HAWKS v. BERRYHILL
Filing
13
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 12/21/2018. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff' ;s Motion to Reverse the Decision of the Commissioner of Social Security (Docket Entry 9 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be granted, and that this action be dismissed with prejudice. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RODNEY RAY HAWKS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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)
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)
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)
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1:17CV1021
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rodney Ray Hawks, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying Plaintiff’s
claims
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)
Defendant has filed the certified administrative record
(Docket Entry 6 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 9, 11; see also Docket Entry 10
(Plaintiff’s Brief); Docket Entry 12 (Defendant’s Memorandum)).
For the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
March 3, 2014.
(Tr. 192-203.)
Upon denial of those applications
initially (Tr. 80-97, 118-21) and on reconsideration (Tr. 98-117,
126-43),
Plaintiff
requested
a
hearing
de
Administrative Law Judge (“ALJ”) (Tr. 144-45).
novo
before
an
Plaintiff, his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 34-79.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 13-29.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
188-91, 261-62), thereby making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through March 31, 2019.
2.
[Plaintiff] has not engaged in substantial gainful
activity since March 3, 2014, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
type I diabetes with neuropathy.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . in that he could
occasionally lift 50 pounds; frequently lift and carry 10
pounds; sit for six out of eight hours; stand for four
out of eight hours; walk for two out of eight hours; push
and pull as much as he could lift and carry; frequently
use right and left foot controls; frequently use right
and left hand controls; occasionally reach overhead with
both right and left; frequently reach all other
directions with both right and left; frequently handle
2
with both right and left; frequently finger with left;
frequently feel with right and left; occasionally climb
ramps and stairs; never climb ladders, scaffolds, or
ropes; occasionally balance, stoop, kneel, crouch, crawl;
never be exposed to unprotected heights; have occasional
exposure [to] moving mechanical parts; occasional
operation of a motor vehicle; frequent exposure to
weather, humidity, and wetness; occasional exposure to
dust, odors, fumes, and pulmonary irritants; and
occasional exposure to extreme heat, extreme cold,
vibration, and moderate noise. [Plaintiff] cannot read or
write instructions but has the capacity to learn past
jobs through demonstration.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from March 3, 2014, through the
date of this decision.
(Tr.
18-28
(bold
font
and
internal
parenthetical
citations
omitted).)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
3
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ if they are
supported
by
substantial
evidence
and
were
reached
through
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
“Substantial
evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”
Hunter v. Sullivan,
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is
substantial
evidence.”
Hunter,
993
F.2d at
34
(internal
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
4
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).1
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
1
The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
provides benefits to indigent disabled persons. The statutory definitions and
the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).
5
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (“SEP”) has up to five
steps:
“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 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 [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award 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.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
3
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
(continued...)
7
B.
Assignment of Error
Plaintiff’s sole assignment of error contends that “[t]he
Appeals Council failed to properly consider new medical evidence
submitted . . . with [Plaintiff’s] request for review.”
Entry
10
at
2
(bold
font
and
single-spacing
(Docket
omitted).)
In
particular, Plaintiff asserts that he “submitted to the Appeals
Council copies of nerve conduction testing of [Plaintiff’s] upper
extremities performed by Dr. Eric Moser of Mecklenburg Neurological
Associates on September 15, 2016” (“NCS Report”), which showed
evidence of both ulnar and median neuropathy bilaterally.
(Id. at
3 (citing Docket Entry 10-1 at 1).) According to Plaintiff, “there
was no reasonable basis for the Appeals Council to conclude that
[the NCS Report] d[id] not relate to the period on or before the
date of the [ALJ’s] decision.”
(Id. at 4 (referencing Tr. 2).)
Moreover, Plaintiff asserts that the NCS Report qualifies as both
new and material, because the NCS Report “fill[ed] an evidentiary
gap found to be significant by the ALJ” (id. at 6) and “could
change” the result of the ALJ’s decision (id. at 7).
