Negus v. Astrue
Filing
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MEMORANDUM OPINION. In light of the new and material evidence submitted to the Appeals Council, Commissioners final decision was not substantially supported. Remand for further consideration of the new evidence by either the Appeals Council or the ALJ is warranted. The decision of the Administrative Law Judge is hereby REMANDED for further review. Signed by Magistrate Judge Amos L. Mazzant on 3/27/2014. (kls, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RUBY NEGUS
V.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
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CASE NO. 4:12-CV-643
(Judge Mazzant)
MEMORANDUM OPINION
Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of a final decision
of the Commissioner denying her claim for disability insurance benefits. After carefully reviewing
the briefs submitted by the parties, as well as the evidence contained in the administrative record,
the Court finds that the Commissioner's decision should be remanded.
HISTORY OF THE CASE
Plaintiff filed her application for disability insurance benefits under Title II of the Social
Security Act on August 12, 2010, alleging disability beginning on November 27, 2009, due to
multiple mental and physical problems (TR 150-151, 175). This application was denied initially by
notice and upon reconsideration, after which the claimant timely requested a hearing before an ALJ.
After holding a hearing on September 27, 2011, the ALJ denied benefits on January 27, 2012 (TR
31-47, 34-43). A request for review to the Appeals Council was denied on July 31, 2012, making
the decision of the ALJ the final decision of the Commissioner leading to judicial review (TR 7-12).
STATEMENT OF THE FACTS
Plaintiff was born on September 29, 1980, making her a 29-year-old female at the time of
her onset date and 31 years old at the time of the final administrative decision (TR 41, 150).
At the administrative hearing Plaintiff testified that she was injured while serving in the Air
Force (TR 53). She stated that things like breathing too deeply, walking up stairs, or lifting more
than five pounds caused her to experience pain (TR 55). Plaintiff stated that the military placed
her on complete medical restriction and bed rest (TR 56). Plaintiff testified that her impairments
had continued to worsen and that she continued to experience chronic pain (TR 54, 59). She was
anxious and depressed all the time and suicidal at a few points (TR 54, 59). She testified that she
had severe pain in her legs, back, and chest daily (TR 63). She also experienced three to four
migraines each week where she had to lie down for relief (TR 63). Plaintiff stated that while sitting
or standing, her feet would swell and she experienced pain in her hands so severe that she could not
bend her fingers (TR 63-64). She stated that the pain lasted for hours at a time and was occasionally
so severe that she was hospitalized (TR 64). Plaintiff further stated that when she stood for longer
than five minutes her legs swelled and changed color and temperature (TR 75). Also, her back began
to hurt and she felt dizzy (TR 75). She used a shower seat because she is unable to stand for the
duration of the shower (TR 76).
Plaintiff also testified that her depression caused constant racing thoughts, and she was
anxious all the time (TR 68-69). She stated that she suffered long periods of deep depression and
was constantly fatigued (TR 69). She further stated that concentrating on one thing at a time was
very difficult (TR 73). She testified that her severe chest and back pain along with her palpitations
and superventricular tachycardia attacks caused her to leave work many times and that other nurses
had to fill in for her (TR 73).
The ALJ asked if Plaintiff thought she had somatoform disorder (TR 81). Plaintiff answered
in the affirmative at first, but when she wavered in her understanding of the disease, the ALJ
explained that somatoform disorder can be where somebody thinks they are sick although there is
no real support but they can’t function because they’re always thinking about their pain (TR 82).
Plaintiff replied that she knows her conditions are real and she has actual physical problems (TR
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82–83). She stated that her illnesses are not perceived but rather result in real physical pain (TR 84).
