Opinion
Civil Action No. 8:17-cv-2968-BHH-JDA
11-27-2018
Lisa Foster, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636. Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In November 2013, Plaintiff protectively filed an application for DIB, alleging on onset of disability date of November 13, 2013. [R. 164-65, 190.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 93-100, 101-10.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and, on February 18, 2016, ALJ James McHenry, III, conducted a de novo hearing on Plaintiff's claims. [R. 40-92.]
The ALJ issued a decision on September 15, 2016, finding Plaintiff not disabled under the Social Security Act ("the Act") at any time from November 13, 2013, through the date of the decision. [R. 14-34.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2019, and had not engaged in substantial gainful activity during the period from her alleged onset date of November 13, 2013. [R. 16, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: status post left foot medializing calcaneal osteotomy, tibial tendon reconstruction, flexor digitor transfer to naviculum, debridement of posterior tibial tendon, and placement of internal brace; right posterior tibial tendon dysfunction; obesity; and, migraine headaches. [R. 17, Finding 3.] 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 an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 19, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ determined Plaintiff had the following residual functional capacity ("RFC"):
[C]laimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with the following additional limitations. She requires a hand-held assistive device (such as a cane) to ambulate over narrow, slippery or erratically moving surfaces, or for ascending or descending slopes, but the hand-held assistive device would not be necessary for standing; she can occasionally climb ramps and
stairs; she cannot climb ladders, ropes, or scaffolds; she can occasionally balance, stoop, kneel, crouch, and crawl; she can have no exposure to unprotected heights and moving mechanical part; she cannot use foot controls bilaterally; she would be off task a maximum of ten percent of the workday; and, she would miss a maximum of one day of work per month.[R. 20, Finding 5.] At Step 4, the ALJ determined that Plaintiff was capable of performing her past relevant work as a production assembler, a bench assembler, and a bearing ring assembler, noting that such work does not require the performance of work-related activities precluded by Plaintiff's RFC. [R. 31, Finding 6.] Consequently, the ALJ determined that Plaintiff had not been under a disability as defined by the Act from November 13, 2013, through the date of the decision. [R. 34, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on November 2, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff's sole argument is that the Appeals Council erred in refusing to consider and exhibit new evidence submitted by Plaintiff and finding that the new evidence did not show a reasonable probability that it would change the outcome of the ALJ's decision. [Doc. 13 at 21.] Specifically, Plaintiff argues that, pursuant to Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011), the case must be remanded for further consideration. [Id.] Plaintiff contends that she submitted new evidence—a statement from her treating physician, Dr. Henderson—to the Appeals Council, which was new and material and might have affected the fact-finder's decision. [Id. at 22-23]. According to Plaintiff, this new evidence from Dr. Henderson would have made a difference and that the case should therefore be remanded for further fact finding in light of Meyer. [Id. at 24.]
The Commissioner, on the other hand, contends that the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 14.] With respect to Plaintiff's argument concerning new evidence, the Commissioner argues Plaintiff has failed to show that the opinion letter from Dr. Henderson is "new" [id. at 9], that the evidence is material and that there is a reasonable probability that the additional evidence would change the outcome of the decision [id. at 10], or that good cause existed for Plaintiff's failure to submit the evidence earlier [id. at 11]. For these reasons, according to the Commissioner, the ALJ's decision should be affirmed because the Appeals Council properly considered the new evidence, but rejected it as it did not show a reasonable probability that it would change the outcome of the decision. [Id. at 8, 12.]
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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("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) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); 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 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
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) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), 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. § 404.1520. 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. § 404.1520(a); 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. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(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. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. 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). 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).
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. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
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. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
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 Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). 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); see also 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. § 404.1569a; 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. § 404.1569a(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. § 404.1569a(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. § 404.1527(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. § 404.1527(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).
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. § 404.1527(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. § 404.1527(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. § 404.1517; 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. § 404.1517. 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." SSR 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. §§ 404.1529(c)(1)-(c)(2), 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 F. App'x 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. §§ 404.1528, 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
Appeals Council's Consideration of New Evidence
Plaintiff argues that remand is necessary in light of new evidence submitted to the Appeals Council for consideration. [Doc. 13 at 23.] Specifically, Plaintiff argues the Appeals Council erred in failing to consider the new evidence, comprised of a single-page, one-paragraph statement from Dr. Henderson, dated November 17, 2016. [Id. at 16-17; R. 9.] The Commissioner contends that the statement from Dr. Henderson does not constitute "new" or "material" evidence and that the Appeals Council properly found the statement did not create a reasonable probability that it would change the outcome of the decision. [Doc. 14 at 12.]
New Evidence Submitted
The Appeals Council received the following additional evidence, which was made a part of the record:
Exhibit 13B: Request for Review from Paul T. McChesney, received November 4, 2016 (2 pages).[R. 6.] Upon consideration, the Appeals Council concluded that it found no reason under the rules to change the ALJ's decision, thus making the ALJ's decision the final decision of the Commissioner. [R. 1.] With regard to Plaintiff's new evidence, the Appeals Council acknowledged receipt of the evidence, but noted:
Exhibit 20E: Representative brief from Mark Dunning, dated December 21, 2016 (3 pages).
We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence.[R. 2.] The evidence in question, a statement signed by Dr. Michael Henderson, and dated November 17, 2016, opined as follows, in verbatim:
The first time I saw Lisa Foster [ ] was on 11/5/13. The last time I saw her was on 11/10/15. I was treating her for her foot. She has posterior tibial tendon dysfunction bilaterally. She has had a full gambit of non surgical treatment and then elected to have a surgical reconstruction. She actually had the problem on both sides, but it was more painful for her on the left so she elected to have surgery on the left only. This was not the type of problem that is fully correctable with surgery. You have transferred a tendon, but it cannot fully replace what was there before. The operation was successful in that several months post op she said she would do it again, so it did help some. We put her in a brace on the opposite side, and the brace was working pretty well. At the last point I saw her she had decided not to have any surgery on the right side for the time being. She said the brace was enough for now. The brace was keeping her reasonably comfortable, and she did not want to go through a major surgery again at that time. Although she was not having enough symptoms to justify another major operation at that time, it is still the case that she would have pain in her feet on standing or walking for any length of time. She would still be limited to no more than sedentary work even if she had another surgery on the right side. This is true because, again, this surgery does not fully correct the problem.
She has been limited to this extent at least throughout the time period I have treated her and it is most probable she would still be limited to this extent.[R. 9. ("November 2016 Statement").]
Discussion
If a claimant is dissatisfied with an ALJ's decision regarding her 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) (citing 20 C.F.R. § 404.967). 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 were not supported by substantial evidence; or if the case concerns a broad policy or procedural issue that may affect the general public interest. 20 C.F.R. § 404.970. A claimant who has sought review from the Appeals Council may submit evidence to the Appeals Council as part of the process for requesting review of an adverse ALJ decision. 20 C.F.R. § 404.968; see also Meyer, 662 F.3d at 705 ("The regulations also specifically permit claimants to submit additional evidence, not before the ALJ, when requesting review by the Appeals Council."). The Act's administrative scheme, found in 20 C.F.R. § 404.970(b), governs the circumstances under which the Appeals Council is to review an ALJ's decision and, with regard to new evidence, provides: "The Appeals Council shall evaluate the entire record including . . . new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970(b); see also 20 C.F.R. § 404.976 ("The Appeals Council will consider all the evidence in the administrative law judge hearing record as well as any new and material evidence submitted to it which relates to the period on or before the date of the administrative law judge hearing decision."). Considering these regulations, the Court of Appeals for the Fourth Circuit has stated: "[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 Appeals Council must consider evidence submitted with the request for review in deciding whether to grant review if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision." Id. at 95-96 (citation omitted). In order to be "new" evidence, the evidence must not be "duplicative or cumulative;" and in order to be "material," there must be a "reasonable possibility that it would have changed the outcome." Id. at 96; see also Meyer, 662 F.3d at 705 ("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.'") (citation ommitted). If the new and material evidence relates to the period on or before the date of the ALJ's hearing decision, the Appeals Council should evaluate it as part of the entire record. 20 C.F.R. § 404.970(b) ("If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision.").
