision. You must show good cause for why you missed informing us about or submitting it earlier.(R. at 7.)
Based on the record, it appears Plaintiff submitted the physician questionnaire at issue to the Appeals Council when it became available—the 5-page questionnaire is dated July 14, 2017, (Dkt. No. 19-1.) In the questionnaire, Dr. Nations writes that he has been treating Plaintiff for one year and that he sees Plaintiff every three months. (Id.) He opines as to Plaintiff's limitations based on Plaintiff's "low back pain, neuropathy, bipolar [disorder], and seizures." (Id.) Dr. Nations opines, inter alia, that: (1) Plaintiff is "incapable of even 'low stress' jobs"; (2) Plaintiff's "pain or other symptoms" would "constantly" interfere with his "attention and concentration needed to perform even simple work tasks"; and (3) Plaintiff has "significant limitations with reaching, handling or fingering." (Id.) Dr. Nations states that these impairments and limitations have been present for the past ten years. (Id.)
The Appeals Council issued its denial of Plaintiff's appeal on January 10, 2018, stating:
You submitted a Physician Questionnaire from Jeffrey Nations, MD, dated July 14, 2017 (5 pages). We find that you do not have good cause for why you missed informing us about or submitting this evidence earlier. We did not consider and exhibit this evidence.(R. at 2.)
Here, Plaintiff argues that the Appeals Council erred in applying the "good cause" requirement under the revised version of 20 C.F.R. § 404.970. (Dkt. No. 19 at 23-24.) Plaintiff asserts that because his "action was pending—and the ALJ hearing occurred—well before the new rule became effective," the prior version of the regulation should have applied. (Id. at 24.) According to Plaintiff, the Appeals Council should have considered the physician questionnaire because it is new and material evidence that bears on the period on or before the ALJ's decision. (Id. at 22.) Plaintiff's argument raises a few issues, including: (1) when does the new version of 20 C.F.R. § 404.970 apply to Appeals Council review of a claimant's claims; and (2) even if the new version of the regulation applies, is the good cause requirement appropriately waived in certain circumstances?
Admittedly, the case law concerning the implementation of the new version of 20 C.F.R. § 404.970 is difficult to parse. Another court in this district was recently asked to determine "the issue of what date controls what regulation applies on Appeals Council review." Cope v. Berryhill, No. 4:17-cv-02806-TER, 2019 WL 642914, at *7 (D.S.C. Feb. 15, 2019). In Cope, the ALJ hearing, the issuance of the ALJ decision, and the claimant's request for review with the Appeals Council all occurred in 2016, prior to the date the new version of 20 C.F.R. § 404.970 became effective. 2019 WL 642914, at *1. The Appeals Council issued its decision denying review on August 16, 2017, approximately three months after compliance with the new version of the regulation was required. Id. Notably, in the interim, on March 24, 2017, the Appeals Council issued a letter stating that "on May 1, 2017, the Appeals Council would be changing the rules it applied when considering whether to review [the claimant's] case." Id. at *3. The letter stated in part,
The Appeals Council receives additional evidence that you show is new, material, and relates to the period on or before the date of the hearing decision. You must show that there is a reasonable probability that the additional evidence would change the outcome of the decision. You must also show "good cause" for why you missed informing us about or submitting it at least 5 business days before the date of your hearing. We explain "good cause" in the next section. . . . Because your case was pending at the Appeals Council before our rule about when to give us evidence became effective, we will find that you showed good cause for not submitting additional evidence earlier. [] You must still show that the additional evidence is also new and material, relates to the period at issue, and shows a reasonable probability of changing the outcome of the hearing decision.Id. at *4 (emphasis added).
In Cope, the court ultimately found that it did not have to decide the issue of the controlling date because it found "the additional evidence here is not material," meaning it would not survive review under either version of the regulation. Id. at *7. Notably, the Appeals Council in Cope waived the good cause requirement, as stated above, and that issue was therefore not before the court.
It appears that at least one court in this circuit has found that the appropriate way to decide what version of the regulation applies is based on the date the Appeals Council issues its decision. Specifically, in Collins v. Berryhill, the court found, in a footnote, that because "the Appeals Council denied Plaintiff's request for review on July 20, 2017, after the new regulation took effect[,] . . . the new version of the regulation applies to Plaintiff's claims." No. 3:17-cv-633 (MHL), 2018 WL 4232888, at *12 n.4 (E.D. Va. Aug. 20, 2018), adopted by, 2018 WL 4224854 (E.D. Va. Sept. 5, 2018). Notably, in Collins, the court did "not reach the question of whether Plaintiff showed good cause for his delay in submitting" the new evidence at issue. Id. Thus, the court did not have to consider the implications of applying a good cause requirement where the ALJ hearing occurred prior to the date the new version of the regulations went into effect. Id. at *1 (noting the ALJ hearing occurred on March 15, 2016). Further, it appears that in Collins, the evidence at issue was written "well before the [ALJ] hearing." Id. at *12.
Even if the new version of the regulation applies here, it is difficult to see how Plaintiff could have complied with the good cause requirement. It appears Plaintiff received two communications about the new version of the regulation prior to the issuance of the Appeals Council decision. As discussed above, Plaintiff first received a letter on March 24, 2017, after the ALJ hearing occurred, advising him that for "all hearing requests pending on May 1, 2017, . . . . [the claimant] must send us or let us know about all evidence at least 5 business days before your hearing." (R. at 36, 37.) On June 22, 2017, after Plaintiff filed his request for review with Appeals Council, he received a letter stating in part that, with respect to additional evidence, "You must show good cause for why you missed informing us about or submitting it earlier." (R. at 7.) The letter provided no explanation as to what "good cause" meant and, upon review of the new version of the regulation, it is unclear whether this refers to good cause for failing to comply with the aforementioned "5-day requirement." It appears that the Appeals Council has interpreted the good cause requirement in this manner in other instances. See e.g., Cope, 2019 WL 642914, at *4; (quoting letter from Appeals Council to the claimant: "You must also show "good cause" for why you missed informing us about or submitting it at least 5 business days before the date of your hearing."); Hawks, 2018 WL 6728037, at *5 ("Appeals Council expressly recognized that Plaintiff could not retroactively comply with the new requirement that, absent good cause, claimants must submit evidence at least five days before the ALJ's hearing, and waived the requirement that Plaintiff demonstrate good cause").
Surely, if the explanation of "good cause" refers to the failure to comply with the "5-day requirement," then compliance should be waived in this instance because: 1) the ALJ hearing occurred before the new version of the regulation became effective and 2) the evidence was created after the ALJ hearing occurred. Indeed, waiver of the good cause requirement in this instance would appear to align with the Appeals Council treatment of similar requests for review. See, e.g., Cope, 2019 WL 642914, at *4; Hawks, 2018 WL 6728037, at *5; Keene v. Comm'r of Soc. Sec., 2019 WL 317441, at *3 (M.D. Fla. Jan. 7, 2019), adopted by, 2019 WL 314108 (M.D. Fla. Jan. 24, 2019) ("Here, the Appeals Council 'expressly advised' Plaintiff it would find good cause for the untimely submission of any additional evidence because her 'case was pending at the Appeals Council before [its] rule about when to give [it] evidence became effective[.]'").
In sum, for the foregoing reasons, the undersigned finds that the Appeals Council erred in declining to consider the physician questionnaire submitted by Plaintiff because he "did not have good cause for why [he] missed informing [Appeals Council] about or submitting this evidence earlier." (R. at 2.) Even if the new version of the regulation was appropriately applied here, the Appeals Council should have waived the good cause requirement.
Here, the undersigned acknowledges Sterling v. Berryhill, in which the undersigned found that the claimant could not establish good cause under the new version of the regulation. No. 2:17-cv-02556-DCN-MGB; Dkt. No. 15 at 10, (D.S.C. Jan. 15, 2019), adopted by, Dkt. No. 26 (D.S.C. March 21, 2019). In Sterling, the claimant submitted a letter from a treating physician to the Appeals Council six months after the letter was authored. The claimant provided no explanation for the delay. Here, it appears Plaintiff submitted Dr. Nations' physician questionnaire to the Appeals Council as soon as it became available.
In addition, the undersigned recommends that the evidence at issue is new, material, related to the relevant period, and there is a reasonable probability that this evidence would have changed the outcome. See Ledbetter v. Astrue, 8:10-cv-00195-JDA, 2011 WL 1335840, at *13, n.7 (D.S.C. Apr. 7, 2011) ("'Whether the evidence is new, material and related to the relevant period is a question of law reviewed de novo.'" (quoting Box v. Shalala, 52 F.3d 168, 171-72 (8th Cir. 1995))). Here, the physician questionnaire from Plaintiff's treating physician, Dr. Nations, is new evidence which relates to the time period prior to the ALJ decision. Specifically, Plaintiff claims disability from November 6, 2006 through the present date. The physician questionnaire opines on Plaintiff's limitations and impairments that have been present for "10 years"—the questionnaire is dated July 14, 2017. (Dkt. No. 19-1.) In the questionnaire, Dr. Nations writes that he has been treating Plaintiff for one year and that he sees Plaintiff every three months. (Id.) As mentioned above, Dr. Nations opines as to Plaintiff's limitations based on Plaintiff's "low back pain, neuropathy, bipolar [disorder], [] seizures" and "depression." (Dkt. No. 19-1.) These impairments are at issue in Plaintiff's claim for disability. (R. at 14.) See Coleman v. Berryhill, No. 6:17-cv-02613-TMC, 2019 WL 850902, at *4 (D.S.C. Feb. 22, 2019) (finding new opinion evidence "relates to the period prior to the ALJ decision" where the opinion reports on "symptoms and limitations that have been present" since shortly after Plaintiff applied for disability benefits).
