Opinion
Civil. No. 02-1206(JBS).
March 10, 2003
Adrienne Freya Jarvis, Esquire, ADRIENNE FREYA JARVIS, P.C., Cherry Hill, New Jersey, Attorney for Plaintiff.
Christopher J. Christie, United States Attorney, By: Peter G. O'Malley, Assistant United States Attorney, Newark, New Jersey, Attorney for Defendant.
OPINION
This matter comes before the Court pursuant to section 205(g) of the Social Security Act, as amended 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration denying plaintiff's claim for Disability Insurance Benefits. This Court must determine whether the Commissioner's decision that Mr. Alicea was "not disabled" is supported by substantial evidence. For reasons stated below, this Court will vacate the Commissioner's decision and remand this case for further consideration in light of new evidence.
I. BACKGROUND A. Procedural History
Plaintiff, Carmelo Alicea, filed an application for Disability Insurance Benefits on July 10, 1997 in which he alleged that he had an onset of disability on June 9, 1997 due to spinal stenosis, lumbar diskectomy, diabetes mellulitis, and a blocked artery from a 1994 heart attack. (R. at 54-57, 80.) His applications were denied on August 7, 1997. (R. at 34-38.) Plaintiff then filed a request for reconsideration on August 13, 1997, (R. at 39), which was denied on October 22, 1997, (R. at 40-44). Plaintiff then filed a request for review by an Administrative Law Judge ("ALJ") on November 3, 1997. (R. at 45-46.) The hearing was held on June 3, 1998 before ALJ Carl E. Stephan. (R. at 550-574.) Plaintiff was represented at the hearing by Julio L. Mendez, Esq. (Id.)
ALJ Stephan issued a decision denying benefits on September 15, 1998. (R. at 18-26.) Plaintiff filed a timely request for review by the Appeals Council on November 4, 1998. (R. at 14-15.) On November 6, 2001, new counsel for plaintiff, Andrew Leibovitz, Esquire, sent a letter to the Appeals Council with additional evidence. (R. at 10, 309-10.) Some of the additional evidence duplicated medical records previously submitted; most showed plaintiff's medical condition after the ALJ's September 1998 decision. (R. at 10, 309-51.) The Appeals Council considered the contentions raised in the letter and reviewed the additional evidence, but only if it related to the issue of disability prior to the ALJ's September 1998 decision. (R. at 7.) The Appeals Council did not consider any records dated after September 1998. (R. at 8.)
On January 23, 2002, the Appeals Council denied plaintiff's request for review and found that the September 15, 1998 decision of the ALJ would be the final decision of the Commissioner of the Social Security Administration. (R. at 7-9.) New counsel for plaintiff, Adrienne Freya Jarvis, Esquire, then filed the present action with this Court on March 18, 2002 seeking judicial review of the ALJ's decision. [Docket Item 1-1.]
B. Evidence in the Record 1. Personal history
Plaintiff was born on January 15, 1949 in Puerto Rico and was educated through fifth grade. (R. at 54, 554, 556.) Plaintiff testified on June 3, 1998 through a translator. He said that he moved to the United States twenty-five years prior and was a United States citizen, but never learned English because he has always "been around Hispanic people, and . . . then — you always speak Spanish and one doesn't learn." (R. at 554-56.)
Plaintiff is about 5'5" tall and weighs about 144 pounds. (R. at 554.) He is married and lives with his wife, Maria Alicea, who works in a clinic in Atlantic City. (Id.) They have three grown children who no longer live with them. (R. at 554-55.) Plaintiff has a driver's license and drives about five times a week for about an hour each time, (R. at 555), but says that getting in and out of the car is "uncomfortable and painful," (R. at 103).
The record refers to plaintiff's wife as "Maria Alicea" and as "Miriam Alicea." (See R. at 55, 127, 569.) This Court will refer to her as "Maria" because it was the name used when she was sworn in at the administrative hearing.
