MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
Plaintiff Pamela Clontz ("Plaintiff") brought this action pursuant to Section 205(g) of the Social Security Act (the "Act"), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits ("DIB") under Title II of the Act. The parties have filed cross-motions for judgment, and the administrative record has been certified to the Court for review.
Plaintiff protectively filed her application for DIB on May 30, 2013, alleging a disability onset date of May 30, 2012. (Tr. at 14, 137-43.)
The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the Act. (Tr. at 21.) On May 23, 2016, the Appeals Council denied Plaintiff's request for review of the decision, thereby making the ALJ's conclusion the Commissioner's final decision for purposes of judicial review. (Tr. at 1-5.)
Federal law "authorizes judicial review of the Social Security Commissioner's denial of social security benefits."
"Substantial evidence means `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
"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 [ALJ]."
In undertaking this limited review, the Court notes that in administrative proceedings, "[a] claimant for disability benefits bears the burden of proving a disability."
"The Commissioner uses a five-step process to evaluate disability claims."
A finding adverse to the claimant at any of several points in this five-step sequence forecloses a disability designation and ends the inquiry. For example, "[t]he first step determines whether the claimant is engaged in `substantial gainful activity.' If the claimant is working, benefits are denied. The second step determines if the claimant is `severely' disabled. If not, benefits are denied."
On the other hand, if a claimant carries his or her burden at each of the first two steps, and establishes at step three that the impairment "equals or exceeds in severity one or more of the impairments listed in Appendix I of the regulations," then "the claimant is disabled."
In the present case, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" since February 28, 2012, her amended alleged onset date. Plaintiff therefore met her burden at step one of the sequential evaluation process. At step two, the ALJ further determined that Plaintiff suffered from one severe impairment: "chronic pain status post meningitis." (Tr. at 16.) The ALJ found at step three that this impairment failed to meet or equal a disability listing. Therefore, the ALJ assessed Plaintiff's RFC and determined that she could perform medium work with additional postural, environmental, and mental limitations. (Tr. at 17.) Based on this determination and the testimony of a vocational expert, the ALJ determined at step four of the analysis that Plaintiff was unable to perform any of her past relevant work. (Tr. at 20.) However, the ALJ found at step five that, given Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert as to these factors, she could perform other jobs available in the national economy. (Tr. at 20-21.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr. at 21.)
Plaintiff now contends that, in making his RFC assessment, the ALJ (1) failed to perform a function-by-function assessment of Plaintiff's work-related abilities in accordance with the Fourth Circuit's recent decision in
A. New and Material Evidence Submitted to Appeals Council
On March 24, 2016, two months after the ALJ issued his January 29, 2016 decision, Plaintiff submitted to the Appeals Council an opinion letter authored by her long-time treating physician, Dr. Joel Edwards. Plaintiff contends that the Appeals Council erred in failing to grant review based on this new evidence. In deciding whether to grant review, the Appeals Council must consider additional evidence submitted with the request if "the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision."
Here, the Appeals Council determined that Plaintiff's case had been decided through her date last insured of June 30, 2013, and that Dr. Edwards' letter "is about a later time" and therefore did "not affect the decision about whether [Plaintiff was] disabled" as of her date last insured. (Tr. at 2.) However, Plaintiff contends that Dr. Edwards' letter relates to the period prior to the ALJ decision and prior to the date last insured. Plaintiff notes that Dr. Edwards was her primary care physician for over 30 years and saw her numerous times following her hospitalization for meningitis in February 2012. Dr. Edwards' letter is addressed to Plaintiff's counsel and states:
(Tr. at 7.)
The Commissioner contends that this letter reflects only Plaintiff's lifting and standing limitations as of March, 24, 2016, the date of the letter. However, the letter points to Plaintiff's February 2012 meningitis diagnosis as the starting point for her declining health, and states that "[u]ntil her bout with viral meningitis for which she was hospitalized on February 29, 2012, she was a vigorous, hard working woman. Since that time, she has been plagued by multiple medical issues including ataxia, muscle weakness, generalized pain, suspected rheumatoid arthritis, severe headaches, weakness and chronic pain." Thus, the letter itself directly speaks to Plaintiff's condition since February 2012, and by its terms includes the period prior to the date of the ALJ's decision. Notably, the letter further states that Dr. Edwards had "witnessed this lady progress from a vigorous, highly productive individual to a state where she has difficulty even preparing a single meal, much less doing her housework without prolonged periods of rest between intervals of light work no more than 10 minutes." This language is also reflected in Dr. Edwards' treatment notes from the time period prior to the date last insured, in which Dr. Edwards noted on March 14, 2013 that "she has gone from a vigorous working woman to actually having difficulty getting out of the house" (Tr. at 333) and on December 12, 2012 that "[b]asically all year, she has been out of work due to her generalized muscle aches and pains" and feeling like she "ha[s] the flu" (Tr. at 341). Thus, contrary to the Appeals Council determination, the letter does not solely relate to a "later time."