Plaintiff
requests “remand for a rehearing” under “sentence four of 42 U.S.C.
§ 405(g).”
(Id. (emphasis added).)
short.
4
(...continued)
review does not proceed to the next step.”).
8
Plaintiff’s contentions fall
The regulatory provisions governing the Appeals Council’s
consideration of new evidence, 20 C.F.R. §§ 404.970, 416.1470,
changed in 2017. The prior version of those regulations, in effect
until January 16, 2017, provided as follows:
If new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where
it relates to the period on or before the date of the
[ALJ] hearing decision.
The Appeals Council shall
evaluate the entire record including the new and material
evidence submitted if it relates to the period on or
before the date of the [ALJ] hearing decision. It will
then review the case if it finds that the [ALJ’s] action,
findings, or conclusion is contrary to the weight of the
evidence currently of record.
20 C.F.R. §§ 404.970(b), 416.1470(b) (1987) (emphasis added).
The new versions, effective January 17, 2017, with compliance
by
claimants
Uniformity
at
required
the
by
Hearing
May
1,
and
2017,
Appeals
see
Ensuring
Council
Levels
Program
of
the
Administrative Review Process, 81 Fed. Reg. 90987-01, 90987, 2016
WL 7242991 (Dec. 16, 2016), provide as follows:
(a) The Appeals Council will review a case if—
. . .
(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;
9
(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.
20 C.F.R. §§ 404.970, 416.1470 (2017).
Thus, the new regulations
add two requirements to a claimant’s burden to have new evidence
considered for the first time at the Appeals Council level of
review: (1) a requirement that a claimant demonstrate good cause
for the failure to submit the evidence in question at least five
days prior to the ALJ’s decision pursuant to 20 C.F.R. §§ 404.953,
416.1453; and (2) a requirement to show a reasonable probability of
a different outcome.5
In conjunction with the above-described regulatory change, the
Social Security Administration amended its internal procedures
manual to clarify when evidence submitted to the Appeals Council
qualifies as new, material, and related to the period on or before
the ALJ’s decision.
See Hearings, Appeals, and Litigation Law
Manual (“HALLEX”), § I-3-3-6B.2 (“Additional Evidence”) (May 1,
2017), available at https://www.ssa.gov/OP_home/hallex/I-03/I-3-3-
5
Long-standing Fourth Circuit law defined “material” as a reasonable possibility
the new evidence would have changed the outcome of the case.
See Meyer v.
Astrue, 662 F.3d 700, 704 (4th Cir. 2011); Wilkins v. Secretary, Dep’t of Health
& Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Thus, the new versions of
Sections 404.970 and 416.1470 increase a claimant’s burden from showing a
reasonable possibility to a reasonable probability, and make the obligation to
show a reasonable probability of a different outcome an additional requirement
to showing materiality.
10
6.html. According to the HALLEX, evidence submitted to the Appeals
Council is:
C
“new if it is not part of the [administrative
record] as of the date of the [ALJ’s] decision”;
C
“material if it is relevant, i.e., involves or is
directly related to issues adjudicated by the ALJ”;
and
C
“relate[d] to the period on or before the date of
the hearing decision if the evidence is dated on or
before the date of the hearing decision, or . . .
post-dates the hearing decision but is reasonably
related to the time period adjudicated in the
hearing decision.”
HALLEX, § I-3-3-6B.2 (emphasis added).
Plaintiff’s counsel requested review with the Appeals Council
on October 17, 2016.
(Tr. 188-91.)
On December 2, 2016, the
Appeals Council “granted [Plaintiff’s] request for more time before
[the Appeals Council] act[ed] on [Plaintiff’s] case.”
(Tr. 9.)
Thereafter, Plaintiff’s counsel submitted a brief and the NCS
Report to the Appeals Council on December 19, 2016.
