Opinion
2:22-CV-16-FL
01-02-2024
VICKIE SPIVEY, Plaintiff/Claimant, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones Jr. United States Magistrate Judge.
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-15, -24] pursuant to Fed.R.Civ.P. 12(c). Claimant Vickie Spivey (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) payments. Claimant filed a reply in support of her motion, [DE-28], the time for further responsive briefing has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability, DIB, and SSI on February 26, 2020, alleging disability beginning November 20, 2017, later amended to February 1, 2020.(R. 25, 231-41, 264). The claims were denied initially and upon reconsideration. (R. 25, 102- 51). A hearing before the Administrative Law Judge (“ALJ”) was held on January 21, 2021, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared by telephone and testified. (R. 41-79). On March 8,2021, the ALJ issued a decision denying Claimant's request for benefits. (R. 22-40). On February 10, 2022, the Appeals Council denied Claimant's request for review. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
A prior application for benefits was denied on March 8, 2019, (R. 80-95), and the Appeals Council denied review on December 30, 2019, (R. 96-101).
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into the written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges (1) the ALJ erred in failing to properly evaluate her ability to perform light work while using a cane, her severe sleep apnea and obesity, her statements about her symptoms, and her reliance on a home health aide, and (2) the Appeals Council erred in failing to properly consider new and material evidence post-dating the ALJ's decision. Pl.'s Mem. [DE-16] at 11-22.
The court refers to the page numbers found in the CM/ECF footer where, as here, they differ from the document's internal page numbers.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since February 1, 2020, the amended alleged onset date. (R. 28). Next, the ALJ determined Claimant had the severe impairments of spondylosis from L3-S1, lumbar radiculopathy, a herniated lumbar disc, trochanteric bursitis of both hips, sacroiliitis, diabetes mellitus, carpal tunnel syndrome, sleep apnea, and obesity. Id. The ALJ also determined that Claimant's upper respiratory infection, allergic rhinitis, insomnia, anemia, vitamin D deficiency, and ovarian cyst were non-severe, and Claimant's chronic pain syndrome was not a medically determinable impairment. Id. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 28-29).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a reduced range of light work with the following non-exertional limitations:
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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
[S]he can occasionally lift, carry, push, and pull up to 20 pounds, frequently lift, carry, push, and pull up to 10 pounds as well as sit, stand, and walk for six hours in an eight-hour workday. She can occasionally use her right lower extremity to operate foot controls, occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, occasionally balance, as balance is defined in the Dictionary of Occupational Titles, occasionally stoop, kneel, crouch, and crawl, frequently handle, tolerate no exposure to unprotected heights, and requires an assistive device for ambulation.(R. 30-34). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence of record. (R. 33).
At step four, the ALJ concluded Claimant was unable to perform her past relevant work as a scaler-packer or housekeeper. (R. 34). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant was capable of performing other jobs that exist in significant numbers in the national economy. (R. 35-36).
V. DISCUSSION
A. The RFC Assessment
Claimant contends the ALJ committed several errors in assessing her RFC, namely that the ALJ erred in failing to properly evaluate Claimant's ability to perform light work while using a cane, her severe sleep apnea and obesity, her statements about her symptoms, and her reliance on a home health aide. Pl.'s Mem. [DE-16] at 11-17; Pl.'s Reply [DE-28]. The Commissioner contends substantial evidence supports the ALJ's RFC finding. Def.'s Mem. [DE-25] at 5-19.
The RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. “[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
1. Use of Cane
The ALJ found that Claimant had the RFC to occasionally lift and carry twenty pounds, frequently lift and carry ten pounds, and required the use of an assistive device for ambulation. (R. 30). Claimant contends that the ALJ failed to sufficiently explain how she can carry twenty pounds with one hand, while utilizing a cane with the other hand to ambulate, considering her documented hand problems from persistent severe carpal tunnel syndrome. Pl.'s Mem. [DE-16] at 12; Pl.'s Reply [DE-28] at 1-4. The Commissioner contends that the court can trace the ALJ's reasoning based on her discussion of the medical records, which include numerous findings of full strength and sensation in the upper extremities, and her discussion of the prior administrative medical findings and prior decision from 2019. Def.'s Mem. [DE-25] at 12-13.
The ALJ acknowledged Claimant's testimony that while performing her past relevant work on a production line she started dropping things including knives and scissors, that she used a cane that provided relief, and that she had carpal tunnel syndrome in both hands that kept her from caring for herself. (R. 30-31). In summarizing the medical testimony, the ALJ noted that Claimant had carpal tunnel surgery on both hands in 2011 and 2012, and in September 2020, Claimant reported right wrist pain, numbness, and tingling, having problems dropping things, and planning to follow up with her neurologist. (R. 32). Turning to the medical opinion evidence, the ALJ agreed with the state agency consultants that a limitation to frequent handling was appropriate due to Claimant's carpal tunnel syndrome, (R. 33), but disagreed with their failure to acknowledge her need for an assistive device for ambulation, (R. 34). The ALJ cited Claimant's prescription for a cane given by Dr. Cooper in March 2017, and documentation in the record that she attended medical appointments using her cane. Id. The ALJ also noted that Claimant reported she had difficulty using the cane due to symptoms of carpal tunnel in her wrist. Id. Finally, the ALJ gave great weight to the prior ALJ's 2019 decision and finding that Claimant required an assistive device for ambulation. Id.
The ALJ summarized Claimant's testimony as stating that “she was using a cane that provided relief to her hands and arms.” (R. 31). This is not an accurate representation of Claimant's testimony. Claimant testified that she utilized a cane because she was having problems with her knees and fell a couple of times, the cane started giving her a little relief but then her hands and arms started bothering her, and eventually she could no longer use her cane. (R. 62).
The court is unable to trace the ALJ's determination that Claimant can perform light work, requiring the occasionally lifting and carrying of twenty pounds, while utilizing a cane for ambulation. There is little discussion of Claimant's carpal tunnel syndrome in the ALJ's decision. However, the ALJ found it to be a severe impairment, (R. 28), acknowledged Claimant's testimony that she could no longer perform her past work on the production line because she dropped things, (R. 30, 56), noted Claimant's report in September 2020 that she continued having symptoms and problems dropping things, (R. 32, 545), and noted that Claimant reported difficulty using her cane due to symptoms of carpal tunnel in her wrists, (R. 34, 62). Claimant testified that due to the pain, numbness, and stiffness in her hands she required the assistance of a home health aide to bathe and prepare meals and that she could no longer use her cane due to pain in her hands, arms, and shoulders. (R. 62-63).
It is not evident from the ALJ's decision how she determined that Claimant could occasionally lift and carry twenty pounds in one hand while utilizing a cane for ambulation in the other hand given her alleged limitations using her hands due to carpal tunnel syndrome. The ALJ is not permitted to merely review the evidence and state a conclusion without providing the requisite “logical explanation.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). “[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.... [M]eaningftil review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Moseley v. Kijakazi, No. 4:20-CV-162-D, 2022 WL 484099, at *3 (E.D. N.C. Feb. 1, 2022) (quoting Thomas, 916 F.3d at 311), report and recommendation adopted, 2022 WL 482540 (E.D. N.C. Feb. 16,2022). While the ALJ dismissed Claimant's statements concerning the limiting effects of her symptoms as not consistent with the medical evidence and other evidence, (R. 33), the ALJ provided no explanation in support of this conclusion. See Mascio, 780 F.3d at 640 (finding error where the ALJ failed to provide a proper explanation of how he decided which of the claimant's statements to believe and which to discredit).
The Commissioner suggests the ALJ's conclusion that Claimant could perform light work with her cane despite her carpal tunnel syndrome is supported by findings in treatment notes of full strength and sensation in her upper extremities, the state agency reviewers' findings that Claimant was limited to frequent handling due to carpal tunnel, and the adoption of the prior 2019 decision's finding that Claimant could perform light work with the use of a cane, where Claimant's condition was otherwise unchanged. Def. 's Mem. [DE-25] at 13. None of this evidence is sufficient to support or explain the ALJ's finding regarding Claimant's ability to perform light work with a cane given the limitations from her carpal tunnel syndrome.
First, the findings of full strength and sensation in the upper extremities referenced by the Commissioner were not discussed in the ALJ's decision. See Patterson v. Bowen, 839 F.2d 221, 225 n.l (4th Cir. 1988) (reviewing court may only affirm an ALJ's decisions based on the reasons the ALJ provided). In any event, upon review, the referenced treatment notes are related to an assessment of Claimant's back pain, not her carpal tunnel syndrome, and in several instances the findings are so generalized that it is not apparent that they relate to Claimant's hands. (R. 349, 354, 469, 506, 513, 540-41, 558, 561, 578). For example, cited treatment notes from July 8, 2019 and May 26,2020 for low back pain simply state “[m]otor and sensory exams are grossly normal.” (R. 506,513).
Next, the state agency reviewers' opinions provide no support for the ALJ's conclusion that Claimant could occasionally lift and carry twenty pounds in one hand while utilizing a cane for ambulation in the other because, as the ALJ observed, they did not find that Claimant required a cane for ambulation. (R. 34). The fact that they found Claimant was limited to frequent handling cannot, without further explanation, provide substantial evidence for the ALJ's finding that Claimant could occasionally lift and carry twenty pounds while utilizing a cane.
Finally, the ALJ's adoption of the prior 2019 determination that Claimant could perform light work with the use of a cane does not fill the gap left by the ALJ's lack of explanation here, because the prior ALJ did not find Claimant's carpal tunnel syndrome was a severe impairment. (R. 86). The issue here is whether Claimant is able to occasionally lift and carry twenty pounds with one hand while utilizing a cane in light of her carpal tunnel syndrome. Thus, the ALJ's adoption of the prior decision is not helpful to the court in tracing the reasoning in the current decision.
Accordingly, because the court cannot trace the ALJ's reasoning in finding Claimant is able to occasionally lift and carry twenty pounds with one hand while utilizing a cane given the limitations from her carpal tunnel syndrome, it is recommended the matter be remanded for further consideration of this issue.
2. Sleep Apnea with Insomnia and Obesity
The ALJ found that Claimant's sleep apnea and obesity were severe impairments and that her insomnia was a non-severe impairment related to sleep apnea and a broken CPAP machine. (R. 28). Claimant contends the ALJ should have included a limitation in the RFC related to her sleep apnea with insomnia and need for multiple naps, and the ALJ did not sufficiently explain her consideration of Claimant's obesity considering her other severe musculoskeletal impairments. Pl.'s Mem. [DE-16] at 12-13; Pl.'s Reply [DE-28] at 4-5. The Commissioner contends the ALJ's decision is sufficiently explained and supported by substantial evidence. Def.'s Mem. [DE-25] at 13-14.
First, with respect to Claimant's sleep apnea and insomnia, the ALJ acknowledged Claimant's testimony that she experienced tiredness and would doze off two to three times a day but found that Claimant's insomnia was related to her sleep apnea and a broken CPAP machine, and after a new sleep study Claimant was restarted on a CPAP. (R. 28, 32-33). The ALJ cited a treatment note from September 2020 which stated that after Claimant restarted her CPAP, she reported less daytime sleepiness and that she continued to benefit from the device. (R. 558). The court can trace the ALJ's reasoning for not imposing a limitation for daytime naps to account for Claimant's insomnia and drowsiness related to sleep apnea where her condition improved after she restarted use of the CPAP.
Next, with respect to Claimant's obesity, the ALJ found it to be a severe impairment but concluded there were no objective findings related to Claimant's obesity that indicate functional limitations that would meet a listing. (R. 28-29). SSR 19-2p recognizes that obesity can be a medically determinable impairment, people with obesity have a higher risk for other impairments, and the effects of obesity combined with other impairments can be greater than the effects of each of the impairments considered separately. 2019 WL 2374244, at *2 (2019). While obesity is not a listed impairment, the functional limitations caused by obesity, either alone or in combination with another impairment, may medically equal a listing and may or may not increase the severity or functional limitations of other impairments. Id. The ALJ must consider the limiting effects of obesity when assessing a claimant's RFC. Id. at 4.
The ALJ found that Claimant's obesity, along with her other limitations, prevented her from lifting or carrying more than 20 pounds, included a limitation for the use of a cane in the RFC, and noted that Claimant had lost 43 pounds and could tell that her sleep had improved. (R. 32-33). Specifically, the ALJ noted that in July 2019, Claimant's BMI was over 39, which is considered morbidly obese, and her CPAP machine was broken; by November 2019, she had lost eight pounds and her BMI was 37, which is still obese; by June 2020, she had lost forty-three pounds, her sleep had improved, and she was subsequently started on a new CPAP; and a September 2020 treatment note stated that Claimant “has lost a significant amount of weight.” (R. 31-33, 486, 490, 558-60). Claimant does not point to any specific evidence not considered by the ALJ related to Claimant's obesity that would support further limitations. See Lilley v. Saul, No. 4:19-CV-93-RJ, 2020 WL 3884429, at *7 (E.D. N.C. July 9, 2020) (finding no reversable error where the ALJ acknowledged the claimant's obesity and the record failed to demonstrate how obesity further limited the RFC beyond that found by the ALJ) (citing Winstead v. Saul, No. 5:19-CV-210-FL, 2020 WL 1670743, at *8 (E.D. N.C. Mar. 16, 2020) (finding any error in considering the claimant's obesity harmless where the record failed to demonstrate how obesity further limited the claimant's abilities beyond the RFC determined by the ALJ), report and recommendation adopted, 2020 WL 1668048 (E.D. N.C. Apr. 3, 2020)). The ALJ sufficiently considered Claimant's obesity when formulating the RFC, and it is not the court's role to “to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (citation omitted).
3. Claimant's Subjective Statements
The ALJ found that while Claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Claimant's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical and other evidence in the record. (R. 33). Claimant contends the ALJ did not adequately explain why she found Claimant's statements regarding her symptoms to be not entirely consistent with the medical and other evidence. Pl.'s Mem. [DE-16] at 14. Similarly, Claimant also contends the ALJ did not address Claimant's testimony regarding her daily reliance on a home health aide to assist with activities of daily living. Id. at 16-17; see also Pl.'s Reply [DE-28] at 5-7. The Commissioner contends the ALJ's discussion of the medical evidence, opinion evidence, and the prior 2019 decision was sufficient to support the RFC, and the ALJ fully considered Claimant's testimony regarding a home health aide. Def.'s Mem. [DE-25] at 15-19.
Federal regulations 20 C.F.R. §§ 404.1529(a) and 416.929(a) provide the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause the alleged symptoms. SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate “the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work,” Craig, 16 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. SSR 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the “intensity, persistence and limiting effects” of the claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 59596, but the ALJ is not required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), report and recommendation adopted, 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
As noted above with respect to Claimant's carpal tunnel syndrome, the ALJ dismissed Claimant's statements concerning the limiting effects of her symptoms as not consistent with the medical evidence and other evidence “for the reasons explained in [the] decision,” (R. 33), but the ALJ in fact provided no explanation, a critical error leaving the court unable to conduct a meaningful review of the decision. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018), report and recommendation adopted, 2022 WL 482540 (E.D. N.C. Feb. 16, 2022); Thomas, 916 F.3d at 311; Mascio, 780 F.3d at 640. The ALJ acknowledged Claimant's testimony that she had difficulty standing and walking due to her back pain that limited her to standing for no longer than ten minutes, her carpal tunnel prevented her from caring for herself, she required assistance bathing and preparing meals, and she had utilized a “house aide” for the past four to five months. (R. 31). As for walking, Claimant testified that due to problems with her knees she started using a cane, which gave her some relief until she started having pain in her hands and arms, could no longer use her cane, and was effectively homebound. (R. 61-62). The ALJ did not explain in her decision how this testimony was inconsistent with the medical evidence and other evidence of record.
