BETHEA v. COLVIN

Filing 13

ORDER REMANDING CASE TO THE COMMISSIONER - The Commissioner's decision is REVERSED and REMANDED for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The clerk shall enter judgment stating: "The Commissioner's decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). Signed by SENIOR JUDGE WILLIAM STAFFORD on 3/21/2017. (tdl)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

CAROLYN BETHEA,
Plaintiff,
v.
4:16cv335–WS/CAS
NANCY A. BERRYHILL, Acting
Commissioner, Social
Security Administration,
Defendant.

ORDER REMANDING CASE TO THE COMMISSIONER
Before the court is the magistrate judge's report and recommendation (doc.
11) docketed December 29, 2016. The magistrate judge recommends that the
Commissioner's decision to deny Plaintiff’s application for benefits be affirmed.
Plaintiff has filed objections (doc. 12) to the report and recommendation. Upon
review of the entire record, this court has determined that the Commissioner’s
decision denying Plaintiff’s application for benefits must be reversed and the case
remanded to the Commissioner for further proceedings.
The record establishes that Plaintiff had a multi-year history of back pain.

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Her back trouble began soon after she started working as a distribution clerk with
the United States Postal Service, a job she began in 2000 and that required her to
lift heavy tubs of mail. She sought medical intervention for her back pain as early
as 2002, when a CT scan of the back “demonstrated significant severe changes
consistent with her symptoms of low back pain and pain in her buttocks and legs
with an element of spinal stenosis.” AR 402. Conservative treatment—physical
therapy, injections, massage therapy, chiropractic treatment, and medicines—did
not give her long-term relief. In 2006, her primary care doctor, Dr. Corpuz, began
treating her for pain resulting from spinal stenosis. AR 840. In 2010, an MRI of
Plaintiff’s lumbar spine revealed degenerative disc disease at L2–3 and L3–4 and
degenreative facet disease at L4–5 and L5–1. AR 581–83. Throughout 2012 and
2013, she was treated by doctors—including Dr. Sofi—at the Premier Medical
Clinic (“Premier”) for treatment of low back and hip pain, among other things. AR
591–604. On her multiple visits to Premier, Plaintiff was often seen by a nurse
practitioner who noted that “[t]reatment concurred with Dr. Sofi.” AR 593, 598,
602, 603.
On April 30, 2013, Plaintiff retired from the Postal Service because she felt
she could no longer do the job due to debilitating pain. On July 7, 2013, she filed
an application for a period of disability and disability insurance benefits (“DIB”),

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alleging disability beginning on April 30, 2013. After a hearing, an administrative
law judge (“ALJ”) denied Plaintiff’s application for DIB, concluding that Plaintiff
was not disabled from April 30, 2013, through the date of her decision, November
24, 2015. On April 12, 2016, the Appeals Council denied Plaintiff’s request for
review of the ALJ’s decision.
In concluding that Plaintiff was not disabled, the ALJ gave only partial
weight to the opinion of Plaintiff’s long-term treating physician, Dr. Corpuz. Dr.
Corpuz began treating Plaintiff in 2006 and, on January 7, 2014, noted as follows:
I have been following Ms. Bethea since 09/29/2006 for generalized
degenerative joint disease and spinal stenosis among other things. Her
symptoms include pain affecting her feet, hips, shoulders, and low
back. She has progressively gotten worse such that she had to retire
from post office work on 04/30/2013. Because of her impairment
noted above, it is medically necessary for Ms. Bethea to rest, recline,
or lie down several times a day.
AR 840.1
The ALJ also gave only partial weight to the opinion of Dr. Sofi, who the
ALJ mistakenly said “does not have a treating relationship with the claimant.” AR
79. In fact, as previously noted, Plaintiff began a multi-year treating relationship
with Dr. Sofi’s clinic—Premier Medical Clinic—starting as early as January 2012.

1

At the hearing before the ALJ, a vocational expert opined that if a claimant
were required to rest, recline, or lie down several times a day for 10 to 15 minutes
at unpredictable times, she would be unemployable.