(See Tr. 261-
62.) The NCS Report demonstrated “moderate ulnar neuropathy at the
right
elbow
with
evidence
of
some
denervation
in
distally
innervated muscles, moderately severe unlnar neurop[a]thy at the
left elbow with evidence of sensory and motor axonal loss distally,
mild median neuropathy at the left wrist, and very mild median
neuropathy at the right wrist.”
10-1 at 1, 4.)
(Tr. 261; see also Docket Entry
Dr. Moser noted that “th[o]se findings could be
caused by ulnar or median neuropathies, by generalized sensory
11
motor polyneuropathy, or from bilateral C8/T1 radiculopathy.” (Tr.
261; see also Docket Entry 10-1 at 1.)
On March 24, 2017, the Appeals Council provided Plaintiff with
advanced notice of the regulatory change and an opportunity to
submit additional evidence and argument directed at demonstrating
a reasonable probability of a different outcome.
(See Tr. 7-8)
that
recognized
notice,
the
Appeals
Council
expressly
In
that
Plaintiff could not retroactively comply with the new requirement
that, absent good cause, claimants must submit evidence at least
five days before the ALJ’s hearing, and waived the requirement that
Plaintiff demonstrate good cause.
(See Tr. 8.)
Plaintiff did not
submit additional argument or evidence after that notice.
The Appeals Council denied Plaintiff’s request for review on
September 12, 2017, remarking as follows:
[Plaintiff] submitted [the NCS Report] (5 pages). The
[ALJ] decided [Plaintiff’s] case through August 19, 2016.
This additional evidence does not relate to the period at
issue. Therefore, it does not affect the decision about
whether [Plaintiff] w[as] disabled beginning on or before
August 19, 2016.
(Tr. 2.)
The Appeals Council exhibited Plaintiff’s request for
review and supporting brief, but did not incorporate the NCS Report
into the administrative record, and further advised Plaintiff that,
“[i]f
[he]
want[ed
the
Commissioner]
to
consider
whether
[Plaintiff] w[as] disabled after August 19, 2016, [he] need[ed] to
apply [for benefits] again.”
(Tr. 5.)
12
Plaintiff requests a remand under sentence four of 42 U.S.C.
§ 405(g) (see Docket Entry 10 at 7) on the grounds that “there was
no reasonable basis for the Appeals Council to conclude that [the
NCS Report] d[id] not relate to the period on or before the date of
the [ALJ’s] decision” (id. at 4).6
As an initial matter, doubt
exists whether this Court possesses the authority to scrutinize the
Appeals Council’s decision not to incorporate the NCS Report into
the administrative record and/or to deny Plaintiff’s request for
review. Section 405(g) grants this Court the “power to enter, upon
the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the [final] decision of the Commissioner
[], with or without remanding the cause for a rehearing,” 42 U.S.C.
§ 405(g).
However, “when the [Appeals] Council has refused to
review the case[,] . . . the decision reviewed in the [federal
district] courts is the decision of the [ALJ].”
Eads v. Secretary
of Health & Human Servs., 983 F.2d 815, 817 (7th Cir. 1993)
6
In so doing, Plaintiff does not argue that the NCS Report, when considered as
part of the administrative record as a whole, renders the ALJ’s decision
unsupported by substantial evidence. (See Docket Entry 10 at 2-7). Nor could
Plaintiff do so, because, as discussed above, the Appeals Council here declined
to incorporate the NCS Report into the administrative record (see Tr. 5) and,
under sentence four of Section 405(g), the Court must limit its review to the
certified administrative record, see Wilkins v. Secretary, Dep’t of Health &
Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (“Reviewing courts are restricted
to the administrative record in performing their limited function of determining
whether the [Commissioner’s] decision is supported by substantial evidence.”
(quoting Huckabee v. Richardson, 468 F.2d 1380, 1381 (4th Cir.1972))); see also
Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012) (“Evidence that has been
rejected by the Appeals Council cannot be considered to reevaluate the ALJ’s
factual findings.”); Will v. Colvin, No. 3:14-CV-00754-JE, 2016 WL 3450842, at
*9 (D. Or. May 18, 2016) (unpublished) (holding that “the [c]ourt is precluded
from reviewing the unincorporated evidence for substantial evidence of disability
under ‘sentence four’ of 42 U.S.C. § 405(g)”), recommendation adopted, No.
3:14-CV-00754-JE, 2016 WL 3457017 (D. Or. June 20, 2016) (unpublished).
13
(emphasis added).
In other words, “[n]o statutory authority (the
source of the district court’s review) authorizes the court to
review the Appeals Council[’s] decision to deny review.”
Matthews
v. Apfel, 239 F.3d 589, 593, 594 (3d Cir. 2001).
Even if this Court possessed the statutory power to review the
Appeals Council’s decision declining to incorporate the NCS Report
and/or to deny review,7 no basis exists for a sentence four remand.
Here, the Appeals Council waived the requirement that Plaintiff
show good cause for failure to submit the NCS Report to the ALJ
prior to the hearing (see Tr. 8), and the NCS Report undoubtedly
qualifies as “new,” as it did not exist at the time of the ALJ’s
decision and the administrative record contains no other nerve
conduction
studies.8
Moreover,
the
NCS
Report
qualifies
as
7
The undersigned could not find any decisions from the United States Court of
Appeals for the Fourth Circuit specifically addressing whether district courts
have the authority to review the Appeals Council’s decision not to incorporate
new evidence into the administrative record. However, decisions exist in other
circuits which hold that, under the prior versions of 20 C.F.R. §§ 404.970,
416.1470, federal district courts may review de novo legal errors by the Appeals
Council in applying its own regulations. See Getch v. Astrue, 539 F.3d 473, 483
(7th Cir. 2008) (noting that the court would “evaluate de novo whether the
Appeals Council made an error of law in applying [20 C.F.R. §§ 404.970(b),
416.1470(b)]”); Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001) (“holding that an
Appeals Council refusal to review the ALJ may be reviewable where it gives an
egregiously mistaken ground for this action”); Box v. Shalala, 52 F.3d 168,
171–72 (8th Cir. 1995) (“Whether the evidence is new, material and related to the
relevant period is a question of law reviewed de novo.”); see also Ledbetter v.
Astrue, No. 8:10-CV-00195-JDA, 2011 WL 1335840, at *13 n.7 (D.S.C. Apr. 7, 2011)
(“[G]enerally, the [Appeals] Council’s decision whether to review is
discretionary and unreviewable. But review of the [Appeals] Council’s decision
is allowed in the presence of legal error.” (internal citations omitted) (relying
on, inter alia, Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997), Mills,
and Box).
8
Indeed, in finding Plaintiff’s CTS a non-severe impairment at step two of the
SEP, the ALJ noted that, “[a]lthough [Plaintiff] indicated that he had nerve
conduction studies that supported he had [CTS] and he was allowed to submit
supporting records, the records provided do not include any nerve conduction
(continued...)
14
material,
because
it
gauged
extremity
neuropathies,
the
matters
extent
of
“directly
Plaintiff’s
related
to
upper
issues
adjudicated by the ALJ,” HALLEX, § I-3-3-6B.2.
A more difficult question arises, however, as to whether the
NCS Report relates to the period on or before the ALJ’s decision.
On the one hand, the Fourth Circuit has held that courts should
consider
newly
produced
medical
evidence
that
post-dates
a
claimant’s date last insured for DIB purposes, if a linkage exists
between
the
produced
earlier
evidence
relevant
that
medical
“‘reflect[s
]
evidence
a
and
possible
the
newly
earlier
and
progressive degeneration,’” Bird v. Commissioner of Soc. Sec.
Admin., 699 F.3d 337, 341 (4th Cir. 2012) (quoting Wooldridge v.
Bowen, 816 F.2d 157, 160 (4th Cir. 1987)). Some district courts in
the Fourth Circuit have applied Bird to find that the Appeals
Council should consider evidence that post-dates the ALJ’s decision
when such evidence “reflect[s ] a possible earlier and progressive
degeneration,” Bird, 699 F.3d at 341-42 (quotation marks omitted).