Plaintiff testified that he stopped working in 1997 after he had back surgery and his pain worsened. (R. at 556.) At the time, he had worked at the Claridge hotel as a waiter, kitchen worker, and buffet server for about six years. (R. at 557, 567.) Before, he worked finishing and patching fiberglass boats and as a kitchen worker. (R. at 557-58.)
He testified that the pain has gotten worse from his lower back down to his legs. (R. at 559.) He said that "[t]he pain is, it's very, it's strong, but I take the tablet." (Id.) He said that he need to take a fifty milligram Ultram tablet for his pain every six hours which helps a lot. (R. at 559-60.) The pain is a "sharp, stabbing pain" which causes him to lose his balance. (R. at 118, 565-66.) Plaintiff also testified to constant joint pain in his shoulders and right elbow that feels like "needles and pins." (R. at 120, 563.) He described his overall condition as "constant pain all over my body, I feel drained out from constant pain." (R. at 122.)
Plaintiff also testified that he has diabetes and that he treats it with a tablet in the morning and an insulin injection in the afternoon. (R. at 560.) He also testified that he had a heart attack which he now treats with Isosorbide and Metoprolol. (R. at 562.)
Plaintiff says that all day he does "nothing, watching television, walking around the house." (R. at 563.) He generally does not help his wife with chores, but sometimes helps take out the trash or goes with his wife to the grocery store. (R. at 125, 126, 563-64, 571.) He can bathe, dress, and feed himself, but he has trouble standing to shave for long periods of time and has trouble bending to put on his socks and shoes. (R. at 102, 112, 564.) He used to smoke and drink alcohol, but quit both about twelve to fifteen years ago. (Id.)
Plaintiff's wife also testified before the ALJ. (R. at 570.) She testified that when she leaves for work at 8:30 in the morning, plaintiff is still in bed and that when she returns home he is usually laying down on the couch. (Id.) When she is home on Saturdays and Sundays, she said that when plaintiff gets up, he usually "just lies around." (Id.) She also testified that plaintiff "doesn't sleep hardly at night. He's usually tossing and turning, and sometimes he even gets up and goes to the living room, so I can sleep." (R. at 572.) Plaintiff complains to her of "aches, the pains in his bones, and dizziness sometimes, and sometimes hard to balance." (Id.)
2. Medical history prior to September 15, 1998
In plaintiff's application for benefits, he claimed disability based on diabetes mellitus, a blocked artery, spinal stenosis, and lumbar diskectomy. (R. at 80.)
(a) Diabetes mellitus
Plaintiff has suffered from diabetes since at least 1989. (R. at 168-71, 173.) Plaintiff's primary physician, Dr. Bharat J. Jhaveri, has continued to monitor his glucose levels since that time, (R. at 185-201, 210-11, 219, 227-30, 242-55, 279-80, 294-301, 311-17, 425, 486-513), and has included plaintiff's diabetes mellitus as a medical reason for some of plaintiff's absences from work, (R. at 164, 424, 429). On August 3, 1994, Dr. Rashmikant S. Desai found that his diabetes was controlled by insulin. (R. at 205.) On November 26, 1997, Dr. Ana Cilursi found that plaintiff's diabetes still required regular checks of his blood sugars. (R. at 292.)
(b) Coronary artery disease
On July 14, 1994, Dr. William H. Matthai at the Atlantic City Medical Center performed a cardiac catheterization on plaintiff and diagnosed him with single vessel coronary disease. (R. at 203, 207, 232.) Dr. Desai saw plaintiff on August 3, 1994 and on August 16, 1995, and found that plaintiff was "stable from the cardiac standpoint." (R. at 205, 216, 531.)
On March 4, 1996, plaintiff saw Dr. Desai because of an "episode of chest pain" the previous week. (R. at 212, 549.) Dr. Desai adjusted plaintiff's medications and, based on an echocardiogram and stress echocardiogram, found plaintiff had "normal mitral and aortic valves" and "no pericardial effusion." (R. at 222.) On October 8, 1997, plaintiff had a chest x-ray which showed that he was "within normal limits." (R. at 278.)