The proper manner and procedure for the handling of new evidence submitted to an Appeals Council was discussed extensively by the Fourth Circuit in Meyer. 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. See id. (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir.1996)). Thus, courts should affirm an ALJ's denial of benefits after reviewing new evidence presented to the Appeals Council where, even with this new evidence, substantial evidence support 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.
In this case, Plaintiff filed her application for disability in November 2013, the ALJ held a hearing on February 18, 2016, and the ALJ issued his decision on September 15, 2016. Plaintiff then requested Appeals Council review and submitted new evidence to the Appeals Council almost two months after the ALJ's decision. [R. 162-63.] The new evidence consisted of a single-page, one-paragraph statement, dated November 17, 2016, from Plaintiff's treating physician, Dr. Henderson. [R. 9.] Upon review, the Appeals Council concluded that the November 2016 statement was not material, explaining that the "evidence does not show a reasonable probability that it would change the outcome of the decision," and, accordingly, declined to consider and exhibit the evidence. [R. 2.] This Court finds, in agreement with the decision of the Appeals Council, that the evidence does not require remand.
The Court finds the additional evidence is duplicative of the evidence that was before the ALJ at the time of the hearing and is not new, material evidence that would have changed the outcome of Plaintiff's case. The ALJ conducted a detailed evaluation of Dr. Henderson's treatment notes and records and provided an in-depth analysis of Dr. Henderson's opinions concerning Plaintiff. Importantly, after extensively considering the medical records and treatment notes from Dr. Henderson, the ALJ noted as follows:
In July 2014, Dr. Michael Henderson, M.D., opined that the claimant could not engage in anything more than sedentary work due to her tibial tendon dysfunction as of Nov 13, 2013. (Exhibit 6F). In a series of forms from December 2013 to June 2014 for purposes of claimant's private disability insurance through Metropolitan Life Insurance Company (MetLife), Dr. Henderson stated that he though the claimant was "unable to work" and was "Totally Disabled" through an estimated date of July 15, 2014 (Exhibit 16F). Dr. Henderson is a treating source and an orthopedic specialist. He began treating the claimant in November 2013 (Exhibit 2f) and had treated her for approxmiately eight or nine months at the time he rendered his opinions; he also performed surgery on the claimant's left foot in January 2014. His opinions, however, are both conclusory and snapshots approximately six months after the surgery and before the claimant completed her recovery. Dr. Henderson has continued to treat the claimant into late 2015, and his subsequent treatment notes do not relect debilitating limitations consistent with these initial opinions (compare Exhibits 8F, 10F, & 18F). Indeed, he later noted that the claimant can walk approximately 200 feet to her mailbox and back several times a day (Exhibit 8F). In November 2015, he noted that the claimant had "[r]easonable excursion of her left foot side to side" and "pretty good resisted strength against manual pressure" (Exhibit 18F). Although he described the claimant's gait as antalgic, he also noted that she denied "headaches, weakness, tremors, numbness, disturbances in coordination, tinging, visual disturbances, poor balance, falling down, seizures, memory loss" (Id.). Other treatment records also indicate the claimant is not debilitated as Dr. Henderson opined; for example, in February 2016, the claimant's gait was normal, she had normal strength in all extremities, and no abnormal movements (Exhibit 19F). Dr. Henderson's statements on the MetLife forms were for a different program with different considerations and different definitions than those used by the Social Security Administration; moreover, his statement that the claimant is totally disabled is on an issue reserved to the Commissioner and warrants no special weight despite coming from a treating source (20 CFR 404.1527(d)(2)); SSR 96-5p). Dr. Henderson is also treating the claimant on a six-month follow-up basis which does not suggest an acute level of severity consistent with the debilitating nature of his opinions (Exhibit 18F). Moreover, he has specifically noted that he is seeing the claimant for her disability claim and would see her sooner for "documentation"