The ALJ again misstated Claimant's testimony. The ALJ stated that Claimant's “sister” would come help her bathe and prepare meals, (R. 31), but this is incorrect. Claimant testified that a home health aide, not her sister, came seven days a week for around three hours a day to assist her with bathing, cooking, and house chores. (R. 63, 69-70). This is a potentially significant difference because the need for assistance from a professional home health aide, as opposed to a family member, lends support to Claimant's testimony regarding the severity of her symptoms.
The Commissioner suggests evidence of mild findings on diagnostic images, improvement with treatment, the state agency reviewers' opinions, and the prior 2019 decision provide the missing rationale for the ALJ's finding that Claimant's testimony was not entirely consistent with the record. Def.'s Mem. [DE-25] at 15. However, there is evidence in the record, including diagnostic imaging, that Claimant's condition had worsened rather than improved during the relevant period. For example, in February 2020, Dr. Cooper saw Claimant for back and leg pain and noted that an updated MRI showed worsening degenerative disc disease and continued impingement of the L3 and L4 nerve root on the right and lateral L5 nerve root. (R. 507). Additionally, an October 5, 2020 treatment note from pain management stated that Claimant was returning for a repeat lumbar steroid injection after an injection in September 2020, prior diagnostic facet block injections “were not efficacious in treating her pain and discomfort,” she continued to have radiating pain across her back, hips, and thighs, and her most recent imaging studies revealed “multilevel degenerative disc disease and spondylosis with HNPs at ¶ 4-5 and L5-Sl.” (R. 576). The ALJ noted significant positive physical examination findings on multiple occasions. (R. 31-32). Regardless, the ALJ's discussion of the opinion evidence and prior 2019 decision sheds no light on how the ALJ evaluated Claimant's statements regarding her symptoms. The court is unable to trace the ALJ's reasoning in rejecting Claimant's testimony from the decision. See Futch v. Saul, No. 5:19-CV-286-D, 2020 WL 5351603, at *5 (E.D. N.C. Aug. 17,2020) (finding error where the ALJ summarized the evidence in the record over several pages and concluded that Plaintiff's statements about the severity of his symptoms were not entirely consistent with the objective medical evidence without providing a logical explanation, and “the ALJ's unexplained crediting and discrediting of Plaintiff's statements about different issues frustrate[d] meaningful review”), report and recommendation adopted, 2020 WL 5351598 (E.D. N.C. Sept. 4, 2020). Accordingly, it is recommended that the matter be remanded for further consideration of this issue.
B. The Appeals Council's Decision
Claimant contends the Appeals Council failed to properly consider new and material evidence post-dating the ALJ's decision and failed to give sufficient reasons for its conclusions about the relevance of the evidence. Pl.'s Mem. [DE-16] at 17-22. The Commissioner contends that the Appeals Council was not required to provide further reasoning regarding its decision to deny review. Def.'s Mem. [DE-25] at 19-21.
The Appeals Council will review a case if the claimant submits 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.ER. §§ 404.970(a)(5), 416.1470(a)(5); Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 E2d 93, 95 (4th Cir. 1991). The claimant must also show good cause for not timely submitting the evidence to the ALJ. 20 C.ER §§ 404.970(b), 416.1470(b); Hawks v. Berryhill, 2018 WL 6728037, at *4 (M.D. N.C. Dec. 21, 2018). “Evidence is new if it is not duplicative or cumulative, and it is material if there is a ‘reasonable possibility that the new evidence would have changed the outcome of the case.'” Stanley v. Berryhill, No. 7:17-CV-207-FL, 2018 WL 6730552, at *7 (E.D. N.C. Nov. 13, 2018) (quoting Wilkins, 953 E2d at 96), report and recommendation adopted, 2018 WL 6729787 (E.D. N.C. Dec. 21, 2018). New and material evidence “need not have existed during [the relevant] period, but rather must be considered if it has any bearing upon whether the claimant was disabled during the relevant period of time.” Outlaw v. Colvin, No. 5:11-CV-647-FL, 2013 WL 1309372, at * 2 (E.D. N.C. Mar. 28, 2013) (citing Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987)).