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AR 1, 591–02, 878–83, 911–21, 943–47. On September 24, 2013, Dr. Sofi opined
as follows:
Patient is here for disability physical. Patient is not able to work
anymore because of her worsening back pain which radiates down
into the legs. Patient had trouble with her back for a long period of
time, but it has gotten worse to an extent where she is not able to
work. The pain gets worse on standing for a long period of time, on
lifting anything or bending. Patient is having trouble with pain at
other joints. She gets swelling of the legs off and on.
AR 786.
The ALJ gave great weight to the opinion of a state agency non-examining
consultant—Dr. Baltazar, M.D.—because Dr. Baltazar has “extensive program
knowledge related to disability.” AR 79. Having never seen Plaintiff, Dr. Baltazar
opined on January 8, 2014, nearly two years before the ALJ issued her decision on
November 24, 2015, that Plaintiff was “not disabled.” AR 152.
Plaintiff continued to seek medical intervention for back pain throughout the
time her application for benefits was being considered by the ALJ. On February 8,
2016, little more than two months after the ALJ’s November 24, 2015, decision,
Plaintiff was seen at the Laser Spine Institute (the “Institute”) in Tampa, Florida,
for low-back, mid-back, wrap-around, leg, and foot pain. At that time, Plaintiff
denied any recent trauma or injury. Doctors at the Institute reviewed Plaintiff’s
medical reports—including a June 2014 MRI/CT report and X-rays dated February

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8, 2016—and concluded that Plaintiff was a possible surgical candidate. An
updated lumbar MRI as well as additional X-rays were ordered to verify Plaintiff’s
current condition. AR 27–30.
A lumbar MRI dated March 7, 2016, and X-rays dated that same day,
confirmed that Plaintiff suffered from scoliosis, L5 spondylolysis, and “multilevel
degenerative disc disease most pronounced at L2–L3 and L3–L4.” AR 47–48. At
the Institute on March 8, 2016, Plaintiff met with Dr. Glenn Fuoco, D.O., who
advised her about the March 7 test results and discussed options and expected
outcomes. Plaintiff opted for surgery, which was performed on April 1, 2016. AR
36–56. At a post-operative appointment on April 15, 2016, Plaintiff reported that
she had no back or neck pain and was feeling “wonderful.” AR 1.
Although records of Plaintiff’s treatment at the Institute post-dated the ALJ’s
consideration of Plaintiff’s case, those records were submitted to the Appeals
Council for its consideration. As to those records, the Appeals Council concluded:
“This new information is about a later time. Therefore, it does not affect the
decision about whether you were disabled beginning on or before November 24,
2015.” AR 15.
A social security claimant is permitted to present new evidence at each state
of the administrative process, including before the Appeals Council. Ingram v.

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Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007). In fact, the
Appeals Council “must consider new, material, and chronologically relevant
evidence” that the claimant submits. Id. The new evidence is “material” if “there is
a reasonable possibility that [it] would change the administrative outcome.” Hyde v.
Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (citations omitted). The new evidence is
“chronologically relevant” if “it relates to the period on or before the date of the
[ALJ] hearing decision.” Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553 (11th
Cir. 2016). Whether evidence meets the new, material, and chronologically relevant
standard is a question of law subject to de novo review. Washington v. Soc. Sec.
Admin., 806 F.3d 1317, 1321 (11th Cir. 2015). When the Appeals Council fails to
consider evidence that is new, material, and chronologically relevant, it commits
legal error and remand is appropriate. Id.
The Appeal Council in this case determined that Plaintiff’s “new
information” was about a “later time”—i.e., it was not chronologically
relevant—and so would not affect the decision about whether Plaintiff was disabled
during the relevant period. The Eleventh Circuit, however, has recognized “that
medical opinions based on treatment occurring after the date of the ALJ’s decision
may be chronologically relevant.” Id. at 1322; see also Wilson v. Colvin, No.
4:15cv641–TMP, 2016 WL 4447442, at *7 (N.D. Ala. Aug. 24, 2016) (“Newly

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submitted information, even information from a later date, can be chronologically
relevant if it helps shed light on the claimant's condition as it existed during the
relevant time period.”). Here, the Institute’s evaluation of Plaintiff in early
2016—and its conclusion that Plaintiff’s condition was not the result of recent
trauma and/or injury—“shed light” on a condition that long pre-dated the Institute’s
involvement, lending credence both to Plaintiff’s complaints of debilitating pain
during the relevant period and to her treating physician’s opinions—those of both
Dr. Corpuz and Dr. Sofi—about her inability to work during the relevant period.
Because this court finds that the Appeals Council erred in rejecting Plaintiff’s new
evidence because it was not chronologically relevant, the matter will be remanded
to the Commissioner for further consideration. Although concluding that remand is
warranted, this court expresses no opinion as to the ultimate disability issue.2
Accordingly, it is ORDERED:
1. The Commissioner’s decision is REVERSED and REMANDED for
further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
2. The clerk shall enter judgment stating: “The Commissioner’s decision is

2

The court has not addressed all of the issues raised by Plaintiff in her
objections to the magistrate judge’s report and recommendation. The court expects
that the Commissioner will consider Plaintiff’s arguments as to those issues on
remand.

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REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).”
DONE AND ORDERED this

21st

day of

March

, 2017.

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE