Opinion
CIVIL ACTION NO. 9:18-3088-DCC-BM
01-09-2020
MELVERNIA JETER, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) on April 1, 2015, alleging disability beginning on October 22, 2013, due to ulcerative colitis; neck strain, sprain, and muscle spasms; shoulder impingement; and arthritis. (R.pp. 14, 181, 243). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 9, 2017. (R.pp. 40-77). The ALJ thereafter denied Plaintiff's claim in a decision issued January 24, 2018. (R.pp. 14-27). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).
Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for further proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
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 refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by 'substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Medical History
Plaintiff's medical record reflects that she injured her left, non-dominant shoulder at work in February 2011. (R.p. 48, 58, 283). However, she did not began treatment with Dr. David Shallcross, a physical medicine and rehabilitation specialist, at Upstate Medical Rehabilitation (part of the Greenville Health System) until December 2012 (R.pp. 581-583). She underwent physical therapy and pain management treatment in 2012 and 2013 while continuing to work full time. (See R.pp. 16, 434-500, 584-605). In July 2013, Plaintiff began treatment with orthopedic surgeon Dr. Richard Hawkins of Steadman Hawkins-Greenville (part of the Greenville Health System). (R.pp. 530-532). Plaintiff does not allege that her condition was disabling during this time.
In addition to as primarily discussed hereinabove, the record also contains medical records concerning treatment of Plaintiff's non-severe impairments, including hypertension, muscle strain, ulcerative colitis, obesity, Meniere's disease in her right ear, anemia, and kidney disease. (R.pp. 412-432, 516-528, 573-579, 650-690, 786-798, 799-804, 844-849, 851-867, 1831-1862, 1870-1914, 1991-2025).
On October 24, 2013 (two days after Plaintiff's alleged onset of disability), Dr. Hawkins performed left shoulder surgery (left shoulder manipulation under anesthesia, subacromial decompression, and biceps tenotomy). (R.pp. 543-546). Plaintiff was seen after her surgery by Dr. Hawkins, who administered, and Dr. Shallcross, who prescribed, medications for her continued complaints of pain. (R.pp. 547-553, 606-607). On January 15, 2014, Dr. Hawkins diagnosed Plaintiff with shoulder pain, frozen shoulder, and cervical pain. He indicated he was not sure what to make of Plaintiff's present situation, but would continue to "hold on when she can return to work, until we see her improve." He prescribed Norco and Ambien; and administered a shoulder injection. (R.pp. 556-558).
Dr. Sara Baird, a physical medicine and rehabilitation physician with Steadman Hawkins, began treating Plaintiff's neck and shoulder pain in September 2014. (R.pp. 722-725). On July 12, 2015, a left shoulder MRI showed postoperative changes including acromioplasty, some minimal susceptibility artifact noted along the lateral pleural margin, trace subacromial bursal fluid, mild long head biceps tendinopathy, and mild labral degeneration. (R.pp. 2026-2027). Dr. John M. Tokish, an orthopedic surgeon also at Steadman-Hawkins, began seeing Plaintiff for her complaints of left shoulder and neck pain on October 19, 2015. He noted that Plaintiff was globally stiff, but did not have a true frozen shoulder; Plaintiff's x-rays and MRI were consistent with some AC joint issues; and she had some bursitis. He discussed options, including surgery, which Plaintiff was going to consider. (R.pp. 779-784). Dr. Tokish prescribed medications, including Norco, on November 2, 2015. (R.pp. 815-821).
On November 17, 2015, state agency physician Dr. Larry Caldwell opined after a review of Plaintiff's medical records that Plaintiff was capable of performing light work with limitations of frequently balancing; occasionally reaching overhead with her left extremity, climbing ramps and stairs, stooping, kneeling, crouching, and crawling; she was limited to overhead reaching with her left upper extremity; should never climb ladders, ropes, and scaffolds; and should avoid even moderate exposure to hazards. (R.pp. 98-100).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b) (2005).
On February 8, 2016, Dr. Baird opined that Plaintiff was limited to no lifting over twenty pounds with her left arm and no repetitive movement of her left upper extremity. (R.p. 1285). That same day, Dr. Tokish administered trigger point injections and ordered more physical therapy. (R.pp. 822-828). On February 15, 2016, Dr. Hawkins opined that Plaintiff could perform functionality within the light and sedentary levels, and indicated that Plaintiff had appropriate strength. (R.pp. 1305-1306). That same day, Dr. Tokish opined that Plaintiff could perform the functionality of light work, "but may not be able to due to pain." He further indicated that Plaintiff could perform the functionality of sedentary work. (R.pp. 1307-1308). Thereafter, Plaintiff continued pain management with Dr. Baird for her complaints of neck pain and left shoulder pain, and she underwent further physical therapy. (R.pp. 1915-1980, 2028-2066, ).