See,
e.g.,
Briggs
v.
Berryhill,
No.
4:16-CV-240-FL,
2017
WL
4230584, at *6 (E.D.N.C. Aug. 30, 2017) (unpublished) (holding that
“evidence submitted to the Appeals Council that post-dated the
ALJ’s decision by two months required consideration, because the
record is not so persuasive as to rule out any linkage of the final
condition
of the
claimant with
8
(...continued)
studies.” (Tr. 19 (citing Tr. 404-44).)
15
his
earlier
symptoms
and
the
evidence could be the most cogent proof of plaintiff's pre-decision
disability” (internal quotation marks omitted) (relying on Bird)),
recommendation adopted, 2017 WL 4226040 (E.D.N.C. Sept. 22, 2017)
(unpublished).
Thus, Plaintiff argues that “the medical evidence
of record establishes that [he] exhibited significant neuropathy
symptoms before” the ALJ’s decision, and that “nothing in the
medical evidence . . . suggest[s] that [Plaintiff’s] neuropathy
symptoms suddenly manifested one month after the date of the
hearing decision.”
(Docket Entry 10 at 4; see also Docket Entry
10-1 at 2 (NCS Report’s “Patient History” section reflecting that
Plaintiff “present[ed] with a long history of neck pain, bilateral
radiating
arm
pain
and
numbness
and
tingling
in
the
hands
bilaterally, left greater than right” and that “[h]is symptoms
[we]re worsening with time” (emphasis added)).)
On the other hand, the NCS Report neither references treatment
records or testing results preceding the ALJ’s decision, nor
provides any opinion on how long Plaintiff experienced bilateral
ulnar and median neuropathies at the level of severity shown on the
NCS Report.
(See Docket Entry 10-1.)
Such omissions would tend to
dispel any required linkage between the NCS Report and Plaintiff’s
condition on or before the ALJ’s decision.
See Kiser v. Colvin,
No. 1:14CV325-RJC-DSC, 2015 WL 12762258, at *4 (W.D.N.C. Oct. 13,
2015)
(unpublished)
(“Both
[doctors’
opinions]
describe
p]laintiff’s condition as of the time they were written.
16
[the
There is
no indication that the doctors’ opinions were meant to apply
retroactively.
Therefore, there is no connection between this new
evidence and the period of time under consideration by the ALJ.”
(internal
citation omitted)),
recommendation
adopted,
2016
WL
884690 (W.D.N.C. Mar. 8, 2016) (unpublished); Jones v. Astrue, No.
4:11-CV-146-FL, 2012 WL 3822204, at *2 (E.D.N.C. June 5, 2012)
(unpublished) (“The [new] records contain no references to prior
treatment records. Moreover, the records provide no information as
to
how
[the
p]laintiff’s
symptoms
affected
her
work-related
abilities during the relevant time.”), recommendation adopted, 2012
WL 3834924 (E.D.N.C. Sept. 4, 2012) (unpublished).
The Court need not resolve that issue, however, because even
if the Appeals Council erred by finding that the NCS Report did not
relate to the period before the ALJ, any such error qualifies as
harmless under the circumstances of this case.
See generally
Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle
of administrative law or common sense requires us to remand a
[Social Security] case in quest of a perfect opinion unless there
is reason to believe that the remand might lead to a different
result.”).
Here, Plaintiff has not demonstrated that the NCS
Report raises a reasonable probability of a different outcome.
Despite the Appeals Council’s invitation to Plaintiff to
submit argument regarding whether new evidence raised a reasonable
probability of a different result (see Tr. 8), Plaintiff did not
17
submit any such argument to the Appeals Council.
