Opinion
C/A No. 0:16-3197-CMC-PJG
01-10-2018
Regan I. Blanchard, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Regan I. Blanchard, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In March 2014, Blanchard applied for DIB, alleging disability beginning February 21, 2014. Blanchard's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on January 29, 2016, at which Blanchard appeared and testified, and was represented by Robertson H. Wendt, Jr., Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on February 17, 2016 finding that Blanchard was not disabled from February 21, 2014 through the date of the decision. (Tr. 26-38.)
Blanchard was born in 1963 and was fifty years old on his disability onset date. He has a high school education and has past relevant work experience as a public service commissioner, a business development director, and a store manager of a grocery store. (Tr. 239.) Blanchard alleged disability due to degenerative disease of the thoracic and lumbar spine, chronic pain, radiculopathy, degenerative disc disease of the left shoulder, complications from winged scapular, and drowsiness from medications. (Tr. 238.)
In applying the five-step sequential process, the ALJ found that Blanchard had not engaged in substantial gainful activity since his alleged onset date of February 21, 2014. The ALJ also determined that Blanchard's degenerative disc disease and myofascial pain syndrome were severe impairments. However, the ALJ found that Blanchard did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that Blanchard retained the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except with some limitations. Due to postural limitations, the claimant is capable of occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps or stairs.
However, the claimant must avoid all climbing of ladders, ropes, and scaffolds. Environmentally, the claimant must avoid all exposure to workplace hazards.(Tr. 30.) The ALJ found that Blanchard was unable to perform any past relevant work, but that Blanchard had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy. Therefore, the ALJ found that Blanchard was not disabled from the alleged onset date of February 21, 2014 through the date of the decision.
Blanchard submitted additional evidence to the Appeals Council which denied his request for review on August 4, 2016, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Blanchard raises the following issues for this judicial review:
I. The Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of the newly submitted evidence.(Pl.'s Br., ECF No. 16.)
II. The ALJ reversibly erred by improperly evaluating Mr. Blanchard's credibility.
III. New evidence from Steven Poletti, M.D., an orthopedic surgeon, warrants remand under sentence six of 42 U.S.C. § 405(g).
IV. The ALJ failed to set forth the requisite good cause for rejecting the opinion of Dr. Netherton, Mr. Blanchard's long time treating pain specialist.
DISCUSSION
As explained by Blanchard in his brief, his first issue stems from the fact that after the ALJ's decision, Blanchard submitted new medical evidence to the Appeals Council consisting of (1) a letter from Michael Blanchard (who is Blanchard's brother as well as President of Charles Blanchard Construction Corporation, which is Blanchard's former employer), and (2) a more detailed statement dated April 21, 2016 from Dr. Mark Netherton (Blanchard's treating physician). (See Tr. 304-05, 643-45.) Blanchard relies on both of these items in arguing that remand is warranted.
With regard to the letter from Michael Blanchard, Blanchard relies on Michael's statements that while Blanchard worked for the family business, Blanchard's
ability to work diminished as his pain became more frequent. The last couple of years he could not even sit at his desk for more than an hour or so at a time and his ability to meet with clients became almost non-existent. The pain impeded his ability
to concentrate and he would gasp for air in the middle of a sentence when talking to people. [Blanchard]'s hours of work decreased to less than 20 hours per week and his ability to bring new jobs to the company was less than 10 percent of past years. He was not able to do his job even with ultimate flexibility in scheduling and very light physical exertion required.(Tr. 304). Blanchard also points to Michael's statements that they kept Blanchard "as long as we could because we didn't think he would be able to find another job . . . that would be as accommodating. Times were tough and the company was not making any money when we let [Blanchard] go." (Id.) Michael also stated that Blanchard "tried everything he could to work but his pain was becoming unbearable. . . . When he was able to work he did a great job but the last couple of years were nonproductive." (Tr. 305.)
With regard to Dr. Netherton's statement, Blanchard points out that Dr. Netherton first detailed Blanchard's history of pain and treatment and then relies on the following excerpts:
Since that time, Mr. Blanchard has had a string of injections, medications, physical therapy and revision of his spinal neurostimulator to provide pain relief. To this date Mr. Blanchard is a chronic pain patient. He has chronic left shoulder pain, chronic scapular pain, chronic thoracic pain, chronic low back pain, and chronic lumbar radiculopathy. His most recent scan showed that he has spondylosis throughout the thoracic spine with loss of disc height and spondylitic changes throughout the thoracic spine. He also has a laminotomy and paddle lead placed at the T9-10 level. He also has degenerative disc disease and a disc disorder at the L4-5 and L5-S1 level with some notable compression of the S1 nerve and stenosis at the L5-S1 level. . . . His diagnosis continues to be thoracic spondylosis, lumbar spondylosis, lumbar degenerative disease, chronic lumbar radiculitis, wing scapula, chronic shoulder pain status post shoulder surgery, and piriformis syndrome. His prognosis and potential for resolution of these issues is poor.