Sedentary work is defined as lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) (2005).
Plaintiff was seen by Nurse Practitioner (NP) Julie Justice at the Upstate Spine and Neurosurgery Center for complaints of moderate to severe pain in her neck and left shoulder on February 16, 2016. NP Justice noted on examination that Plaintiff had normal strength in all of her extremities, a normal gait and station, that she had no tenderness to palpation, no pain, normal cervical spine movements, and no radicular symptoms with neck movements. It was planned that Plaintiff would obtain an MRI of her cervical spine. (R.pp. 1061-1062). On February 29, 2016, the cervical MRI showed no significant cervical stenosis or foraminal stenosis. (R.pp. 1065-1066).
Dr. Phillip G. Esce, a neurosurgeon at Upstate Spine and Neurosurgery Center, examined Plaintiff for complaints of neck and arm pain on March 31, 2016. He noted that Plaintiff's recent cervical spine MRI showed no herniated nucleus pulposus and no stenosis, and that a physical examination indicated she had normal gait and normal strength in all of her muscles. Dr. Esce opined that Plaintiff had a whiplash injury for which no surgery was needed, and sent Plaintiff to Dr. Smith for whiplash treatment. (R.pp. 1063-1064). On April 28, 2016, Dr. Esce wrote a "to whom it may concern" note stating that he had been treating Plaintiff for neck pain, and that it was his opinion that Plaintiff "cannot return to her current occupation and she cannot seek and maintain gainful employment in the future due to her neck condition." (R.pp. 850, 1067).
On May 25, 2016, pain specialist Dr. Jeffrey Smith, also of Upstate Spine and Neurosurgery Center, assessed Plaintiff with neck pain. Dr. Smith noted that no additional work-up was warranted and thought that Botox could be an option. (R.pp. 1987-1988). On October 4, 2016, Dr. Smith noted that Plaintiff had developed whole left upper extremity numbness/tingling with associated weakness since she was last seen in May 2016. He noted that Dr. Baird had ordered an EMG/NCS, which he said was also what he would do. (R.pp. 1989-1990). However, the EMG and nerve conduction study in November 2016 was normal, with no evidence of left medium or ulnar neuropathy and no evidence of active left cervical radiculopathy. (R.pp. 2043-2050). On May 1, 2017, a cervical MRI showed interval development of central and left paracentral disc protrusion at C6-7. (R.pp. 1829-1830).
This is the last treatment note from Upstate Spine and Neurology in the record before the ALJ.
On May 8, 2017, Dr. Baird treated Plaintiff for her complaints of neck and left shoulder pain and of frequent diminished sensation in her left hand. Dr. Baird noted that Plaintiff displayed range of motion in her left shoulder, but that she had normal strength and sensation diffusely in her left upper extremity. She thought Plaintiff's radicular complaints correlated well with her MRI and recommended epidural steroid injections. (R.pp. 2071-2074). On June 14, 2017, Dr. Baird noted that Plaintiff complained of tenderness to palpation over her left upper trapezius and lower cervical paraspinal muscles, although she again had normal strength and sensation in her left upper extremity diffusely. Dr. Baird indicated that she was puzzled that Plaintiff's bilateral epidural did not help since Plaintiff's symptoms were radicular in nature. Dr. Baird started Plaintiff on a trial of Gabapentin, recommended against filling out paperwork for a handicap placard (which Plaintiff had requested Dr. Baird complete) because she thought Plaintiff should be able to walk without difficulty, and referred Plaintiff back to Dr. Esce to consider a surgical option. (R.pp. 2078-2085).
Discussion
Plaintiff was forty-four years old on the date she alleges she became disabled, and forty-nine years old at the time of the ALJ's decision. She has a high school education and has past relevant work experience as a shipping-order clerk, warehouse worker, and truck driver. (R.pp. 24-25, 48, 50, 68-69, 181, 244). In order to be considered "disabled" within the meaning of the Social Security Act (SSA), Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months. After a review of the evidence and testimony in the case, the ALJ determined that although Plaintiff does suffer from the "severe" impairments of arthropathies, shoulder impingement, and degenerative disc disease (R.p. 16), she nevertheless retained the residual functional capacity (RFC) for light work with limitations that she can occasionally stoop and crawl; frequently climb steps, balance, kneel, and crouch; only occasionally work overhead using her left upper extremity; never climb ladders; and must avoid concentrated exposure to hazards (R.p. 17). At step four, the ALJ found that Plaintiff was capable of performing her past relevant work as a shipping-order clerk with these limitations. (R.pp. 24-25). The ALJ also obtained testimony from a vocational expert (VE) and in the alternative found at step five that Plaintiff could perform other jobs existing in significant numbers in the national economy with these limitations, and thus was not disabled during the period at issue. (R.pp. 25-26).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
Plaintiff asserts that in reaching this decision the ALJ erred by failing to properly evaluate the demands of her past relevant work, and that the Appeals Council erred in evaluating new evidence submitted to it as part of Plaintiff's appeal. However, after a careful review and consideration of the evidence and arguments presented, the undersigned finds and concludes for the reasons set forth hereinbelow that there is substantial evidence to support the decision of the Commissioner, and that the decision should therefore be affirmed. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].
Past Relevant Work
Plaintiff initially contends that that the ALJ erred in evaluating her past relevant work such that the ALJ's determination that she is not disabled is not supported by substantial evidence. The Commissioner contends that Plaintiff failed to meet her burden to show that she could not perform her past relevant work. Alternatively, the Commissioner asserts that even if Plaintiff could not perform her past work as it is generally performed in the national economy, she is still not entitled to disability benefits because the VE identified other jobs that someone with Plaintiff's vocational profile and RFC could perform.
At step four of the disability inquiry, a claimant will be found "not disabled" if she is capable of performing her past relevant work either as she performed it in the past or as it is generally required by employers in the national economy. SSR 82-61, 1982 WL 31387, at *2. The claimant bears the burden of establishing that she is incapable of performing her past relevant work. See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). In determining this issue, Social Security Ruling 82-62 requires the ALJ to determine the following when evaluating whether a claimant can perform her past relevant work:
The Social Security regulations establish a five-step sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520. Under this process, the ALJ must determine whether the claimant: (1) is currently engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment which meets or equals an impairment contained in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) if not, whether the claimant has an impairment which prevents her from performing past relevant work; and (5) if so, whether the claimant is able to perform other work considering both her remaining physical and mental capacities (defined by her RFC) and her vocational capabilities (age, education, and past work experience) to adjust to a new job. See 20 C.F.R. § 404.1520; Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). The applicant bears the burden of proof during the first four steps of the inquiry, while the burden shifts to the Commissioner for the final step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995)(citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992))
1. A finding of fact as to the individual's RFC.SSR 82-62, 1982 WL 31386, at *4. In this case, Plaintiff argues that the ALJ erred in evaluating the demands of her past work as a shipping-order clerk because the VE identified two separate Dictionary of Occupational Title (DOT) codes for this job.
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.
The DOT is "a publication of the United States Department of Labor that contains descriptions of the requirements for thousands of jobs that exist in the national economy." Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002). "[T]he DOT, in its job description, represents approximate maximum requirements for each position rather than the range." See Fenton v. Apfel, 149 F.3d 907, 911 (8th Cir. 1998).
"In the event the main duties of past relevant work can only be described by considering multiple DOT occupations, a [claimant] may be considered to have performed a composite job." Shealy v. Colvin, No. 8:13-2383, 2015 WL 467726, at *12 (D.S.C. Feb. 4, 2015). Composite jobs are jobs in which no single DOT job code would be accurate alone, but rather have elements of more than one DOT job code. SSR 82-61. Pursuant to the Administration's Program Operations Manual System (POMS), when comparing a claimant's RFC to a composite job as the claimant performed it, the ALJ "must find the claimant capable of performing the composite job only if he or she can perform all parts of the job." POMS DI § 25005.020B; see also Shealy, 2015 WL 467726, at *13 [noting that an ALJ may not find a claimant capable of performing past relevant work by dividing the demands of a composite job into two separate jobs and finding the claimant capable of performing the less demanding of the two jobs]. Further, it is indicated in the POMS that "[a] composite job does not have a DOT counterpart", such that an ALJ should "not evaluate it at the part of step 4 considering work 'as generally performed in the national economy.'" POMS DI § 25005.020B.