ADMINISTRATIVE LAW JUDGE'S FINDINGS
After a discussion of the medical data regarding Plaintiff and hearing testimony, the ALJ
made the prescribed sequential evaluation. The ALJ found that Plaintiff had not engaged in
substantial gainful activity since the onset date of November 27, 2009 (TR 36). The ALJ further
found that Plaintiff had severe impairments of costochondritis, osteopenia, chronic pain syndrome,
bipolar disorder, and somatoform disorder (TR 36). The ALJ concluded that although Plaintiff’s
medical impairments were severe, they were not severe enough either singly or in combination to
meet or medically equal one of the listed impairments (TR 37). The ALJ found that Plaintiff had the
residual functional capacity to perform sedentary work limited by a restriction to simple tasks and
instructions (TR 38). The ALJ then determined that Plaintiff was unable to perform any of her past
relevant work (TR 41). The ALJ then determined that there were jobs in the national economy that
Plaintiff could perform (TR 42). The ALJ concluded that Plaintiff was not disabled from November
27, 2009, through the date of his decision (TR 42).
STANDARD OF REVIEW
In an appeal under § 405(g), this Court must review the Commissioner's decision to
determine whether there is substantial evidence in the record to support the Commissioner's factual
findings and whether the Commissioner applied the proper legal standards in evaluating the
evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g). Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler, 702 F.2d 616, 620
(5th Cir. 1983). This Court cannot reweigh the evidence or substitute its judgment for that of the
Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995), and conflicts in the evidence
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are resolved by the Commissioner. Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985).
The legal standard for determining disability under Titles II and XVI of the Act is whether
the claimant is unable to perform substantial gainful activity for at least twelve months because of
a medically determinable impairment. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); see also Cook,, 750 F.2d
at 393. In determining a capability to perform “substantial gainful activity,” a five-step “sequential
evaluation” is used, as described below. 20 C.F.R. § 404.1520(a)(4).
SEQUENTIAL EVALUATION PROCESS
Pursuant to the statutory provisions governing disability determinations, the Commissioner
has promulgated regulations that establish a five-step process to determine whether a claimant
suffers from a disability. 20 C.F.R. § 404.1520 (2012). First, a claimant who at the time of his
disability claim is engaged in substantial gainful employment is not disabled. 20 C.F.R. §
404.1520(b). Second, the claimant is not disabled if his alleged impairment is not severe, without
consideration of his residual functional capacity, age, education, or work experience. 20 C.F.R. §
404.1520(c). Third, if the alleged impairment is severe, the claimant is considered disabled if his
impairment corresponds to an impairment described in 20 C.F.R., Subpart P, Appendix 1. 20 C.F.R.
§ 404.1520(d). Fourth, a claimant with a severe impairment that does not correspond to a listed
impairment is not considered to be disabled if he is capable of performing his past work. 20 C.F.R.
§ 404.1520(e). Finally, a claimant who cannot return to his past work is not disabled if he has the
residual functional capacity to engage in work available in the national economy. 20 C.F.R. §
404.1520(f); 42 U.S.C. § 1382(a).
ANALYSIS
Plaintiff asserts the following three issues on appeal: (1) whether new and material evidence
submitted to the Appeals Council diluted the record such that the ALJ’s decision was not
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substantially supported; (2) whether the ALJ failed to properly consider the effects of Plaintiff’s
somatoform disorder when making the credibility and residual functional capacity findings; and (3)
whether the ALJ failed to give good reasons for rejecting the opinions of Plaintiff’s VA doctors that
she was unable to work.
After obtaining her nursing degree, Plaintiff served four years in the United States Air Force,
from 2003 to 2007 (TR 51, 541). While in the Air Force, Plaintiff suffered spine and rib injuries and
experienced tachycardia and chest pain (TR 53–55, 433). In 2004 she experienced a back injury
while performing a physical training exercise in Korea (TR 544). Plaintiff continued to have residual
back pain which radiated into her left leg (TR 544). In 2006, while stationed in Italy, Plaintiff fell
into a manhole and hit the left side of her chest (TR 544). She developed pain along the
costochondral junction (TR 544).
On June 1, 2011, the Department of Veterans Affairs granted Plaintiff’s April 9, 2010 claim
for individual unemployability after the agency determined that Plaintiff was “severely disabled due
to service connected disabilities, affecting numerous body systems” (TR 730–731). The VA held,
“It appears only reasonable to conclude that these conditions, in combination, would preclude you
from obtaining and retaining gainful employment” (TR 731).
The earliest medical record before the ALJ was from Plaintiff’s December 2006 emergency
room visit and admission to Denton County Regional Medical Center for chest pain and heart
palpitations (TR 390–391). Her treatment provider’s impression was chest pain, leg pain, palpitation,
and weight loss (TR 391).