related to that claim if necessary, which suggests that medical need is not the sole factor driving the nature of the claimant's treatment with Dr. Henderson (Exhibit 10F/4). Again, Dr. Henderson is a treating source and a specialist, and his opinions have not been disregarded; however, in context, they also evince significant supportability concerns and, thus, warrant only limited weight (Exhibits 6F & 16F).[R. 27.] Plaintiff has failed to articulate any reason why the November 2016 statement from Dr. Henderson would evince a different result, particularly in light of the ALJ's consideration of Dr. Henderson's opinions presented in the record before the ALJ. Indeed, the only reason advanced by Plaintiff as to why the new evidence from Dr. Henderson would have made a difference is that Dr. Henderson opined in the November 2016 statement that, even with ongoing treatment and surgery, Plaintiff would still continue to have pain and would still be limited to no more than sedentary work and that Plaintiff "has been limited to this extent at least throughout the time period I have treated her and it is most probable she would still be limited to this extent." [R. 9.] Plaintiff contends that this "opinion of continued limitations more than one year later, from the treating specialist, consistent with the opinions that the ALJ rejected could certainly affect the outcome of the ALJ's decision as there is now direct contradictory evidence from the ALJ's decision." [Doc. 13 at 23.] Plaintiff points to the portion of the ALJ's decision stating:
Overall, the opinion evidence is generally of limited probative value, and there is no opinion issued more than one year after the claimant's alleged onset date or after her foot surgery, other than Dr. Gheorghiu's opinion in February 2016 which is not well supported and largely undermined by his own treatment notes a week later.[Id. (quoting R. 29).] However, the Court finds Plaintiff's argument unavailing. Dr. Henderson tendered his November 2016 statement more than a year after his last visit with Plaintiff on November 10, 2015. It is unclear why the November 2016 statement, without any intervening treatment or evaluation of Plaintiff by Dr. Henderson, constitutes "direct contradictory evidence from the ALJ's decision" [id.], or presents any new or material evidence in any form to supplement the opinions and treatment notes of Dr. Henderson already contained in the record. Further, and significantly, the ALJ considered Dr. Henderson's opinions that Plaintiff was "'unable to work,'" was "'Totally Disabled,'" and "could not engage in anything more than sedentary work." [R. 27.] Likewise, when discussing record documents concerning Plaintiff's short-term disability benefits claim with MetLife, the ALJ stated the following:
. . . MetLife noted that the claimant's left foot had not yet fully healed, based on the records of Dr. Henderson, and that the claimant's potential to return to work was "unknown." (Id./38). The MetLife records are snapshots of the claimant's functioning over a seven-month period, and they largely mirror the notes of Dr. Henderson; however, they do not provide a full longitudinal picture of at least one year after the claimant's alleged onset date. Indeed, as discussed above, just as Dr. Henderson's opinions during this period are not fully consistent with the claimant's subsequent treatment history, there is no basis to expect MetLife's determinations to be probative or be consistent with subsequent treatment evidence, which generally shows an improvement in the claimant's functioning after surgery.[R. 28.] The ALJ found that Dr. Henderson's opinions were "not fully consistent with the claimant's subsequent treatment history." [Id.] The November 2016 statement simply reiterates Dr. Henderson's treatment notes and opinions already contained in the record, which the ALJ considered but accorded only limited weight. [R. 27.] Simply put, the November 2016 statement is duplicative and cumulative of the evidence already before the ALJ and is not material because it would not have changed the outcome. As such, remand is not required because the Appeals Council properly declined to consider the evidence.
In sum, Plaintiff's new evidence submitted to the Appeals Council with her request for review was not new or material. See Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991) (en banc) (noting evidence is new "if it is not duplicative or cumulative" and evidence is material "if there is a reasonable possibility that the new evidence would have changed the outcome"). As noted, the duty of the Appeals Council to review additional evidence is conditioned on such evidence being "new and material," which means that it is "not duplicative or cumulative" and "there is a reasonable possibility that the new evidence would have changed the outcome." Wilkins, 953 F.2d at 95-96. Meyer does not require an automatic remand for unreviewed material evidence, but instead finds that remand is appropriate when the Court cannot determine, from review of the record as a whole, if substantial evidence supports the denial of Plaintiff's application for benefits. Meyer, 662 F.3d. at 702. Here, substantial evidence supports the denial of Plaintiff's application for benefits, and the ALJ's decision should therefore be affirmed.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 27, 2018
Greenville, South Carolina