The parties do not appear to dispute that Plaintiff could not perform her past relevant work as a shipping-order clerk as she performed it, but they disagree as to whether she could perform this job as generally performed in the national economy. In her function reports, Plaintiff identified her jobs in the previous fifteen years as: (1) an assistant shipping manager (October 2007 to October 2013) in the automotive industry, (2) a courier (November 2005 to November 2007) in the freight industry, and (3) a shipping clerk (July 1991 to November 2005) in the textile industry. (R.pp. 250-253). At the hearing before the ALJ, Plaintiff testified that her most recent job as a shipper at Gestamp (an automotive supplier for BMW) included paperwork and making routing arrangements, but also involved using a forklift, loading and unloading items, and lifting up to fifty pounds. (R.p. 51). She also testified that her other job in shipping (at Paragon Plastic) involved lifting about forty pounds. (R.p. 54). It is unclear whether the VE identified one or both of Plaintiff's prior jobs as a shipping-order clerk by referencing more than one DOT code. The Commissioner argues that the ALJ's decision is supported by the VE's testimony (R.pp. 67-70) that Plaintiff could return to her shipping-order clerk job as performed in the national economy. However, in response to questions from Plaintiff's attorney, the VE stated "that shipping clerk would just be the part where she completes the paperwork and calls the carrier[,] but as the truck driver would be a different DOT code." (R.p. 72). Thus, it appears that the VE may have identified Plaintiff's past relevant work as a shipping-order clerk by referencing two DOT codes.
The VE stated that a person with Plaintiff's background and RFC would be able to go back to work as a shipping clerk as normally performed (but not as actually performed because she lifted up to forty pounds). (R.pp. 69-70).
However, even if the Court were to find the VE's testimony did not sufficiently identify Plaintiff's past relevant work or that the ALJ erred in his step four analysis, that is not a basis for reversal of the decision, as the ALJ also proceeded to step five, obtained testimony from the VE, and found that Plaintiff is also not entitled to disability benefits because there are other jobs in the economy that Plaintiff can perform with her limitations. (R.pp. 25-26, 69-71). See Mickles v. Shalala, 29 F.3d 918, 925-926 (4th Cir. 1994) [finding the ALJ's error harmless when the ALJ would have reached the same result notwithstanding an error in his analysis]; Davis v. Astrue, No. 07-231, 2008 WL 540899, at *3 (D.S.C. Feb. 22, 2008) [recognizing harmless error analysis]. In her response brief, Plaintiff argues that because the ALJ allegedly erred in relying on the VE's testimony at step 4, "it cannot be said with confidence that all of the VE's testimony and the ALJ's resulting reliance on the testimony was accurate." Plaintiff's Response Brief, ECF No. 14 at 3. However, Plaintiff has identified no error in the VE's testimony where the VE identified jobs in the national economy that a claimant of Plaintiff's age, education, past relevant work, and RFC limitations could perform. (R.pp. 69-71). Plaintiff testified and provided written information (including her work history report and a written job description from her employer) as to the duties she performed and her past relevant work, which was fully considered by the VE and ALJ. Plaintiff has not disputed that the ALJ included all of Plaintiff's background information and limitations in her hypothetical to the VE, and that in response the VE identified jobs in the national economy that such a claimant can perform with these limitations. See SSR-00-4p, at * 4 [ALJ may rely on VE's professional experience]; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980)[ALJ may rely on VE opinion based on training, experience and familiarity with skills necessary to function in various jobs].
Although the ALJ found that Plaintiff's past relevant work included semi-skilled past relevant work (which Plaintiff has not disputed), the VE testified that there were no other transferable skills from her jobs she performed. (R.p. 70). The ALJ specifically noted that transferability of job skills was not material to the determination of disability. (R.pp. 24-25).
Therefore, Plaintiff has shown no error at step five, and the ALJ's determination that Plaintiff was not disabled is supported by substantial evidence. Hays, 907 F.2d at 1456 [If there is evidence to justify refusal to direct a verdict where the case before a jury, then there is 'substantial evidence'].
New Evidence Submitted to the Appeals Council
Plaintiff next contends, citing Meyer v. Astrue, 662 F.3d 700 (4th Cir. 2011), that the Appeals Council erred in failing to consider new evidence from Dr. Esce. The Commissioner argues that the Appeals Council properly evaluated evidence submitted after the ALJ's decision and found it did not provide a basis for remand under the SSA's new governing regulations.
After the ALJ's decision, Plaintiff submitted three documents to the Appeals Council that were not previously submitted. (R.p. 2). On a Disabled Placard and License Plate Application completed July 25, 2017, Dr. Esce checked a box indicating that Plaintiff had an inability to ordinarily walk one hundred feet nonstop without aggravating an existing medical condition, including the increase of pain. (R.pp. 38-39). On October 11, 2017, Dr. Esce completed a Doctor's Statement for Plaintiff's long-term disability carrier. His diagnosis was neck pain with left arm radiculopathy and a herniated disc. He noted that there were no appointments scheduled. As to Plaintiff's prognosis, Dr. Esce wrote "waiting for MRI review". Dr. Esce concluded that Plaintiff was "permanently disabled and cannot return to work." (R.p. 36). On February 8, 2018 (a couple of weeks after the ALJ's decision), Dr. Esce wrote that he had treated Plaintiff since February 16, 2016, and that Plaintiff had a large herniated disk at C6-7 resulting from a work-related injury. He stated that Plaintiff had failed all aspects of conservative treatment and therefore he recommended that Plaintiff have surgery that would require the placement of titanium hardware. Dr. Esce opined that Plaintiff was "unable to seek and maintain gainful employment due [to] the condition of her neck because if she were to continue working, it would only get progressively worse and she runs a very high risk of spinal cord nerve injury that would be permanent with very little treatment options to improve her condition." (R.p. 10). The Appeals Council noted that Plaintiff had submitted the evidence described above, but found that "this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence." (R.p. 2).
There is a scrivener's error in the Appeals Council decision where it refers to Dr. Esce's letter as dated February 8, 2015 (R.p. 2), instead of February 8, 2018.
The regulation governing the Appeals Council's review of cases was amended, effective January 1, 2017. This amended regulation provides, in part:
The parties do not appear to dispute that this newest version of the regulation (which was effective prior to the time of the hearing) applies.
(a) The Appeals Council will review a case if—
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(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:
20 C.F.R. § 404.970 (2017). Thus, when presenting new evidence for the first time at the Appeals Council level: (1) the claimant must demonstrate good cause for the failure to submit the evidence in question at least five days prior to the ALJ's hearing pursuant to 20 C.F.R. § 404.953; and (2) the claimant must show a reasonable probability of a different outcome.(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 regulation provides, in part:
Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing.20 C.F.R. § 404.935(a).
Here, Plaintiff has provided no reasons for not submitting the July 2017 Placard Application prior to the August 2017 hearing before the ALJ and for not submitting the October 2017 opinion prior to the ALJ's January 2018 decision. Nor has she provided any reason for why the February 8, 2018 opinion from Dr. Esce was not obtained until after the ALJ's decision. Indeed, in her initial brief, Plaintiff did not expressly address the requirements of § 404.970 and did not discuss good cause or provide any explanation for why she did not submit the additional evidence (described above) prior to the hearing or even prior to the ALJ's decision. In her response brief, Plaintiff again does not address good cause as outlined in § 404.970, but appears to argue that a different "good cause" standard than that outlined in § 404.970 should be applied. Specifically, she argues that some courts in other circuits previously had stricter limitations on new evidence submitted to the Appeals Council and noted that the good cause requirement reflected a congressional determination to prevent bad faith manipulation of the administrative process. She further contends that the good cause requirement is essentially identical to the good cause requirement with regard to new evidence submitted to the Court for the first time in a sentence six remand request, such that good cause should be construed liberally and the claimant should only be required to make a general showing of the nature of the evidence, that the new evidence is not cumulative, that the new evidence bears directly and substantially on the issues decided, and that it has a reasonable chance of altering the Commissioner's decision. Finally, Plaintiff contends that the new regulation is essentially identical to a regulation that has been in effect since 2006 in the agency's Boston region, and that courts in that region construed their regulation liberally to further the SSA's remedial purposes and applied an excusable neglect standard.