On May 31, 2007, while Plaintiff was still on active duty with the Air Force, a Medical Board
was convened to determine her fitness for deployment due to her chest pain and tachycardia (TR
443). The medical narrative prepared for the board indicated that Plaintiff’s chest pain was thought
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to be musculoskeletal after extensive testing failed to show another cause (TR 443). Plaintiff was
unable to perform a full fitness assessment (TR 443). A second medical narrative presented to the
board related that Plaintiff was seen “many times” for treatment of pain and palpitations while
stationed in Italy (TR 441). She also suffered from anxiety related to her medical conditions (TR
441). Her diagnoses were chest wall pain due to costochondritis and tachycardia (TR 442). The
physician related that Plaintiff was limited in her ability to exert herself, to carry heavy loads, or
unable to endure the rigors of deployment (TR 442). On June 4, 2007, a Physical Profile Serial
Report was issued by a USAF health care provider (TR 455). The profile limited Plaintiff’s lifting,
pushing, and pulling to twenty pounds and restricted her from running and jumping (TR 455).
A lumbar MRI was performed in November 2007 (TR 444). It showed a disc bulge in
Plaintiff’s lumbar spine which displaced the exiting nerve root (TR 444). A peripheral nerve exam
performed at the Dallas VA hospital on November 14, 2007, revealed findings consistent with
neuropathies caused by Plaintiff’s lumbar impairment (TR 545–546). A general physical exam
performed the same day noted that Plaintiff suffered from chronic chest pain, tachycardia and heart
palpitations, migraines, gastritis, neuropathy, and disc disease (TR 548).
On April 26, 2008, Plaintiff was treated in the emergency room of Denton Regional Medical
Center for heart palpitations (TR 381). An EKG showed narrow-complex tachycardia (TR 381) She
was discharged after her heart rhythm stabilized (TR 382-385).
Plaintiff was also treated by Dr. Seval Gunes in 2008 (TR 454). At a visit in July 2008,
Plaintiff related that she had an exacerbation of chest pain which radiated to her arms (TR 454). Dr.
Gunes listed Plaintiff’s active problems as left chest wall pain, left costochondritis, lumbar
radiculopathy, and lumbar disc degeneration (TR 454). Her current prescriptions included the antiinflammatory and pain medications hydrocodone, tramadol, and etodolac and the anti-anxiety
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drug xanax (TR 454). At a follow-up appointment in October 2008, Plaintiff reported continued
chest and back pain as well as numbness and paresthesia in her left foot (TR 452–453). Dr. Gunes
opined that Plaintiff’s lower extremity radiculopathy was caused by her lumbar disc degeneration
and the L5-S1 disc contacting the S1 nerve root (TR 453).
On November 18, 2008, Plaintiff presented to Dr. Odette Campbell for an initial consultation
(TR 433). Plaintiff displayed severe pain upon palpitation of her chest, and Dr. Campbell noted a
visible bulging deformity in the upper left side of her rib cage (TR 433). Plaintiff reported that her
chest pain was so bad that she had problems wearing undergarments, and she fatigued easily (TR
433). Plaintiff also stated that she suffered from heart palpitations, back and extremity pain, and
migraines (TR 433). Plaintiff stated that her migraines could last for days and disrupted her
activities of daily living (TR 433). Dr. Campbell noted that Plaintiff appeared anxious (TR 433).
On examination, Dr. Campbell noted that Plaintiff had pain and numbness in her left arm and leg.
(TR 435). Dr. Campbell also noted that Plaintiff suffered from chronic costochondritis, and x-ray
evidence showed a lower back impairment (TR 435). Dr. Campbell advised that Plaintiff should
avoid lifting more than five pounds and should rest frequently and use a handicapped tag for shorter
traveling distance (TR 436).
An April 2009 treatment note from Dr. Campbell stated that Plaintiff was unable to complete
the fall 2008 semester at the University of North Texas because she was “in and out of the hospital
during the above mentioned months and was unable to commute to and from class or to complete
the coursework required” (TR 438). Dr. Campbell noted that Plaintiff was subject to bed rest at any
time as needed (TR 438). Dr. Campbell also opined that Plaintiff qualified for a “medical drop”
from her spring 2009 classes (TR 438).
An x-ray performed on June 5, 2009, showed a narrowing of the disc space at L5-S1 (TR
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440). On June 17, 2009, Dr. Amy Wood at Advanced Wellness and Rehab Center wrote a “To
Whom It May Concern” letter in which she stated that Plaintiff had a bulging disc at L5-S1 which
displaced the S1 nerve root (TR 451). Dr. Wood opined that the displaced nerve root caused
Plaintiff’s left foot numbness and leg pain (TR 451). Dr. Wood further stated that Plaintiff’s spine
injury may have been the result of a fall into a manhole around March 2006 (TR 451). On July 3,
2009, Dr. Reynardo Adorable, one of Plaintiff’s treating doctors at Advanced Wellness and Rehab
Center, wrote another “To Whom It May Concern” letter in which he stated that Plaintiff would drop
her summer and fall 2009 college classes due to her medical condition (TR 439, 445).
A spine exam was performed at the Dallas VA hospital on July 30, 2009 (TR 544). The
examiner noted that Plaintiff was in daily pain and experienced tenderness along the costochondral
junctions (TR 544). Plaintiff also continued to have back pain from her 2004 training accident which
radiated down her left leg (TR 544). The examiner noted that Plaintiff also suffered from fatigue
and poor endurance (TR 545).
A psychological exam was administered at the VA hospital in August 2009 (TR 541). The
examiner noted that Plaintiff had a ten percent disability rating for somatoform disorder but was
requesting a higher rating (TR 541). The examiner related that Plaintiff’s pain had progressively
worsened, which caused an increase in her frustration and anxiety (TR 542). Plaintiff tended to
“over interpret” physical cues, including pain and changes in heart rate and breathing patterns, which
seemed to trigger anxiety attacks (TR 542). Plaintiff also experienced depressive symptoms such
as depressed mood, crying spells, anhedonia, and reduced appetite (TR 542). Plaintiff also reported
that she had problems with concentration and fatigue (TR 542). The examiner diagnosed Plaintiff
with a mood disorder and a somatoform disorder (TR 543). The examiner also noted that Plaintiff
“experiences more impairment than the physical findings and has a tendency toward somatization”
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and that her “somatoform disorder and mood disorder both appear to have worsened since her last
evaluation” (TR 544).
Plaintiff visited the emergency room at Denton Regional Hospital twice in August 2009
and once in January 2010 (TR 456, 462, 477). On August 3, 2009, she was treated for chest and
bilateral leg pain (TR 462). She was assessed with chronic back pain, atypical chest pain, and
chronic lumbar radiculopathy (TR 468). On August 7, 2009, she was treated for heart palpitations
(TR 456). She was diagnosed with palpitations and an anxiety reaction (TR 458). On January 5,
2010, Plaintiff was treated for abdominal pain (TR 477).
Plaintiff began pain management with Dr. David Mantsch in late 2009 (TR 612). In her
initial pain evaluation, Plaintiff reported that she needed help with her leg, chest, and back pain as
well as with her migraines (TR 612). She stated that she missed work and lost jobs due to her pain
(TR 613). Dr. Mantsch observed that Plaintiff ambulated with a limp and was in mild distress (TR
421). He diagnosed low back pain, chronic pain syndrome, cervical radiculitis or brachial neuritis,
and pain in limbs (TR 422). Dr. Mantsch made those diagnoses after regular visits through May
2010 (TR 414, 417, 426, 429, 432). In May 2010, Plaintiff reported that she developed a high
tolerance to oxycodone and stomach cramps and would like to decrease her dosage (TR 413).
In 2010 records from Plaintiff’s treating doctor at Women’s Wellness and Aesthetics,
Plaintiff was noted to suffer from leg and back pain, irritable bowel syndrome, anxiety, and
migraines (TR 504–505). A bone density scan showed that she suffered from osteopenia (TR 505).
Records from Women’s Wellness and Aesthetics in 2011 show that Plaintiff continued to suffer
from migraines, chest and back pain, and anxiety (TR 734–735).
Plaintiff sought help for depression from the Dallas VA hospital in March 2010 (TR 565).
Plaintiff reported that she was sad and overwhelmed at times (TR 565). She was assessed with
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chronic back and neck pain, GERD, and depression (TR 566). She was started on celexa, an
anti-depressant (TR 566).
In a mental compensation and pension exam performed in June 2010, Plaintiff was diagnosed
with bipolar disorder and somatoform disorder (TR 554). The examiner opined that Plaintiff’s
migraine headaches were “most likely debilitating and would limit employability” (TR 555). The
examiner did not believe that Plaintiff was unemployable solely due to her mental impairments, but
she felt that Plaintiff’s reliability and productivity were reduced by her mental symptoms (TR 555).
A physical compensation and pension exam was also performed in June 2010 (TR 537). The
examiner diagnosed recurrent complex migraine headaches that occurred one to two times a week
and which lasted six hours at a time (TR 539). The examiner noted that the migraines prevented
Plaintiff from doing any type of work (TR 539). The examiner also opined that Plaintiff’s
tachycardia would prevent her from working because of its frequency (TR 539). The examiner noted
that Plaintiff’s costochondritis would prevent her from performing her past work as a nurse (TR
539). Another examiner, specifically charged with evaluating Plaintiff’s back impairment, diagnosed
lumbosacral strain, degenerative disc disease, and lower extremity radiculopathy (TR 540).
Plaintiff’s back impairments alone would limit her to sedentary work with the flexibility to stand and
stretch every forty-five minutes to one hour (TR 540).
Plaintiff continued to see Dr. Mantsch for pain management in June, July, and August of
2010 (TR 408–412, 608). Plaintiff continued to experience leg, back, chest, and limb pain (TR 408,
412, 608). She also suffered from severe insomnia and panic attacks (TR 412). Dr. Mantsch
observed Plaintiff’s antalgic gait and pain with range of motion (TR 409, 607).
In October 2010, a non-examining state agency medical consultant issued a physical residual
functional capacity opinion (TR 623–630). The consultant opined that Plaintiff could perform
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medium work, which requires lifting up to fifty pounds occasionally and twenty-five pounds
frequently (TR 624). In November 2010, Plaintiff was again treated for heart palpitations at Denton
Regional Hospital (TR 713).
On December 27, 2010, Plaintiff underwent a consultative psychological exam performed
by Robert Beck, Ph.D (TR 632–638). Dr. Beck administered a battery of psychological tests,
including the McGill Pain Questionnaire which showed Plaintiff scored in the highest category of
pain (TR 633). Plaintiff also scored in the highest category of disability due to pain on the Oswestry
Disability Rating Questionnaire (TR 633). Other tests showed that Plaintiff was severely depressed
and anxious, and she showed above average somatization (TR 635). The mental status exam also
showed significant errors in concentration and attention (TR 636). Dr. Beck diagnosed
bipolar/schizoaffective disorder and PTSD (TR 637–638). He assessed Plaintiff’s GAF at forty to
forty-five (TR 638).
On December 30, 2010, Plaintiff voluntarily sought detox treatment from Mayhill Hospital
for her dependency on prescription pain medication (TR 643). Plaintiff took the medication as
prescribed and never exceeded doses, but she wished to be weaned off the medication (TR 643).
Upon admission, Plaintiff was diagnosed with bipolar disorder and polysubstance dependence, and
her GAF was thirty (TR 658). Plaintiff was discharged from the detox program on January 5, 2011,
with a GAF of fifty (TR 655).
On January 21, 2011, a non-examining state agency medical consultant issued a psychiatric
review technique opinion and a mental residual functional capacity opinion (TR 662–678). The
consultant opined that Plaintiff suffered from mild limitation in her activities of daily living and
moderate limitation in her social functioning and concentration, persistence, or pace (TR 672). The
consultant found that Plaintiff had numerous moderate limitations in her vocational and social
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functioning, but concluded that she could perform detailed but not complex work (TR 676–678).
Plaintiff was treated by Dr. Mark Klein and Dr. Mark Gibbs in 2011 (TR 695–701, 720). She
continued to suffer from chest pain and tenderness, tachycardia, and chronic pain syndrome (TR 695701). On March 8, 2011, Plaintiff again sought emergency treatment for palpitations at North Texas
Medical Center (TR 681–82, 727).
Plaintiff’s first issue asserts that the Appeals Council failed to properly consider new
evidence Plaintiff submitted on appeal. The ALJ issued a decision on January 27, 2012, and Plaintiff
submitted new evidence to the Appeals Council on May 15, 2012 (TR 260-379).
When a district court reviews a disability claim, it must consider the entire administrative
record, which includes any action the Appeals Council has taken. See Higginbotham v. Barnhart,
405 F.3d 332, 335 (5th Cir. 2005). When the Appeals Council receives a request for review, it “may
deny or dismiss the request for review, or it may grant the request and either issue a decision or
remand the case to an administrative law judge.” 20 C.F.R. § 404.967. When the Appeals Council
declines to grant a request for review, the ALJ’s decision becomes the final decision of the
Commissioner. Higginbotham, 405 F.3d at 337. “The Appeals Council should 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.” Henderson v. Astrue, No. 3:10-CV-0589-D, 2011 WL 540286, at *4 (N.D. Tex
Feb. 15, 2011) (citing 20 C.F.R. § 404.970). Regardless of the outcome at the Appeals Council,
claimants are permitted to send additional evidence in connection with the request for review as long
as it is relevant to the time periods where disability is alleged. See 20 C.F.R. 404.970(b). New
evidence received at the Appeals Council must be considered with a request for review. Rodriguez
v. Barnhart, 252 F. Supp. 2d 329, 336 (N.D. Tex. 2003); see also Carry, 750 F.2d at 486 . When
evaluating that evidence the Appeals Council must follow the same rules that the ALJ follows. 20
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C.F.R. § 404.1527(e)(3). New evidence is “material” if: (1) the evidence “relates to the time period
for which the disability benefits were denied,” and (2) “there is a reasonable probability that [the]
new evidence would change the outcome of the [Commissioner’s] decision.” Ripley v. Chater, 67
F.3d 552, 555 (5th Cir. 1995).
The United States Court of Appeals for the Fifth Circuit cautions against remanding cases
based on new evidence presented to the Appeals Council. See Jones v. Astrue, 228 F. App’x 403,
406-07 (5th Cir. 2007) (citing Higginbotham, 405 F.3d at 334 (“final decision” of the Commissioner
includes evidence presented for the first time to the Appeals Council).
The new evidence included over one hundred pages of medical records (TR 260–379).
Included were records covering September 2010 through January 2012 from Drs. Hayee and Vu from
Flower Mound Interventional Pain Physicians (TR 260–284). The doctors diagnosed Plaintiff with
chronic pain due to trauma, musculoskeletal chest pain, intercostal neuralgia, thoracic spondylosis,
lumbosacral radiculopathy, and degenerative disc disease (TR 260, 266).
The evidence submitted to the Appeals Council also contained treatment records from Dr.
Sanjoy Sundaresan at Texoma Spine Center (TR 318–331). Dr. Sundaresan noted that Plaintiff
suffered from chronic anxiety and depression which was consistent with her chronic pain condition
(TR 323). The doctor recommended spinal injections and medications for Plaintiff’s pain and
ordered an EMG nerve study (TR 325). He opined that Plaintiff’s chronic pain was unlikely to be
cured by surgery (TR 325). Facet injections were administered on April 5, 2012 (TR 328–329). An
EMG suggested chronic bilateral lumbar radiculopathy (TR 321).
Also included were records from a psychological evaluation performed by James R. Harrison,
Ph.D. (TR 349–376). Dr. Harrison conducted a clinical interview and administered several
questionnaires and assessments (TR 354). Based on the interview and testing, Dr. Harrison assessed
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Plaintiff with bipolar disorder, PTSD, dysthymic disorder, and pain disorder (TR 360). Dr. Harrison
opined that Plaintiff had marked limitations in her ability to perform detailed work, make simple
work-related judgments, interact appropriately with coworkers and supervisors, and respond to
routine changes in the workplace (TR 374–375). Dr. Harrison believed she had an extreme
limitation in her ability to respond to work pressures and complete a normal workday and workweek
without interruption from her psychologically based symptoms (TR 375). Plaintiff’s psychological
symptoms also exacerbated her degree of functional impairment that she experiences from anatomic
pain and fatigue (TR 375). Dr. Harrison believed the foregoing limitations were in place since
November 27, 2009 (TR 374).