Here, the Appeals Council denied Claimant's request for review, (R. 1-7), and, as a result, was not required to make findings of fact or explain its reasoning. See Sutton v. Berryhill, No. 5:17-CV-48-FL(2), 2017 WL 7053966, at *2 (E.D. N.C. Dec. 19, 2017) (holding on a challenge to the Appeals Council's failure to consider additional evidence that “the Appeals Council did not grant review, and therefore, it was not required to explain its reasoning for determining that the evidence submitted after the ALJ's decision did not warrant changing the ALJ's decision.”), report and recommendation adopted, 2018 WL 576847 (E.D. N.C. Jan. 26, 2018). “Only if the Appeals Council grants a request for review and issues its own decision on the merits is the Appeals Council required to make findings of fact and explain its reasoning.” Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (citing 20 C.F.R. §§ 404.979, 404.1527(f)(3)).
Although the Appeals Council was not required to explain its reasoning, the court still must consider whether the evidence submitted to the Appeals Council for the first time was new, material, and relates to the period on or before the date of the ALJ's decision, and whether there is a reasonable probability that the additional evidence would change the outcome of the decision. Wilkins, 953 F.2d at 95. In doing so, the court must “review the record as a whole, including the new evidence, in order to determine whether substantial evidence supports the Secretary's findings.” Id. at 96.
Claimant submitted evidence from Lewiston Medical Center dated January 4,2021 through March 4, 2021 (13 pages) and from Vidant Windsor dated February 17, 2021 (6 pages), which the Appeals Council found did not show a reasonable probability that it would change the outcome of the decision and did not exhibit. (R. 2). Claimant also submitted evidence from Lewiston Medical Center from March 25, 2021 through August 4, 2021 (47 pages); Eastern Radiologists from January 13,2022 (3 pages); Vidant Neurology from September 28,2021 (7 pages); Vidant Windsor from May 27, 2021 through August 4, 2021 (29 pages); Vidant Health dated September 10, 2021 (6 pages); Vidant Patient Outreach Greenville from May 12, 2021 (5 pages); and a medication list from January 20, 2022. Id. The Appeals Council determined this evidence “d[id] not relate to the period at issue” and “did not affect the decision about whether [Claimant was] disabled on or before March 8, 2021,” the date of the ALJ's decision. Id.
Claimant bears the burden of demonstrating that the additional evidence is (1) new, i.e., not duplicative or cumulative of that which is already in the record, (2) material, i.e., would have changed the outcome of the ALJ's decision, and (3) relates to the claimant's medical condition as it existed at the time of the hearing. Alexander v. Astrue, No. 5:09-CV-432-FL, 2010 WL 4668343, at *5 (E.D. N.C. July 19, 2010) (citing 20 C.F.R. §§ 404.970(b), 416.1470(b); Wilkins, 953 F.2d at 96 (citations omitted); Eason v. Astrue, No. 2:07-CV-30-FL, 2008 WL 4108084 (E.D. N.C. Aug. 29, 2008) (citations omitted)), report and recommendation adopted, 2010 WL 4668312 (E.D. N.C. Nov. 5, 2010). Claimant fails to explain with any specificity how the evidence submitted to the Appeals Council was new, material, or relates to Claimant's condition at the time of the hearing. Claimant's general speculation that the records might have impacted the ALJ's decision is insufficient to carry her burden. However, there is arguably some evidence in these records that is relevant to the ALJ's determinations on remand, such as treatment notes recording Claimant's statements regarding her continued reliance on a home health aide and her continued lower extremity pain the doctor found was likely attributable to L4-5 radiculopathy causing a “double crush type phenomena.” (R. 686, 689, 692, 695, 698, 734-36). Therefore, in light of the other issues discussed above that require remand, the ALJ should have the benefit of these records for review. See Howard v. Kijakazi, 5:20-CV-266-RJ, 2022 WL 671449, at *8 (E.D. N.C. Mar. 7,2022) (finding ALJ should consider records submitted to the Appeals Council where they were arguably relevant to the disability determination and other issues required remand).
VI. CONCLUSION
For the reasons stated above, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, [DE-15], Defendant's Motion for Judgment on the Pleadings be denied, [DE-24], and the matter be remanded for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 16, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).