Opinion
C/A No. 2:17-cv-03029-RMG-MGB
10-10-2018
LORENZO JETER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Lorenzo Jeter ("Plaintiff"), brought this action pursuant to Section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for 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 52 years old on his alleged disability onset date of July 3, 2013. (R. at 28, 37.) Plaintiff claims disability due to nerve damage and headaches as well as pain in his neck, back, knee, legs, ankles, and hands. (R. at 205.) Plaintiff has a limited education and has past relevant work as an order picker and a log chipper operator. (Dkt. No. 13 at 4; R. at 36-37.)
Plaintiff filed an application for SSI on February 26, 2014, alleging a disability onset date of January 25, 2007. (R. at 28.) Because Plaintiff had previously applied for disability benefits, and that application was denied in a decision affirmed by the Appeals Council on July 2, 2013, the ALJ limited its period of review to begin on July 3, 2013. (R. at 28.) Plaintiff's February 26, 2014, application was denied initially and on reconsideration. (R. at 28.) After a hearing before an Administrative Law Judge ("ALJ") on April 19, 2016, the ALJ issued a decision on May 26, 2016, in which the ALJ found that Plaintiff was not disabled. (R. at 28-39.) 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 has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since February 26, 2014, the application date (20 CFR 416.971 et seq.)
(2) The claimant has the following severe impairments: degenerative disc disease, scoliosis, and arthralgias of the knee and hip (20 CFR 416.920(c)).
(3) 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 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except he could never climb ladders, ropes, or scaffolds. He could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. He could frequently reach overhead on the right side and he must avoid concentrated exposure to hazards.
(5) The claimant is unable to perform any past relevant work (20 CFR 416.965).
(6) The claimant was born on December 3, 1961 and was 52 years old, which is defined as a younger individual age 18-49, on the date the application was filed. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 416.963).
(7) The claimant has a limited education and is able to communicate in English (20 CFR 416.964).(R. at 28-38.)
(8) Transferability of job skills is not material to the determination of disability because the Medical-Vocational Rules as a framework supports 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).
(9) 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 416.969, and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since February 26, 2014, the date the application was filed (20 CFR 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 Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
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 Grant, 699 F.2d at 191. 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. See id. at 191-92.
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 Richardson v. Perales, 402 U.S. 389 (1971); 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); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
DISCUSSION
Plaintiff contends that the ALJ's decision should be remanded for consideration of the additional evidence he submitted to the Appeals Council. (Dkt. No. 13 at 13-19.) Specifically, Plaintiff contends that remand is appropriate so that the ALJ can consider the results of a lumbar MRI taken on July 14, 2016, showing a "disc desiccation . . . at L3-4 and L4-5" and a "right paracentral broad based shallow protrusion at L4-5, contacting the right L5 root." (Id. at 13; R. at 14-19.) Plaintiff further contends that on remand, the ALJ should consider an opinion from Plaintiff's treating physician, Dr. Jorge Garcia, issued on July 25, 2016, in which he states:
I have treated Lorenzo Jeter since 10/13. I last saw him in July 2016. A 2/14 neck x-ray and a 1/15 neck MRI show he has arthritis in his neck with nerve root compression that would affect his ability to use his arms. He has localized paresthesias mostly on the left side. His clinical examination indicates he has 3/5 strength and moderate sensory loss on the left side. He has had this problem since we first saw him. Imaging of his lower back shows he has scoliosis, which is [most likely] congenital. It is affecting his spine all the way from the lower thoracic through the lumbar spine. It is causing muscle spasms in his thoracic and lumbar spine. He has consistently presented with muscle spasm in his lower back
and thoracic spine. That is why he takes muscle relaxers. He cannot afford to see a specialist, [which has been recommended from the beginning.] [It is my belief, unfortunately,] Mr. Lorenzo would be limited to no more than sedentary work due to his [chronic] back pain, but even at a sedentary job, he would not be able to use his bilateral arms any more than occasionally without aggravating his neck pain. He should not lift any amount of weight frequently. He has had these limitations throughout the period that I have treated him.(Dkt. No. 13-1 at 5) (brackets refer to places where the words were handwritten rather than typed).
The Social Security regulations provide, inter alia, that Appeals Council will review a case if, "[s]ubject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. § 404.970(a)(5). "Evidence is new . . . if it is not duplicative or cumulative," and "[e]vidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Wilkins v. Sec'y, 953 F.2d 93, 96 (4th Cir. 1991) (citations omitted).
Because the Appeals Council issued its decision denying review on September 28, 2017, the most recent version of 20 C.F.R. § 404.970 is applicable. (R. at 1-6.)
In its decision, the Appeals Council listed the additional evidence submitted to it by the Plaintiff, including the MRI results dated July 14, 2016. (R. at 2.) Referring specifically to the July 14, 2016 medical records, the Appeals Council found "[t]his additional evidence does not relate to the period at issue," and "[t]herefore, it does not affect the decision about whether [Plaintiff was] disabled beginning on or before May 26, 2016." (R. at 2.) The Appeals Council did not mention Dr. Garcia's opinion when listing the additional evidence submitted by Plaintiff. (R. at 2.)
Here, Plaintiff argues that his MRI results "could have changed the outcome of the ALJ's decision" and remand is therefore appropriate. (Dkt. No. 13 at 14.) Plaintiff recognizes that the MRI was taken after the ALJ rendered her decision. He asserts that because the MRI results "support [Plaintiff's] complaints of chronic back pain and radicular symptoms," consideration of this evidence is appropriate. (Id. at 16.) Plaintiff further argues that Dr. Garcia's submitted opinion "is critical to the evaluation of this case." (Id. at 18.) Plaintiff asserts that there were no treating opinions in the record considered by the ALJ, and, therefore, "an opinion from a long-term treating provider explaining that [Plaintiff] had limitations supported by imaging and clinical observations" would affect the outcome of the ALJ's decision. (Id.)
In response, the Commissioner asserts that the July 2016 MRI "simply provided a diagnosis," and that such evidence does not, by itself, "establish entitlement to benefits under the Act." (Dkt. No. 14 at 8.) As a result, the Commissioner argues, this evidence would not have changed the ALJ's decision and, therefore, cannot be considered material. (Id.) With respect to Dr. Garcia's July 2016 opinion, the Commissioner argues that this opinion is not material because: (1) the opinion "contradicts" reports from Dr. Garcia given in 2015; (2) the opinion "is inconsistent with Plaintiff's admissions, the observations of Dr. Kanwisher, and Plaintiff's level of functioning"; (3) Dr. Garcia is a family physician and "not qualified to issue an opinion about function"; and (4) Dr. Garcia is not responsible for determining Plaintiff's RFC." (Id. at 9-10.)
"[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).
Here, the evidence of the July 2016 MRI and Dr. Garcia's July 2016 statement "permits an inference of linkage" to the relevant period, especially given Dr. Garcia's opinion that Plaintiff's back pain is "chronic." (Dkt. No. 13-1 at 5); see Lambert v. Colvin, Case No. 215-cv-02101-CMC-MGB, 2016 WL 4238651, at *8 (D.S.C. July 22, 2016), adopted by, 2016 WL 4196664 (D.S.C. Aug. 9, 2016) (finding remand appropriate for consideration of the additional evidence of "the EMG and nerve conduction study" submitted by the claimant; noting there was an "'inference of linkage' to the relevant period, especially in light of the finding of 'chronic' neuropathy and radiculopathy"). This finding of a "linkage" is further supported by the ALJ's analysis of the medical record in rendering her decision.
In her decision, the ALJ acknowledged Plaintiff's complaints of pain, but found his statements were "not entirely consistent with the medical evidence and other evidence in the record." (R. at 33.) In so finding, the ALJ considered "radiographic images of the claimant's lumbar spine show[ing] the vertebral bodies to be grossly normal in height, with well-maintained disc spaces and no significant degenerative changes." (R. at 34, 310.) The referenced radiographic images were taken on April 15, 2014. (R. at 310.) The ALJ also considered "[r]adiographic images in February 2016 show[ing] scoliosis in the claimant's thoracolumbar junction, which was worse than a prior study." (R. at 34; R. at 340.) The ALJ also considered medical notes from Dr. Garcia, stating:
In January 2015, the claimant complained to Dr. Garcia of progressive numbness and weakness in both hands and arms (Exhibit C10F/4). Upon examination, the claimant demonstrated decreased sensation to the medial aspects of both hands, with slightly reduced upper extremity strength bilaterally (Id.) Dr. Garcia ordered a magnetic resonance image (MRI) of the claimant's cervical spine, which showed a left-sided disc herniation at the C5-C6 level, with right-sided bony foraminal stenosis related to spondylosis (Exhibit C8F/2). Dr. Garcia noted right-sided bony foraminal stenosis related to spondulosis (Exhibit C8F/2). Dr. Garcia noted there could be nerve root compression and recommended that the claimant see a neurosurgeon. At the hearing, the claimant stated he had not followed the doctor's recommendation because he could not afford to see a neurosurgeon. His symptoms remained the same through August 2015 despite the use of cyclobenzaprine, Tramadol, and gabapentin (Exhibit C11F/2). However, in October 2015 and February 2016, the claimant presented to an appointment in no acute distress, ambulating with a normal gait (Exhibit C12F/1/2).(R. at 34.) The ALJ stated that her residual capacity assessment ("RFC") is supported in part by the "physical examination findings from Dr. Garcia." (R. at 36.)
The evidence submitted to the Appeals Council directly relates to the above evidence considered by the ALJ. Indeed, given the results of the July 2016 MRI, taken less than two months after the ALJ issued her decision, and Dr. Garcia's opinion as to Plaintiff's functional limitations, which corroborates the MRI results, it is difficult to see how this additional evidence would not impact the ALJ's findings. This is particularly true given that there is no other opinion testimony from a treating physician in the record. The Commissioner's arguments to the contrary are unavailing.
First, there is no significant contradiction in Dr. Garcia's treatment notes such that this Court can find a reasonable possibility that the new evidence would not have changed the outcome of the ALJ's decision. Rather, Dr. Garcia's July 2016 opinion is consistent with his notes that Plaintiff "complains of chronic mid and low back pains" as recently as February 5, 2016. (R. at 338.) Second, Dr. Garcia's opinion is not necessarily inconsistent with Plaintiff's admissions, the observations of Dr. Kanwisher, and Plaintiff's level of functioning. Rather, consultative examiner Dr. Michael Kanwisher's opinion on Plaintiff's low back pain lends support to Dr. Garcia's opinion. Specifically, after examining Plaintiff on April 26, 2014, Dr. Kanwisher opined:
Regarding low back pain, the patient does have significantly diminished range of motion in the lumbar spine. It is difficult to determine whether or not this is due to pain and stiffness or due to actual injury. It is difficult to say as the patient did not have any significant injuries noted during hospitalization after [car] accident in 2007 and does not have any documented imaging of his back. Based on current range of motion, this could limit the patient's activity due to difficult with bending and movement however, I would strongly recommend imaging studies before any final disability decision is made.(R. at 318.) The additional evidence at issue confirms the "diminished range of motion in the lumbar spine" noted by Dr. Kanwisher. Further, Plaintiff never made any assertions that he could perform sedentary work.
Third, even though Dr. Garcia is not an expert in occupational health, that does not mean his opinion testimony as Plaintiff's treating physician should automatically be discounted. Social Security regulations expressly provide that "[s]pecial 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, 2016, 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. Garcia is not responsible for determining Plaintiff's RFC. "Special consideration" should be given to Dr. Garcia'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 July 2016 MRI results and Dr. Garcia's July 2016 opinion 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.
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.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE October 10, 2018 Charleston, South Carolina
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).