The Appeals Council considered Dr. Harrison’s examining opinions but rejected them
because “[t]his new information is about a later time” (TR 8). Plaintiff asserts that this decision to
not even consider Dr. Harrison’s opinions was error. Plaintiff asserts that Dr. Harrison specifically
noted that his opinion reflected Plaintiff’s functioning from November 27, 2009, through the date
he signed the opinion, May 11, 2012 (TR 375-376). Plaintiff argues that since Dr. Harrison’s report
relates to the period on or before the date of the ALJ's decision, it should have been considered by
the Appeals Council under the appropriate standards for weighing examining sources.
The Commissioner points the Court to unpublished decision Beck v. Barnhart, 205 F. App’x
207 (5th Cir. 2006), to support the notion that since the Appeals Council did not consider the
submitted evidence because it was determined to be non-material, the court cannot use this evidence
as a basis for reversal. The Commissioner goes on to assert that the relevant period of time ended
on January 27, 2012, and that Dr. Harrison’s April 2012 evaluation and treatment records are from
February through April 2012. The Commissioner argues that the decision not to evaluate these
records which were outside of the relevant period of time is not error. Finally, the Commissioner
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asserts that post-decision evidence that the Appeals Council explicitly does not consider due to nonmateriality is outside the scope of Higginbotham and may not provide a basis for reversing the ALJ’s
decision.
The Social Security Regulations do not require that evidence be dated before the ALJ’s
decision to be material, but that it relate to the period on or before the ALJ’s decision. See 20 C.F.R.
§ 416.1476(b)(1).
Here, Dr. Harrison clearly stated that his opinions applied to the time period relevant to
Plaintiff’s claims, therefore the opinions were material and should be considered as part of the record
(TR 376). The fact that Dr. Harrison’s opinions were completed after the ALJ’s decision is
immaterial in this case. Dr. Harrison specifically noted that his opinion reflected Plaintiff’s
functioning from November 27, 2009, through the date he signed the opinion, May 11, 2012 (TR
375-376). Thus, the Appeals Council erred in not considering this evidence. The Court also finds
that the Commissioner’s reliance upon Beck is misplaced. In Beck, the Fifth Circuit found that “the
substantial evidence standard does not apply to evidence submitted to the Appeals Council and
rejected by it as neither new nor material.” Beck, 405 F. App’x at 214. The Fifth Circuit also noted
that the evidence submitted to the Appeals Council was not material. In this case, the issue raised
is whether the evidence was material and the rejection of the evidence was error. Since the Court
finds that Dr. Harrison’s opinions, by his own report, applied to the relevant time, the Appeals
Council was required to review the evidence upon the appropriate standards.
Because the Appeals Council improperly rejected Dr. Harrison’s opinion as immaterial, it
did not perform the analysis required when evaluating source opinions. The weight given to Dr.
Harrison’s opinions must be determined upon remand. The Court cannot reweigh the evidence, try
the issue de novo, or substitute its judgment on the ultimate issue of disability for that of the
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Commissioner. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The Court finds that remand
is necessary so that Dr. Harrison’s opinions may be weighed under the proper legal standards. The
ALJ and Appeals Council are entitled to determine the credibility of medical sources and weigh their
opinions accordingly. Greenspan, 38 F.3d at 237. Moreover, the new and material evidence from
Dr. Harrison directly contradicted several of the findings upon which the ALJ based the disability
determination.
.
In light of the new and material evidence submitted to the Appeals Council, Commissioner’s
final decision was not substantially supported.
Remand for further consideration of the new
evidence by either the Appeals Council or the ALJ is warranted.
The decision of the Administrative Law Judge is hereby REMANDED for further review.
SIGNED this 27th day of March, 2014.
___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE
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