The Commissioner also contends that the letter is not "new" evidence under sentence six of 42 U.S.C. § 405(g) because Plaintiff failed to show good cause for not obtaining the letter earlier. However, sentence six of 42 U.S.C. § 405(g) provides for remand
Finally, the Commissioner contends that the letter from Dr. Edwards is not material, because it did not relate to the time period prior to June 30, 2013, the date last insured. However, as discussed above, the letter by its own terms clearly relates to the time period prior to the date last insured. In addition, the Fourth Circuit has specifically addressed the consideration of retrospective evidence created after the date last insured:
Moreover, the opinion from Plaintiff's long-time treating physician is material in this case, given that the primary basis for the ALJ's determination appears to be the opinion of the non-examining state agency physician. In this regard, the Court notes that the ALJ's decision includes a brief summary of portions of the medical record, and then without explanation concludes that the "objective medical evidence of record supports a finding that [Plaintiff] can perform a range of medium work." (Tr. at 19.) The ALJ then states that he gave significant weight to the opinion of the state agency medical consultant Dr. Jimenez-Medina. (Tr. at 19.) Thus, the apparent basis for the ALJ's conclusion is the analysis of Dr. Jimenez-Medina. However, Dr. Edwards is Plaintiff's treating physician and provides a contrary view that instead confirms Plaintiff's testimony and her husband's lay observations.
In addition, Dr. Edwards' letter also confirms and further details his view of Plaintiff's subjective complaints reflected in his treatment records from March 2012 through the date last insured. This is particularly important because, as noted by Plaintiff, the ALJ's decision itself fails to include any discussion of those treatment records. For example, the ALJ's decision does not include any mention of Dr. Edwards' treatment of Plaintiff from the February 2012 onset date through April 2013. During that time, Dr. Edwards' treatment notes reflect that Plaintiff saw Dr. Edwards in March 2012 for a sporadic headache, neck pain, and fatigue that she had been experiencing since she was released from her hospitalization for viral meningitis a few weeks earlier (Tr. at 355); treatment in July 2012 for headaches, "all joints and muscles hurt since having meningitis" and "constantly fatigued, no energy, her feet and hands tend to swell, her joints hurt, muscles hurt" dating "most of her symptoms back to in the winter when she had meningitis" (Tr. at 352); in August 2012 when her arthralgias and myalgias were "[n]o better, no worse" (Tr. at 351); in November 2012 for "perceived decrease in coordination" and "a good bit of pain in the neck and back of her head" and "[d]iscomfort in her arms when she reaches up and behind" (Tr. at 346); in December 2012 for "chronic muscle and joint pain," headaches, and feeling like she has the flu, with a notation that "[b]asically all year, she has been out of work due to her generalized muscles aches and pains" (Tr. at 341); and in March 2013 for "chronic joint pain" since her meningitis that has left her "having difficulty getting out of the house" (Tr. at 333-35). None of these records were addressed or even mentioned in the ALJ's decision. The ALJ also failed to include any mention of Dr. Edwards' treatment notes from 2014. Those records reflect "pain, some weakness, fatigue [and] frequent falls" in March 2014 (Tr. at 507); symptoms that "remained unchanged or are gradually worsening with pain, weakness and instability" also in March 2014 (Tr. at 567); and a notation in November 2014 that "it has been nearly 3 years since she had meningitis and has not really been able to go back to work since that time" (Tr. at 684). The records from the Nurse Practitioner in Dr. Edwards' office, also not mentioned by the ALJ, reflect that in March 2015, Plaintiff was "Positive for back pain (from arthritis — no change)" and "Positive for dizziness and headaches" (Tr. at 1079); in April 2015 was positive for back pain, joint pain, and muscle cramps in legs and hands (Tr. at 1213); in July 2015 was positive for headaches, arthralgias, back pain and neck pain (Tr. at 1583); and in November 2015 was positive for dizziness and headaches and arthralgias (Tr. at 1902). Thus, the treatment records from Dr. Edwards office reflect continued symptoms from March 2012 through November 2015 but were not addressed in the ALJ's decision.
Moreover, the Court also notes that the records that were addressed by the ALJ were only cited in part and in some cases were inaccurately cited. For example, the ALJ noted that Plaintiff's January 2013 hematology workup was negative for underlying bone marrow disease (Tr. at 18), but the ALJ did not note her secondary erythrocytosis and leukocytosis reflected in those labs (Tr. at 303, 306). Similarly, the ALJ noted that Plaintiff's brain MRI in April 2013 was normal (Tr. at 18), but did not note that the MRI showed "paranasal sinus disease with involvement of the right frontal, ethmoid and maxillary sinuses" which "usually indicates obstruction at the level of the middle meatus of the nose" (Tr. at 318).
Similar issues persist in the summary of the records even after the date last insured. For example, the ALJ states that in November 2013, Plaintiff started oxycontin for her pain, which "provided adequate pain relief" (Tr. at 19). However, the ALJ did not note that Plaintiff stopped the oxycontin one month later due to side effects. (Tr. at 761.) The ALJ also noted that in July, August and September 2015, Plaintiff was increasing her workload and working on aerobic and muscle strengthening exercises. However, those records reflect that Plaintiff required a cane to walk, had physical limitations due to balance issues and pain since her meningitis, and that she was walking on a treadmill at no incline at a pace of 1 or 2 miles per hour and then sitting for chair aerobics or lifting 2 or 3 pound weights at a hospital rehabilitation facility (Tr. at 1308, 1383, 1396, 1405, 1411, 1451, 1457, 1515, 1534, 1629, 1649, 1656).
With respect to these issues, the Fourth Circuit has recently noted that "[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding."
In the circumstances, the Court concludes that Dr. Edwards' letter is material to the disability determination and should be considered, along with a full review of the record with sufficient analysis to allow for meaningful review. Therefore, the Court concludes that this matter should be remanded to the ALJ for further proceedings and consideration of all of the relevant evidence.
IT IS THEREFORE RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings [Doc. #13] should be DENIED, and Plaintiff's Motion for Judgment Reversing the Commissioner [Doc. #11] should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED.