Caves v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER: The court OVERRULES defendant's objections and adopts the Findings and Recommendations of Magistrate Judge Tinsley and, by Judgment Order entered on 3/31/2017, ORDERED: 1. Plaintiff's Brief in Support of Com plaint was GRANTED to the extent she seeks remand pursuant to sentence four of 42 U.S.C. § 405(g); 2. Defendant's Brief in Support of the Commissioner's Decision was DENIED; 3. The final decision of the Commissioner was REVERSED; 4. The case was REMANDED to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings as outlined in the Proposed Findings and Recommendation and this court's Memorandum Opinion and Order; and 5. This Clerk was directed to remove this case from the court's active docket. Signed by Senior Judge David A. Faber on 4/3/2017. (cc: counsel of record) (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
DONNA LORETTA CAVES,
Plaintiff,
v.
CIVIL ACTION NO. 1:15-15915
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge Tinsley submitted to the
court his Proposed Findings and Recommendation (“PF&R”) on
February 28, 2017, in which he recommended that the court grant
the plaintiff’s brief to the extent that she seeks remand
pursuant to sentence four of 42 U.S.C. § 405(g); deny defendant’s
brief in support of the Commissioner’s decision; reverse the
final decision of the Commissioner, remand the case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for
further proceedings as outlined in the PF&R; and dismiss this
matter from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days and three mailing days in
which to file any objections to Magistrate Judge Tinsley's
Proposed Findings and Recommendation.
The failure of any party
to file such objections within the time allowed constitutes a
waiver of such party's right to a de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
The government timely filed objections and Caves
responded to those objections.
(ECF Nos. 18 and 19).
With
respect to those objections, the court has conducted a de novo
review.
Following a hearing on May 13, 2014, Administrative Law
Judge Jeffrey J. Schueler issued an unfavorable notice of
decision on May 30, 2014.
Administrative Records (“AR”) at 9-30.
Caves asked the Appeals Council to review that decision and
submitted additional evidence which the Appeals Council received
and made part of the record.
AR at 1-4.
On November 10, 2015,
the Appeals Council denied the request for review.
See id.
It
noted that it considered the additional evidence and found that
this information did not provide a basis for changing the
Administrative Law Judge's decision.
See id.
The additional
evidence included:
! Exhibit 53F.
Medical evidence from Foot & Ankle Clinic
dated March 13, 2014.
! Exhibit 54F.
Medical evidence from Bluefield Clinic
Company dated June 2, 2014 through July 18, 2014.
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! Exhibit 55F.
Medical evidence from Bluefield Regional
Medical Center dated August 13, 2014.
AR at 1349-1372.
The Appeals Council did not indicate the
reasons for its decision nor was it required to do so.
The new evidence submitted to the Appeals Council
included treatment notes from Dr. Gary McCarthy dated June 2,
2014, June 25, 2014, July 3, 2014, July 14, 2014, and July 18,
2014.
The notes indicate that plaintiff was being seen by Dr.
McCarthy for left ankle and foot pain.
Those records further
indicate that plaintiff underwent surgery on her left lower
extremity on July 3, 2014.
Magistrate Judge Tinsley concluded that the evidence
submitted to the Appeals Council was new and material and that,
because that evidence addressed Caves’ “continued complaints and
treatment for [her] lower extremit[ies,” there was a reasonable
possibility that this new evidence would have changed the outcome
of the ALJ’s decision.
PF&R at 18.
Therefore, the magistrate
judge recommended that this court find the ALJ’s decision was not
supported by substantial evidence because he had not reviewed the
record as a whole.
See id.
Defendant argues that Magistrate Judge Tinsley is wrong.
According to the Commissioner, the evidence from Dr. Chianese is
merely cumulative of certain other evidence in the record.
Objections at 2.
As for the other evidence submitted to the
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Appeals Council, because it post-dated the ALJ’s decision,
defendant argues that it does not pertain to the relevant time
period in this matter.
See id. at 2-3.
Therefore, the
Commissioner submits that there is no reasonable probability that
the additional evidence could have changed the outcome of the
ALJ’s decision.
See id. at 1.
The court does not agree.
While the evidence regarding
the sprained ankle is clearly outside the relevant time period,
the fact that plaintiff had surgery little more than 30 days
after the ALJ’s decision might call into question the ALJ’s
conclusions about the level of severity of plaintiff’s lower
extremities.
There is no indication that this surgery was for
anything other than plaintiff’s ongoing complaints regarding her
ankle and foot pain.
Rather than repeat the evidence of record regarding
plaintiff’s lower extremities, the court relies on the discussion
provided in the PF&R.
As to plaintiff’s lower-level extremities,
the ALJ’s decision stated:
At the second hearing, the claimant testified that
her plantar fasciitis and foot symptoms were her
main impairments. She said her feet would swell
and get painful, and the left was worst [sic].
She stated that she can stand and walk only five
to ten minutes at a time. She also alleged that
she must elevate her feet 3 hours per day.
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AR at 18.
The ALJ summarized plaintiff’s treatment for her lower
extremities and noted that she started seeing Dr. Leonard Horwitz
in October 2010.
AR at 20-21.
As to plaintiff’s credibility, the ALJ stated:
After careful consideration of the evidence, the
undersigned finds that the claimant’s medically
determinable impairments could reasonably be
expected to cause the alleged symptoms; however,
the claimant’s statements concerning the
intensity, persistence and limiting effects of
these symptoms are not entirely credible for the
reasons explained in this decision. As
demonstrated by the evidence as summarized above
and the credibility factors as explained below,
the claimant’s allegations in this case are found
less than fully credible.
AR at 23-24.
The ALJ went on to find that
[i]n terms of the claimant’s alleged physical
impairments, the medical evidence of record does
not support the severity of her allegations. . . .
In this case, the claimant has not consistently
complained of and sought treatment for symptoms
related to her alleged impairments. As to
claimant’s foot pain, she often went many months
without seeing her podiatrist. She repeatedly
stated to him that the injections and medications
helped her foot pain, but during many periods, she
did not see him for months at a time, suggesting
that her symptoms had resolved or were not that
severe. The claimant did not seek treatment for
foot pain from mid-2012 to 2014, and in 2014, she
only sought routine pain medication from her
primary care practitioner.
AR at 24 (emphasis added).
The ALJ went on to state that
Although the claimant has received treatment for
the allegedly disabling impairments, that
treatment has been mostly routine and/or
conservative in nature. The record also reveals
that the treatment has been generally successful
in controlling these symptoms. The claimant
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received injections and medication for her foot
pain. She also used a brace and a special boot or
shoe after her ankle sprain, but this only lasted
a few months, suggesting that she had improved.
The claimant used Neurontin for her foot and lower
extremity symptoms and reported that it helped. .
. . The undersigned does not contend that the
claimant’s treatment completely cured all of her
symptoms. However, the medical evidence of record
shows that treatment significantly helped her.
AR at 24 (emphasis added).
Finally, the ALJ noted that, “[i]n
this case, as discussed above, the objective medical evidence,
including diagnostic imaging, testing, and physical examination
results show only mild abnormalities.”
AR at 25.
As to the ALJ’s treatment of Dr. Horwitz, plaintiff’s
podiatrist, the ALJ’s decision states:
As for the opinion evidence, Dr. Horwitz, the
claimant’s podiatrist, opined that the claimant
was unable to perform sedentary work. He noted
her diagnoses and symptoms, including foot pain,
numbness, and burning. He opined that the
claimant was not able to sit, stand, or pay
attention for 2 hours. (Exhibit 40F) His opinion
is given little weight because it is not supported
by the medical evidence of record. Even though
the claimant’s ability to stand and walk is
limited by her lower extremity symptoms, as
explained above, she received conservative,
infrequent treatment for them, and she often stated that her treatme
and leg problems could limit one’s ability to sit (due to the
need to elevate the legs and feet), they primarily affect the
ability to stand and walk. There is no objective evidence in
this case that the claimant needed to elevate her legs
frequently, and she never alleged significant problems with
sitting to Dr. Horwitz.
AR at 26.
Finally, the ALJ gave the opinion of Dr. Besen “very
little weight” because he stated only that plaintiff had “foot
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pain and numbness” and that did not demonstrate a “documented
inability to ambulate.”
AR at 28.
As the foregoing demonstrate, the ALJ largely discredited
plaintiff’s complaints regarding the severity and pain related to
her foot and ankle ailments.
In so doing, he pointed out that
the only treatment she had received was conservative and,
further, that such treatment seemed to help.
The ALJ also gave
little weight to the opinions of Dr. Horwitz, plaintiff’s
treating physician, in part, because she had received
conservative treatment for her ailments.
However, the new
evidence regarding plaintiff’s surgery to relieve ankle and foot
pain could reasonably call into question the ALJ’s conclusions
about plaintiff’s foot and ankle pain and the severity thereof.
Therefore, the Commissioner’s failure to explain its treatment of
this new evidence – which is part of the record herein – makes
remand necessary.
When a claimant appeals an ALJ's ruling, the Appeals
Council first makes a decision whether to grant or deny review.
Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
The regulations also specifically permit claimants
to submit additional evidence, not before the ALJ,
when requesting review by the Appeals Council.
See id. §§ 404.968, 404.970(b). In such cases,
the Appeals Council first determines if the
submission constitutes “new and material” evidence
that “relates to the period on or before the date
of the [ALJ's] hearing decision.” Id. §
404.970(b). Evidence is new “if it is not
duplicative or cumulative” and is material if
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there is “a reasonable possibility that the new
evidence would have changed the outcome.”
Wilkins, 953 F.2d at 96.
Id. at 704-05.
If the Appeals Council determines that evidence
is new and material, it then
“evaluate[s] the entire record including the new
and material evidence.” Id. § 404.970(b). After
this evaluation, if the Appeals Council finds that
the ALJ's “action, findings, or conclusion is
contrary to the weight of the evidence currently
of record,” id., it will grant the request for
review and either issue its own decision on the
merits or remand the case to the ALJ. Id. §§
404.967, 404.977(a), 404.979. But if upon
consideration of all of the evidence, including
any new and material evidence, the Appeals Council
finds the ALJ's action, findings, or conclusions
not contrary to the weight of the evidence, the
Appeals Council can simply deny the request for
review.
Id. at 705.
The Appeals Council is not required to explain its
rationale for denying review.
See id.
However, as the Fourth
Circuit has acknowledged, “[a]lthough the regulatory scheme does
not require the Appeals Council to articulate any findings when
it considers new evidence and denies review, we are certainly
mindful that `an express analysis of the Appeals Council's
determination would [be] helpful for purposes of judicial
review.’”
Id. at 706 (quoting Martinez v. Barnhart, 444 F.3d
1201, 1207-08 (10th Cir. 2006); see also Damato v. Sullivan, 945
F.2d 982, 989 n.6 (7th Cir. 1992)(noting that in “fairness to the
party appealing the ALJ's decision, the Appeals Council should
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articulate its reasoning” when it rejects new and material
evidence and denies review).
In this case, the evidence regarding plaintiff’s surgery
little more than a month after the ALJ’s decision appears to be
relevant to the time period at issue herein.
Perhaps it is not,
but the court has no basis on which to so conclude because the
Commissioner (through the Appeals Council) gave no reasons for
its treatment of this evidence.
Another district court succintly
explained the difficult situation this court faces:
In deciding this case, the court must attempt to
steer its analytical ship between the twin perils
of Scylla and Charybdis. The court is caught
between trying to provide meaningful judicial
review of evidence not considered by the fact
finder, while avoiding actually performing the
task of weighing and resolving conflicts in the
evidence, which is, of course, the function of the
ALJ. Specifically, in this modern-day version of
the classic Greek tale, Scylla represents any
violation of the Fourth Circuit's rule that when
evidence not considered by the ALJ is submitted to
the Appeals Council and is incorporated into the
record, the reviewing court must also consider
this evidence in determining whether the
Commissioner's decision is supported by
substantial evidence. See Wilkins v. Secretary,
Dep't of Health & Human Servs., 953 F.2d 93, 96
(4th Cir. 1991). By attempting to adhere to such
a rule when the Appeals Council fails to
articulate the reasons why the new, additional
evidence does not suffice as a basis for changing
the ALJ's decision, this court is drawn perilously
close to Charybdis, which represents any violation
of the Fourth Circuit's rule that the Commissioner
must indicate explicitly the weight of all
relevant evidence because it is not within the
province of a reviewing court to determine the
weight of the evidence. See Hays v. Sullivan, 907
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F.2d 1453, 1456 (4th Cir. 1990); Stawls v.
Califano, 596 F.2d 1209, 1213 (4th Cir. 1979).
* * *
. . . In Social Security cases, a district court's
function “is limited to determining whether the
findings of the [Commissioner] are supported by
substantial evidence and whether the correct law
was applied.” Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). “Judicial review of an
administrative decision is impossible without an
adequate explanation of that decision by the
administrator.” DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983). “A bald conclusion,
unsupported by reasoning or evidence, is generally
of no use to a reviewing court.” Jordan v.
Califano, 582 F.2d 1333, 1335 (4th Cir. 1978).
Instead, the Commissioner “must indicate
explicitly that all relevant evidence has been
weighed and its weight.” Stawls v. Califano, 596
F.2d 1209, 1213 (4th Cir. 1979). The “Appeals
Council's failure to make specific findings
concerning [new evidence submitted to it is]
reversible error. Unless the [Commissioner]
explicitly indicates the weight given to all the
relevant evidence, [a district court] cannot
determine on review whether the findings are
supported by substantial evidence.” Myers v.
Califano, 611 F.2d 980, 983 (4th Cir. 1980).
Therefore, the Commissioner “must present [the
reviewing court] with findings and determinations
sufficiently articulated to permit meaningful
judicial review.” DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983). The Commissioner failed
to do so in this case. This court is not a
soothsayer and cannot base its conclusion on
surmise and conjecture as to the reasons the
Commissioner disregarded the new, additional
evidence presented to it. “Unless the
[Commissioner] has analyzed all evidence and has
sufficiently explained the weight he has given to
obviously probative exhibits, to say that his
decision is supported by substantial evidence
approaches an abdication of the court's duty to
scrutinize the record as a whole to determine
whether the conclusions reached are rational.”
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Arnold v. Secretary of Health, Educ. & Welfare,
567 F.2d 258, 259 (4th Cir. 1977).
Harmon v. Apfel, 103 F. Supp.2d 869, 873 (D.S.C. 2000)(internal
footnotes omitted).
Based on the foregoing, the court cannot conclude that
Magistrate Judge Tinsley erred in finding that the Commissioner's
final decision is not supported by substantial evidence in the
current record, which contains new and material evidence of
Caves’ physical condition during the relevant time period.
“The
Appeals Council's summary denial means that no fact finder has
weighed this evidence or attempted to reconcile it with the
conflicting and supporting evidence in the current record.
Court cannot undertake that task in the first instance.”
This
Bass v.
Colvin, No. 4:14-cv-00003, 2015 WL 225412, *9 (W.D. Va. Jan. 16,
2015) (remanding under the fourth sentence of 405(g) for
consideration of additional evidence submitted to Appeals Council
but not considered by ALJ because such evidence contradicted
factual findings and rationale underpinning ALJ’s decision); see
also Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011)(“The ALJ
emphasized that the record before it lacked restrictions placed
on the claimant by a treating physician, suggesting that this
evidentiary gap played a role in its decision.
Meyer
subsequently obtained this missing evidence from his treating
physician.
That evidence corroborates the opinion of Dr.
Weissglass, which the ALJ had rejected.
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But other record
evidence credited by the ALJ conflicts with the new evidence.
The Appeals Council made the new evidence part of the record but
summarily denied review of the ALJ decision.
Thus, no fact
finder has made any findings as to the treating physician’s
opinion or attempted to reconcile that evidence with the
conflicting and supporting evidence in the record.
Assessing the
probative value of competing evidence is quintessentially the
role of the fact finder.
instance.
We cannot undertake it in the first
Therefore, we must remand the case for further fact
finding.”).
Accordingly, the court OVERRULES defendant’s objections
and adopts the Findings and Recommendations of Magistrate Judge
Tinsley and, by Judgment Order entered on March 31, 2017,
ORDERED:
1.
Plaintiff’s Brief in Support of Complaint was
GRANTED to the extent she seeks remand pursuant to
sentence four of 42 U.S.C. § 405(g);
2.
Defendant’s Brief in Support of the Commissioner’s
Decision was DENIED;
3.
The final decision of the Commissioner was
REVERSED;
4.
The case was REMANDED to the Commissioner pursuant
to the fourth sentence of 42 U.S.C. § 405(g) for
further proceedings as outlined in the Proposed
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Findings and Recommendation and this court’s
Memorandum Opinion and Order; and
5.
This Clerk was directed to remove this case from
the court’s active docket.
The Clerk is directed to forward a copy of this
Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 3rd of April, 2017.
ENTER:
David A. Faber
Senior United States District Judge
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