Moreover, in the
Brief in support of his instant Motion, Plaintiff merely contends
that the NCS Report “may influence the ALJ to change the [RFC]
assessment” from frequent to occasional hand controls, handling,
fingering, and feeling, which the VE testified would eliminate
competitive employment (Docket Entry 10 at 6 (citing Tr. 75-76)
(emphasis added)) and that, if the ALJ considered the NCS Report,
“the outcome of the hearing decision could change” (id. at 7
(emphasis added).)
Plaintiff’s argument that the NCS Report “may”
or “could” change the outcome amounts to arguing that the NCS
Report raises a reasonable possibility of a different result, which
no longer represents the governing standard.
Furthermore, Dr. Moser noted that the findings on the NCS
Report
“can
be
seen
in
cases
of
both
[u]lnar
and
[m]edian
neuropathies bilaterally, or from a generalized sensory motor
polyneuropathy, or from bilateral C8/T1 radiculopathy” (Docket
Entry 10-1 at 1 (emphasis added)) and, thus, the NCS Report
contains no definitive diagnoses.
To the extent sensory motor
polyneuropathy remained a possible diagnosis, the ALJ recognized
that, “[i]n
assessed
April,
with
May,
upper
June
and
and
lower
July
2015,
extremity
[Plaintiff]
sensory
was
motor
polyneuropathy and diabetic peripheral neuropathy (see Tr. 23; see
also Tr. 415, 417, 420, 423), and the ALJ found Plaintiff’s
diabetic neuropathy a severe impairment at step two (see Tr. 18).
18
Regarding Plaintiff’s CTS in particular, the NCS Report does not
mention (much less diagnose) CTS, and the Report’s findings of
“mild” and “very mild” median neuropathies would confirm rather
than contradict the ALJ’s finding that Plaintiff’s CTS constituted
a non-severe impairment (see Tr. 18).
(Docket Entry 10-1.)
Lastly, the NCS Report merely reflects possible neurological
diagnoses and proffers no functional limitations arising out of
such conditions. Under such circumstances, Plaintiff has not shown
a reasonable probability that the ALJ’s consideration of the NCS
Report would have resulted in his limiting Plaintiff to only
occasional manual activities and, ultimately, a favorable finding
at step five of the SEP.
Jones, 2012 WL 3822204, at *2 (holding
new evidence failed to raise reasonable probability of a different
outcome, in part, because “the[ new] records provide no information
whatsoever regarding [the p]laintiff’s functional limitations”).
In sum, no basis exists to remand this matter based on the NCS
Report under sentence four of 20 U.S.C. § 405(g).9
9
Plaintiff does not seek remand under sentence six of Section 405(g) based on
the NCS Report.
See generally Brown v. Colvin, No. 7:14-CV-283-D, 2015 WL
7307320, at *6 (E.D.N.C. Oct. 27, 2015) (unpublished) (“To the extent that . .
. the additional evidence . . . remains outside the record, . . . this evidence
is appropriately treated as having been submitted for the first time to th[e]
court and therefore as being subject to sentence six of 42 U.S.C. § 405(g)”
(emphasis added)), recommendation adopted, 2015 WL 7306453 (E.D.N.C. Nov. 19,
2015) (unpublished); Hamm v. Colvin, No. 4:13-CV-00059, 2015 WL 225408, at *5
(W.D. Va. Jan. 16, 2015) (unpublished) (“Courts in this [d]istrict review
additional evidence returned [by the Appeals Council] to a claimant under
sentence six of 42 U.S.C. § 405(g) to determine whether remand is required.”
(emphasis added)); Lavigne ex rel. F.L. v. Barnhart, No. CIV.A. 705CV00043, 2006
WL 318610, at *8 (W.D. Va. Feb. 8, 2006) (unpublished) (“Sentence six applies
specifically to evidence not incorporated into the record by either the ALJ or
the Appeals Council.” (emphasis added)).
19
III.
CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion to
Reverse the Decision of the Commissioner of Social Security (Docket
Entry 9) be denied, that Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 11) be granted, and that this action be
dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 21, 2018
20
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