Further, this additional evidence is material and there is a reasonable probability that it would have changed the outcome. In the questionnaire, Dr. Nations opines that Plaintiff is limited in ways that directly contradict the ALJ's RFC assessment. For example, Dr. Nations opines that Plaintiff's "pain or other symptoms" would "constantly" interfere with his "attention and concentration needed to perform even simple work tasks" and that Plaintiff has "significant limitations with reaching, handling or fingering." (Dkt. No. 19-1.) The ALJ found that Plaintiff could "frequently engage in bilateral handling and fingering" and "can concentrate on, focus and attend to work tasks for at least two hours at a time before needing a normal break of 15 minutes, or once per day, a 30 minute meal break." (R. at 22.)
While there are other medical opinions from a treating physician in the record, the opinion from Dr. Nations covers an additional time period. Specifically, neurologist Harish Patel, M.D., treated Plaintiff periodically from 2007 through 2014. (R. 301, 430, 503.) In November 2013, he opined that Plaintiff "is totally disabled" and noted that his "[a]ttention is poor." (R. at 431, 433.) Thus, Dr. Nations' opinion provides support to the opinion rendered by Dr. Patel and provides a treating physician's opinion as to Plaintiff's limitations after Plaintiff's treatment with Dr. Patel ended. Further, at the hearing, the ALJ expressly noted the lack "of medical evidence" and that there was not as much evidence as the ALJ "would like." (R. at 58.) The ALJ arranged for an orthopedic exam, X-rays of Plaintiff's low back and both of his knees, and a psychological evaluation. (R. at 58.) Dr. Nations' physician questionnaire provides another item of evidence that the ALJ indicated would be helpful. (R. at 58.)
Thus, with the good cause requirement appropriately waived, the Appeals Council should have considered this additional evidence under the new version of the regulation. Because it was an error of law to not consider and exhibit such evidence, the undersigned finds it proper to treat the opinion as if it had been made a part of the record and consider it on review. See Coleman, 2019 WL 850902, at *5 (noting that the Appeals Council did not make the additional evidence part of the record, but finding sentence four remand appropriate regardless "because it was an error of law to not consider and exhibit such evidence"); Wise v. Colvin, No. 6:13-cv-2712-RMG, 2014 WL 7369514, at *7 (D.S.C. Dec. 29, 2014) (finding it "completely proper" to consider the additional evidence on remand under sentence four when the Appeals Council erred in not making it part of the record). However, because no factfinder has considered or weighed Dr. Nations' opinion in light of the other evidence in the record, the undersigned cannot determine if substantial evidence supports the decision of the Commissioner. Therefore, the undersigned recommends that reversal of the Commissioner's decision and remand under sentence four is appropriate. See, e.g., Rouse v. Berryhill, No. 6:17-cv-1496-AMQ-KFM, 2018 WL 3118356, at *11 (D.S.C. June 4, 2018), adopted by, 2018 WL 3109861 (D.S.C. June 22, 2018) (finding remand appropriate under sentence four where "it was error by the Appeals Council not to consider, weigh, and reconcile" new opinion evidence from the claimant's treating physician); Pennock v. Colvin, Civ. A. No. 6:15-cv-1490-RMG, 2016 WL 3457163, at *1 (D.S.C. June 23, 2016) (finding that "the failure of the Appeals Council or any other fact finder to weigh the new and material evidence from Plaintiff's treating and examining physicians and 'to reconcile that new and material evidence with conflicting and supporting evidence in the record' requires 'remand . . . for further fact finding'" pursuant to Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011)); Arakas v. Colvin, No. 4:14-cv-457-TER, 2015 WL 5602577, at *6-7 (D.S.C. Sept. 23, 2015) (reversing and remanding, stating, "Since the evidence in this case is not 'one-sided' and the newly offered opinion, presented for the first time to the Appeals Council, is in conflict with other evidence relied upon by the ALJ, 'no fact finder has made any findings as to the treating physician's opinion or attempted to reconcile that evidence with the conflicting and supporting evidence in the record.'" (quoting Meyer, 662 F.3d at 707)); Wise, 2014 WL 7369514, at *6 ("This greater evidentiary support contained in the June 2013 opinion report clearly constitutes 'new and material' evidence that under Meyer should have been considered prior to a final decision by the Commissioner.").
Because the additional evidence should have warranted review by the Appeals Council under the new version of the regulation, the Court need not decide the issue of whether the prior version of the regulation was controlling here.
Alternatively, a sentence six remand would also be appropriate. 42 U.S.C. § 405(g) (stating that 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 failure to incorporate such evidence into the record in a prior proceeding"). The opinion was not in existence at the time the ALJ decided Plaintiff's case, and it appears that counsel timely submitted it to the Appeals Council for review. These facts, coupled with the Appeals Council's error in not considering or exhibiting Dr. Nations' opinion constitutes "good cause" for why the opinion is not in the record at this time. See Wise, 2014 WL 7369514, at *7 (determining that the Appeals Council's error in not making a document a part of the record was good cause for the absence of the document in the record). Additionally, as discussed above, Plaintiff's opinion is both new and material.
B. Remaining Allegations of Error
The undersigned does not address Plaintiff's remaining allegations, as they may be rendered moot on remand. As discussed above, the physician questionnaire opines on limitations that are at issue in Plaintiff's other allegations of error. Thus, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegations of error raised by Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE March 25, 2019 Charleston, South Carolina