However, even assuming such a standard to be appropriate, Plaintiff has not specified what excusable neglect occurred. She only asserts that "[w]e have not engaged in bad faith and did not withhold the treating opinions." See Reply Brief, p. 5. In providing guidance regarding what is often referred to as the "5-Day Rule," the Social Security Administration recognized "that there will be circumstances in which claimants cannot produce evidence at least five business days before the hearing." Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987-01, 90990, 2016 WL 7242991 (Dec. 16, 2016). As a result, the SSA "included appropriate exceptions to the 5-day requirement to ensure fairness when a claimant or his or her representative actively and diligently seeks evidence but is unable to obtain it." Id. The SSA has noted that "our rule is not intended to prevent a claimant from submitting evidence related to ongoing treatment," rebuttal evidence "if an ALJ introduces new evidence at or after a hearing," or evidence the claimant or attorney "actively and diligently [sought] but [was] unable to obtain." Id. at 90990-91. However, Plaintiff has submitted no such arguments.
Further, even if Plaintiff can satisfy the good cause requirement, she has not shown a reasonable probability that the new evidence would have changed the outcome of the Commissioner's decision. A reasonable possibility the new evidence would have changed the outcome of the case has long been how the Fourth Circuit Court of Appeals defines "material." See Meyer v. Astrue, 662 F.3d at 705 (internal citation omitted); Wilkins v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). The amended regulations, however, re-define materiality as evidence that is "relevant, i.e., involves or is directly related to issues adjudicated by the ALJ," and adds the reasonable probability standard as an additional requirement. HALLEX I-3-3-6; see 20 C.F.R. § 404.970(a)(5). Thus, the new version of § 404.970 heightens a claimant's burden from showing a "reasonable possibility" to a "reasonable probability." See Hawks v. Berryhill, No. 1:17-CV-1021, 2018 WL 6728037, at *4 (M.D.N.C. Dec. 21, 2018)[noting that showing a reasonable probability of a different outcome is now an additional requirement to showing materiality], adopted by 2019 WL 359999 (Jan. 29, 2019). The Appeals Council found that Plaintiff did not meet this standard (R.p. 2), and the undersigned can discern no reversible error in this decision.
Plaintiff submitted opinions from treating physician Dr. Esce to the Appeals Council. The opinion of a treating physician is ordinarily entitled to great weight; see Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996) [Noting importance of treating physician opinion]; is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. §§ 404.1527, 416.927. See SSR 96-2p. Under these regulations, a treating source's opinion on the nature and severity of an impairment is entitled to "controlling weight" where it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. See 20 C.F.R. §§ 404.1527(c), 416.927. However, although Dr. Esce provided opinions in July and October 2017 as well as February 2018, the only treatment note from him is dated March 31, 2016 (R.pp. 1063-1064), and the last treatment note of record from anyone in his medical group is from Dr. Smith in October 2016 (1989-1990). Dr. Esce's October 2017 completion of paperwork for Plaintiff's long-term disability carrier appears to be somewhat duplicative of his April 2016 opinion (that Plaintiff could not "return to her current occupation and she cannot seek and maintain gainful employment in the future due to her neck condition - R.pp. 850, 1067) which was previously considered and discounted by the ALJ. Further, the October 2017 opinion that Plaintiff was "permanently disabled and cannot return to work" (R.p. 36) is a determination of disability that is reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)[" A statement by a medical source that you are "disabled" or "unable to work" does not mean that we will determine that you are disabled."]; see also Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) [physician opinion that a claimant is totally disabled "is not dispositive because final responsibility for determining the ultimate issue of disability is reserved to the [Commissioner]"].
It is noted that for claims filed after March 27, 2017, the regulations have been amended, and that several of the prior Social Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social Security Administration "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." 20 C.F.R. § 416.920c (2017). However, as the claim in the present case was filed before March 27, 2017, Plaintiff's claim has been analyzed pursuant to the treating physician rule set out above. As such, references in this Report and Recommendation are to the prior versions of the regulations in effect at the time of the ALJ's decision, unless otherwise specified.
The ALJ specifically considered this opinion and gave it little weight, as it was an issue of disability reserved to the Commissioner, there was a normal neurological examination at Dr. Esce's office in February 2016, examinations by her kidney disease specialist and gastroenterologist during 2016 indicated normal musculoskeletal and neurological examinations, Plaintiff's physical examination with Dr. Esce in March 2016 was normal and he recommended no surgery, the 2016 neck MRI showed no significant cervical stenosis or foraminal stenosis, Plaintiff denied any numbness or weakness during an examination with pain specialist Dr. Sara Baird in May 2016, September 2016 examination showed full range of motion in left shoulder in all directions with no focal strength deficits and intact sensation, November 2016 examination revealed full pain-free cervical range of motion in all planes with no edema or atrophy and five out of five muscle strength, and nerve conduction studies were normal. (R.pp. 22-23). Therefore, the Appeals Council did not err in finding there was no reasonable probability that this evidence would change the ALJ's decision.
As for the Disabled Placard Application, Dr. Esce opined that Plaintiff had an inability to ordinarily walk one hundred feet nonstop without aggravating an existing medical condition, including the increase of pain. (R.p. 38). As noted above, Dr. Esce and his colleagues examined Plaintiff for complaints of neck and shoulder pain, but there is simply nothing in these treatment notes to support this opinion. Further, this opinion is contradicted by Dr. Baird's recommendation in June 2017 (shortly prior to Dr. Esce's opinion, but after the May 2017 cervical MRI) that paperwork for a handicap placard should not be completed because she thought Plaintiff should be able to walk without difficulty. (R.pp. 2078-2085). Again, no reversible error is shown in the Appeals Council's consideration of this evidence.
Finally, Plaintiff argues to argue that there is a reasonable probability that Dr. Esce's February 2018 opinion would change the ALJ's decision because it was rendered after he considered a cervical MRI. Plaintiff contends, pursuant to Meyer, that the evidence is sufficiently material that it might have affected the Commissioner's decision such that it should have been weighed by the Appeals Council and thus that the case should be remanded to weigh the evidence in question. However, in addition to this opinion was not being issued until after the ALJ's January 2018 decision, this MRI was completed in May 2017, and there are no treatment notes from Dr. Esce to support the opinion. Further, Dr. Baird, the treating physician who ordered the MRI, conducted two subsequent examinations of Plaintiff after receiving the MRI results. She noted no significant changes in Plaintiff's condition in these examinations, and although she speculated that surgery might be warranted, she did not provide any additional limitations from those imposed in her February 2016 opinion (noting that Plaintiff could perform a range of light work), which the ALJ accorded great weight (R.pp. 24, 1285 ).
In Meyer, the Fourth Circuit held that where a claimant submits additional evidence that was not before the ALJ when requesting review by the Appeals Council, 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. Moreover, when the Appeals Council decides to deny review, it need not provide any explanation of its reasoning. Id. at 705. The Commissioner contends that the record before the ALJ provided an adequate explanation of the Commissioner's decision including evaluation of opinions from Plaintiff's treating physicians including an opinion from Dr. Esce. The undersigned agrees.
As was noted in Meyer, 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 supports the ALJ's findings. Reversal is required only 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. Here, even if Meyer is applicable in light of the changes to the regulations concerning Appeals Council review (20 C.F.R. § 404.970), substantial evidence supports the ALJ's findings after consideration of the record as a whole, including the new evidence. The ALJ found that Plaintiff could perform a reduced range of light work despite her impairments (including her neck and shoulder impairments) after consideration of all the objective and subjective evidence. The evidence presented to the Appeals Council contains no new objective evidence and no new treatment notes. As noted above, Dr. Esce's July 2017 Disabled Placard Application opinion is not supported by the evidence in the treatment record, including the opinion of treating physician Dr. Baird, who specifically rejected that Plaintiff's condition required such an application because Plaintiff was able to walk without difficulty. Dr. Esce's October 2017 opinion is also not supported by the treatment record, and is also an opinion on an issue reserved to the Commissioner. Finally, although Dr. Esce recommended surgery in February 2018, that was after the ALJ's decision, and as discussed above, Dr. Baird treated Plaintiff after obtaining the May 2017 cervical MRI and provided no further limitations on her ability to perform a range of light work.
In sum, after review of all of the evidence, including the evidence submitted to the Appeals Council, the Appeals Council determined that this new evidence did not provide a reason to alter or remand the ALJ's decision. Substantial evidence supports this conclusion. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"]. Therefore, Plaintiff's argument that the Appeals Council erred in its handing of the new evidence submitted to it is without merit
Conclusion
Substantial evidence is defined as "... evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously noted, if the record contains substantial evidence to support the decision (i.e., if there is sufficient evidence to justify a refusal to direct a verdict were the case before a jury), this Court is required to uphold the decision, even should the Court disagree with the decision. Blalock, 483 F.2d at 775.
Under this standard, the record contains substantial evidence to support the conclusion of the Commissioner that the Plaintiff was not disabled within the meaning of the SSA during the time period at issue. Therefore, it is recommended that the decision of the Commissioner be affirmed.
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 9, 2020
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).