(c) Spinal stenosis and back pain
On June 16, 1995, Dr. Jhaveri signed plaintiff out of work for a "backache." (R. at 164.) In September 1995, plaintiff saw Dr. Sunil K. Singh who prescribed a course of steroid injections. (R. at 215, 530.) On September 26, 1995, plaintiff received a cervical epidural steroid injection. On October 11, 1995 and on November 8, 1995, plaintiff received lumbar epidural steroid injections. (R. at 213-14, 528-29.)
Plaintiff saw Dr. Jhaveri on June 18, 1996 for his back pain. (R. at 235.) Dr. Jhaveri found "no evidence of nerve root compression to suggest a herniated disc," (id.), but scheduled him for a CT scan and instructed him to use a supportive lumbar brace and frequent moist heat. (R. at 236.) Plaintiff had the CT scan on June 28, 1996. (R. at 234, 475.) Dr. Morton B. Waldman reported that the CT scan "showed spinal stenosis, but without definite herniated disc." (R. at 233, 474.) He also told plaintiff to use a lumbar brace and frequent moist heat. (R. at 233, 476-77.)
On August 9, 1996, plaintiff requested a medical leave of absence from the Claridge Casino Hotel until September 30, 1996. (R. at 166.) Dr. Jhaveri completed several medical absence forms for the period based on plaintiff's spinal stenosis with radiculopathy. (R. at 139, 140, 151, 162, 167.) On September 4, 1996, plaintiff saw Dr. Fernando Delasotta for "low back pain radiating to the lower extremities." (R. at 237.) Dr. Delasotta diagnosed plaintiff with lumbar radiculopathy. (R. at 238, 473.) On February 20, 1997, Dr. Benjamin C. Epstein at Atlantic Cape Orthopedics saw plaintiff and found that he "has findings indicative of lumbosacral radiculopathy." (R. at 239-40.) He recommended a "course of conservative management with lumbar epidural steroids and facet block injections." (R. at 240.) Then, if plaintiff showed no significant improvement, he "would highly recommend that [he] get back with Dr. Delasotta for [he] would then need to consider spinal surgery." (Id.)
On February 29, 1997, Dr Jhavari signed plaintiff out of work for spinal stenosis and for knee pain for the period of February 7, 1997 through March 19, 1997. (R. at 438.) The return to work date was eventually extended to July 3, 1997. (R. at 154-55, 158, 159, 161, 404, 410, 413-14.)
Plaintiff saw Dr. Satish P. Shah on February 11, 1997 for his knee pain. He took an x-ray of plaintiff's left knee, but found no abnormality. (R. at 241.) On March 11, 1997, plaintiff saw Dr. Frederick G. Dalzell at Atlantic Shore Orthopaedic Associates, P.A. because of the knee pain, and received an injection of cortisone and a Chopat strap, and was instructed to apply ice to his knee. (R. at 133, 485.)
(d) Back surgery
Plaintiff was hospitalized from April 17 to 18, 1997 for back surgery; he had a bilateral microdiskectomy at the L4-L5 level. (R. at 130.) After surgery, "slow progressive improvement in symptomatology was noticed" and plaintiff was discharged with medication and instructions to follow an 1,800 calorie diet. Plaintiff had a follow-up visit with Dr. Delasotta on April 28, 1997. (R. at 132.) Dr. Delasotta found plaintiff had no leg pain, no motor deficit, and minimal low back discomfort, and instructed him to return to work in five weeks. (Id.) Dr. Jhaveri wrote a medical note stating that plaintiff could return to work with "no restrictions" on May 31, 1997. (R. at 436.)
Plaintiff returned to work, but on June 14, 1997, Dr. Jhaveri he excused plaintiff from work again, this time until June 30, 1997. (R. at 143, 153, 435.) On June 25, 1997, plaintiff saw Dr. Delasotta, told him that he had returned to work but had such lower back pain that Dr. Jhaveri took him out of work again. (R. at 258.) Dr. Delasotta examined plaintiff and found that he could ambulate without assistance and had no motor or sensory deficit, but did have a restricted range of motion of the lower back. (Id.) He ordered a CT scan. (Id.) Plaintiff had the CT scan on June 30, 1997. (R. at 128.) It found "mild annular bulging of the discs and a narrowed anteroposterior diameter to the spinal canal" that was causing a "spinal stenosis, mild to moderate in degree at the L4-5 level and mild in degree at L3-4 and L5-S1 levels." (Id.)
On July 3, 1997, Dr. Jhaveri extended plaintiff's return to work date to July 31, 1997 and stated he would "be able to return to work to perform his normal duties without limitations" then. (R. at 147, 160.) On July 7, 1997, plaintiff saw Dr. Delasotta who again found that plaintiff could ambulate without assistance and had no motor or sensory deficit, but had a restricted range of motion of the lower back. (R. at 256.) He recommended that plaintiff return to work with a brace or get myleography. (Id.)
Plaintiff applied for disability benefits on July 10, 1997, alleging an inability to work beginning on June 9, 1997. (R. at 54.) A Residual Functional Capacity Assessment was completed on August 5, 1997 and was adopted by a second physician on October 20, 1997. (R. at 265-72.) It states that plaintiff could occasionally lift twenty pounds and frequently lift ten pounds, could stand or sit for six hours in an eight hour day, and could push and or pull for an unlimited amount of time. (R. at 266.) Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl and had no manipulative, visual, communicative, or environmental limitations. (R. at 267.) On October 6, 1997, Dr. Kenneth Klausman of the Division of Disability Determination Services provided an independent medical evaluation. (R. at 273-75.) He found that plaintiff had a "history of diabetes, status post microdiskectomy L4, 5, [and] history of coronary artery disease" but that he appeared to be in "no acute distress." (R. at 274-75.)
On November 11 and 26, 1997, Dr. Ana M. Cilursu at Atlantic Rheumatology, P.C. saw plaintiff. (R. at 289, 292.) She diagnosed plaintiff with chronic generalized polyarthralgias, intermittent parasthesias, diabetes mellitus, and fatigue. (R. at 292.) She noted that he complained of low back pain, but that "he ran out of the medication several days ago and has had significant worsening of his symptoms" as a result. (Id.)
Plaintiff's hearing before ALJ Carl E. Stephan was held on June 3, 1998. (R. at 550-574.) Counsel for plaintiff, Julio L. Mendez, Esq., requested that the record remain open to submit one more report. (R. at 553.) The additional submission was a June 9, 1998 letter written by Dr. Jhaveri, in which he stated that plaintiff's "prognosis regarding disease status is poor. Mr. Carmelo Alicea needs to be under constant medical care and treatment for the rest of his life." (R. at 303, 446.) He also stated that:
[b]ased upon a reasonable degree of medical probability and upon the current physical findings, historical data and documentation that I have, Mr. Carmelo Alicea is not able to perform any type of gainful activity, manual labor or clerical, for the rest of his life. Mr. Carmelo Alicea is totally disabled due to multiple diseases involving multiple organs.
(Id.) ALJ Stephan considered the report. (R. at 23.)
3. Medical history after September 15, 1998
On September 15, 1998, ALJ Stephan issued a decision denying benefits to plaintiff. (R. at 19.) Plaintiff timely requested a review of the decision by the Appeals Council, and, on November 6, 2001, sent additional evidence to the Appeals Council. (R. at 10, 14-15, 309-10.) Some of the additional evidence duplicated medical records previously submitted, but most documented plaintiff's medical condition after the ALJ's September 15, 1998 decision. (R. at 10, 309-51.)
On November 24, 1999, plaintiff began a course of treatment with Dr. Singh for severe lumbosacral radiculopathy. (R. at 361.) He received epidural steroid injections on November 24, 1999 and December 3, 1999. (R. at 359.) He underwent epidurolysis on December 10, 1999. (R. at 357.) A December 27, 1999 test by Dr. Ashok R. Babaria showed a "[b]road based herniated disc at L5-S1 to the right side." (R. at 347.)
On September 19, 2000, plaintiff saw Dr. Zia Salam who found that plaintiff had uncontrolled type II diabetes, hypothyroidism, hypercholesterolemia with hypertriglyceridemia, polyarthritis, depression, hypertension, coronary artery disease, and spinal stenosis. (R. at 393.) She prescribed Glucophage and saw plaintiff again on November 19, 2000 to determine its effectiveness. (R. at 394-95.)
On May 11, 2001, plaintiff saw Dr. Singh at the Minimally Invasive Surgery Center. (R. at 337.) After examining plaintiff, Dr. Singh found that his skull/spine was abnormal, with "tenderness over the paraspinal muscles with spasm of muscles in the bilateral lubosacral spine area. Lumbar spine movement was restricted in flexion, extension and left and right sidebending with reproduction of pain on spinal movement." (Id.) He found plaintiff's motor system, muscle tone, muscle mass, gait, and psychiatric conditions were normal, but diagnosed plaintiff with "bilateral lumbosacral radiculopathy and mechanical low back pain" and prescribed a course of steroid injections. (Id.) Plaintiff received lumbar epidural steroid injections and epidurograms on May 18, 2001 and June 1, 2001. (R. at 328-29.) On May 18, 2001, Dr. Cummings provided a diagnostic report, finding "mild degenerative change of the lumbar spine . . . with no acute abnormalities noted." (R. at 348-49.)
On June 1, Dr. Singh found that the injections had provided relief for plaintiff's lumbosacral radiculopathy and mechanical low back pain, but found he was suffering from "severe painful cervical radiculopathy and mechanical neck pain." (Id.) He prescribed a cervical epidural steroid injection which plaintiff received on June 8, 2001. (R. at 330.)
On June 5, 2001, Dr. James Meshan at Atlantic Medical Imaging provided Dr. Singh with a report. (R. at 350.) He found "spondylosis at the level of C5-C6 with disc space narrowing and foraminal narrowing." (Id.) On June 15, 2001, Dr. Singh evaluated plaintiff again and found that there still was "tenderness over the paraspinal muscles with spasm of muscles in the right lumbosacral spine region." (R. at 339.) He prescribed a right lumbar facet block, which plaintiff received on June 27, 2001. (R. at 331, 339.)
On September 5, 2001, plaintiff saw Dr. Singh who found plaintiff needed a second lumbar facet block. (R. at 340.) He indicated that if the lumbar facet block did not provide sustained relief from the pain, plaintiff should then receive radiofrequency lumbar facet neurotomy. (Id.) Plaintiff received the second bilateral lumbar facet block at L4-S1 on September 13, 2001. (R. at 332.) On September 21, 2001, Dr. Singh found that plaintiff did have "chronic mechanical low back pain and lumbar facet joint syndrome" which warranted "radiofreqency lumbar facet neurotomy for longsustained pain relief." (R. at 341.)
On October 15, 2001, Dr. Jhaveri completed a medical source statement. He found that plaintiff could only sit for two hours in an eight-hour day, in fifteen-minute or less intervals, and could only stand for two hours in an eight-hour day, in thirty minute intervals. (R. at 325-26.) He also found that plaintiff needed to elevate his legs to waist height when seated, and needed to recline for one hour any time that he stood for thirty minutes, meaning that he would need three hours of resting time during every eight-hour day. (R. at 324-26.) He found that plaintiff could rarely lift one pound and could not stoop. (R. at 323.) He contributed the restrictions to plaintiff's herniated disc, myocardial infarction, hypertension, diabetes mellitus, insomnia, and major chronic depression. (R. at 322.)
II. DISCUSSION
In his September 15, 1998 decision, ALJ Carl E. Stephan found that there was substantial evidence that established that plaintiff was not disabled under the Social Security Act. (R. at 26.) Plaintiff has appealed this decision to this Court.
D. Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial review of the Commissioner's decision to deny a complainant's application for Disability Insurance Benefits. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold the Commissioner's factual decisions where they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). "Substantial evidence" means more than "a mere scintilla."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same decision, but whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). "[A] court must `take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997). The Commissioner must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The Third Circuit has held that an "ALJ must review all pertinent medical evidence and explain his conciliations and rejections." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000). An ALJ must also consider and weigh all of the non-medical evidence before him. Id. (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983); Cotter, 642 F.2d at 707).
The Third Circuit has held that access to the Commissioner's reasoning is indeed essential to a meaningful court review:
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.Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). A district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182. However, an ALJ need not explicitly discuss every piece of relevant evidence in his decision. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).
Apart from the substantial evidence inquiry, a reviewing court must satisfy itself that the Commissioner arrived at his decision by applying the proper legal standards. Sykes, 228 F.3d at 262;Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B. Standard for Disability Insurance Benefits
The Social Security Act defines "disability" for purposes of a plaintiff's entitlement to benefits as 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." 42 U.S.C. § 1382c(a)(3)(A). Under this definition, a claimant qualifies as disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated regulations for determining disability applicable to Disability Insurance cases. See 20 C.F.R. §§ 404.1501-404.1599. Under these regulations, substantial gainful activity is defined as "work that — (a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. Importantly, this definition presupposes a regular, continuing, and sustained ability to perform such work.Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987).
The Commissioner has promulgated regulations that determine disability by application of a five-step sequential analysis that is codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to the five-step process to determine if the plaintiff is "disabled" or "not disabled." 20 C.F.R. § 404.1520(a). This five-step process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, he will be found "disabled." If he is capable, he will be found "not disabled."20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is therefore dependent upon a finding that the claimant is incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.Wallace v. Secretary of Health Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of his claim by a preponderance of the evidence. Id. In the final step, the Commissioner bears the burden of proving that work is available for the plaintiff: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777.See Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C. Analysis
Plaintiff argues that the Commissioner's decision was flawed and not supported by substantial evidence because the Commissioner did not consider new evidence submitted by his counsel, did not establish that plaintiff's condition does not meet or equal a "listed impairment" at step three, and did not properly determine plaintiff's residual functional capacity at step five, and because the ALJ showed bias against plaintiff at the hearing. The pivotal issue at this time is whether the Commissioner needed to consider the evidence submitted to the Appeals Council by plaintiff's attorney on November 6, 2001. If so, then the case should be remanded for consideration of the evidence and the Court need not address the other arguments at this time.
If evidence is introduced into the record after the ALJ issues his decision, the Court may remand the case to the Commissioner of Social Security in certain circumstances because the Social Security Act provides that:
[t]he court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.42 U.S.C. § 405(g) (emphasis added). The Third Circuit has interpreted this section to require that three elements be met before a case may be remanded for consideration of new evidence.See Szubak v. Sec'y of Health Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). First, the evidence must be "new" and not merely cumulative of what is already in the record. Id. Second, the evidence must be "material." Id. Third, the claimant must have "good cause" for not incorporating the new evidence into the administrative record at the administrative proceeding. Id.
1. Evidence must be "new"
Much of the evidence submitted by plaintiff's council on November 6, 2001 is "new" evidence. New evidence must be new and must not be "merely cumulative of what is already in the record."Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985) (quotingSzubak, 745 F.2d at 833).
Plaintiff submitted many medical records dated after September 15, 1998. They clearly constitute new evidence in that they were not in existence when the ALJ issued his decision on September 15, 1998. They were also labeled as "evidence in addition to that which was before the Administrative Law Judge" by the Appeals Council. (R. at 10.) The Appeals Council, however, did not consider how the evidence dated after September 15, 1998 related to plaintiff's disability. While it stated that the "Appeals Council has also considered the contentions raised in your representative's letter dated November 6, 2001, as well as the additional evidence also identified on the attached Order of the Appeals Council," (R. at 7), it made clear that its "consideration" was a cursory check of the date on the records. It explained that the evidence that was dated "after the decision was issued" was "not material to the issue of whether you were disabled beginning on or before September 10, 1998," so would be returned to the plaintiff. (R. at 8.)
The evidence is also not cumulative of what was already in the record. It includes diagnoses by at least four doctors that plaintiff had not seen before, namely Drs. Babaria, Salam, Cummings, and Meshan. (R. at 347, 392-93, 348-49, 350.) All found that plaintiff had a problem with his back based on their diagnostic testing and two referred to the chronic nature of his complaints. (See R. at 347 (stating "patient has a history of laminectomy at L4-5); R. at 392 (stating plaintiff "has past medical history of diabetes mellitus type II for 20 years, MI in 1994, depression, spinal stenosis and polyarthropathy)). The evidence also includes additional treatments that plaintiff underwent to try to remedy the pain. In 1999, he underwent an epidurolysis and received two steroid injections. (R. at 357-61.) In 2001, he received two epidural steroid injections, a cervical epidural steroid injections, and two lumbar facet blocks. (R. at 328-30, 332-39.) Dr. Singh prescribed the treatments at the minimally invasive surgery center based on abnormal test results and on plaintiff's inability to find sustained relief from the pain. (See, e.g. R. at 340-41, 362-65.)
The Appeals Council did correctly note that "some of the evidence provided by your attorney . . . consists of duplicates of evidence already in file." (R. at 7-8.) In remanding this case, the Court does not expect the Commissioner to consider the duplicates. However, it should be clear on remand that the reports to be considered as "new" medical reports are the reports dated after September 15, 1998.
2. Evidence must be "material"
The evidence that plaintiff submitted is material. The materiality standard requires that the evidence be relevant and probative, and that there be a "reasonable possibility that the new evidence would have changed the outcome of the [disability] determination." Newhouse, 753 F.2d at 287 (quoting Szubak, 745 F.2d at 833). Implicit in the materiality requirement is the requirement that the "new evidence relate to the time period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition." Id. (citing Ward v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982)). Evidence created after the ALJ's decision, however, may be considered if it is probative of the "nature of the disease or disability" for which benefits were denied because it discloses the "severity and continuity" of the impairment.Ward, 686 F.2d at 765 (citing Kemp v. Weinberger, 522 F.2d 967, 979 (9th Cir. 1975)); Lisa v. Sec'y of Health and Human Servs., 940 F.2d 40, 44 (2d Cir. 1991); see also Newhouse, 753 F.2d at 288 (remanding for consideration of hospitalization that occurred after Appeals Council decision); Szubak, 745 F.2d at 834 (remanding for consideration of five medical reports compiled after Secretary's determination).
Here, the medical reports are material to the issue of plaintiff's disability as they show his ongoing treatments for the "severe impairments" considered by the ALJ, namely "coronary artery disease with a myocardial infarction, diabetes mellitus, low back pain, and multiple arthralgias." (R. at 20.) They show that plaintiff has continued to treat his back pain and has received steroid injection treatments in 1999 and 2001 to treat ongoing pain. (R. at 357-61.) They also show a nephrologist in 2000 found that his diabetes was "uncontrolled." (R. at 393-95.)
There is also a reasonable probability that the new records could change the disability determination here. In his decision, ALJ Stephan determined that plaintiff "apparently had a good result from his [back] surgery [performed in 1997], in that, his treating neurosurgeon, F. Delasotta, M.D., released him to return to work as of July 7, 1997. (R. at 21.) However, the new evidence shows that plaintiff has not returned to work and that he has continued to unsuccessfully treat his back pain. In 2001, Dr. Singh found that the steroid injections and lumbar blocks were not providing plaintiff with sustained relief, so that radiofrequency lumbar facet neurotomy would be appropriate. (R. at 341.) ALJ Stephan also found that plaintiff's diabetes were "controlled on insulin." (R. at 22.) The record now includes evidence that his diabetes was uncontrolled in 2000. (R. at 393.) ALJ Stephan discounted Dr. Jhavari's June 9, 1998 report, which found that plaintiff would require medical care for the "rest of his life," because it was "not supported by objective medical evidence in the record." (R. at 23.) Objective medical evidence now supports the chronic nature of his complaints and verifies plaintiff's testimony of disabling pain. Dr. Singh's reports, in particular, show that he has consistently found plaintiff suffers from "bilateral lumbosacral radiculopathy and mechanical low back pain" requiring increasingly escalating treatments.
ALJ Stephan also found that plaintiff could perform "the full range of light work." Light work requires:
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting more of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.20 C.F.R. § 404.1567(b). The record now includes the October 15, 2001 report of Dr. Jhaveri which states that plaintiff can only sit or stand for two hours in an eight-hour day and can only rarely lift one pound. (R. at 322-26.)
Based the new evidence, therefore, it is arguable that upon reconsideration of the record as a whole, an ALJ could find substantial evidence to support a conclusion that plaintiff is disabled under the terms of the Social Security Act.
3. Claimant must have "good cause" for not presenting material earlier
Plaintiff has shown good cause for not presenting the new medical reports to the ALJ. To justify a remand based on new evidence, the plaintiff must present "some justification for the failure to acquire and present such evidence to the Secretary."Szubak, 745 F.2d at 834. Otherwise, a claimant "might be tempted to withhold medical reports, or refrain from introducing all relevant evidence, with the idea of `obtaining another bite of the apple' if the Secretary decides that the claimant is not disabled." Id.
Here, the plaintiff had good cause for not presenting the 1999, 2000, and 2001 medical records to the ALJ, because the records were nonexistent in 1998 when ALJ Stephan considered plaintiff's case. Moreover, the record does not indicate that plaintiff was trying to withhold relevant records, seek records or greater weight, or "back-door appeal" his case. Instead, the record shows that plaintiff continued his treatment with Drs. Jhaveri and Singh through 2001 and that his counsel submitted the medical records of his treatments to the Appeals Council before it made its decision. The Appeals Council erred in failing to consider these probative and substantial records of the plaintiff's treating physicians, who are also specialists in their fields, and plaintiff has met the Szubak test for remand under the circumstances of this case.
For these reasons, this Court finds that plaintiff had good cause for submitting new evidence that was material to his claim and that remand is necessary so that the Commissioner can consider the new, material evidence to determine whether plaintiff is disabled.
III. CONCLUSION
For the reasons stated above, the Commissioner's finding that the plaintiff is "not disabled" must be reconsidered in light of new evidence offered. This Court will vacate the Commissioner's decision denying the Plaintiff's Disability Insurance Benefits and will remand this case for further consideration consistent with this opinion.
The accompanying Order is entered.
ORDER
This matter having come before the Court upon plaintiff Carmelo Alicea's application to review the final decision of the Commissioner of the Social Security Administration denying his application for Disability Insurance Benefits under Title II of the Social Security Act; this Court having considered the record and the submissions of the parties; for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS on this day of March, 2003, hereby
ORDERED that the final decision of the Commissioner be, and hereby is, VACATED and REMANDED for further proceedings, specifically to consider new evidence offered by plaintiff's counsel relating to plaintiff's medical condition after September 15, 1998 consistent with the directives set forth in the accompanying Opinion.