. . . I have indicated multiple times throughout the years that I have been seeing Mr. Blanchard that a lot of his pain is myofascial in nature, which basically is in reference to a large amount of the patient's complaint. He complained continually of muscular pain in the left shoulder, muscular pain around the scapula, around the rib, the flank area, and the buttock and low back area. All of these areas have a significant amount of muscular and certainly can be sore. Mr. Blanchard, however, does have underlying disease in these areas, which has been noted above with an injury to his
shoulder and an apparent injury to the long thoracic nerve causing a wing scapula. He has had some injury to the thoracic spine causing spondylosis and degenerative disease which can lead to chronic musculoskeletal pain and to degenerative disease in the lumbar spine leading to buttock and lower extremity pain and with piriformis syndrome which leads to buttock pain but also neuropathic pain in the lower extremities as this problem led to some compression of the sciatic nerve and then scarring around the sciatic nerve after a piriformis release surgery at the sciatic nerve and piriformis level. Despite the fact that Mr. Blanchard has a significant amount of myofascial complaints, he has certainly objective underlying pathology in both the thoracic and lumbar spine level as well as having surgery and post-surgical findings noted in the left shoulder. . . . I did note [on] some of the disability [paper]work that the fact that Mr. Blanchard got better after some of the injections and felt that he had improved to some degree after injections and medications were held against him in his disability hearing; however, if Mr. Blanchard received no relief from any of the injections or medications that we were giving him we would certainly have stopped these years ago. . . .
However, unfortunately as these therapies do not resolve the situation the pain will return. Therefore, the epidural injections will wear off and the patient will have return of his pain. The pain medications will wear off and the patients [sic] will have return of their pain. There is, unfortunately for Mr. Blanchard, no surgeries to resolve the nerve injury in his shoulder, no surgeries to resolve his thoracic spondylosis, no surgeries to resolve the degenerative disease in his thoracic spine, no surgeries to resolve the degeneration in the lumbar spine into L5/S1and the L4-5 level that would give the patient a high degree of potential to resolve these pain issues. During the time that I have treated Mr. Blanchard he has worked multiple jobs. . . . [U]nfortunately at each of these jobs the patient has had significant problems with pain and maintaining his activity level because of chronic pain in all of the areas as listed above. Even when Mr. Blanchard has been off work and at home with his children he has continued chronic pain and has to watch his activities. His pain is consistent. It occurs every day. Even with activities of daily living the patient has pain, and if he overexerts himself he has to rest for [a] prolonged period of time. . . . I certainly believe that this patient's pain is real. I have known him for a long time and have seen his pain wax and wane in relation to the activities that he tries to keep up with.
He currently is on a significant amount of chronic pain medications to include Lyrica and Norco which can definitely cause cognitive impairment and cause drowsiness after he takes these medications. This can also decrease his potential and cause cognitive problems enough to interfere with a daily job. . . . Again, at this point it is my opinion that Mr. Blanchard is not capable of gainful employment, that he is not capable of even sustaining a sedentary level job and he has chronic pain. He is on chronic pain medications. He will continue to need the medications and injections
to even be able to sustain activities of daily living. I do not think that a lot of the diagnoses noted above were taken into account, and at least in my reading some of the findings above that Mr. Blanchard has no neurologic deficits and no significant anatomic findings is incorrect. Therefore, I have summarized above Mr. Blanchard's significant medical issues that have included at least three surgeries that have significant long-term sequella, multiple findings on his MRI scans and CT scans that show he has underlying disease and is consistent the patient's complaints of pain in the areas that the patient complains of. I do feel all of these conditions are permanent. I do feel that what Mr. Blanchard has is degenerative in nature. Unfortunately it will continue to decline his abilities, and I do feel that overexertion will exacerbate his problems and will cause further damage to his thoracic and lumbar pine as well as to his left shoulder. We will continue to see Mr. Blanchard on an every one to three month basis to maintain his chronic pain.(Tr. 644-45).
The Appeals Council admitted both of these pieces of evidence into the record and considered it. (Tr. 2-5.) However, the Appeals Council summarily stated that it "found that this information does not provide a basis for changing the Administrative Law Judge's decision. You submitted a letter from Dr. Netherton but the Administrative Law Judge has already evaluated several statements from this source in the decision." (Tr. 2.)
The law provides that evidence submitted to the Appeals Council with the request for review must be considered in deciding whether to grant review "if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision." Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991) (en banc) (quoting Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990)). Evidence is new "if it is not duplicative or cumulative." Id. at 96. "Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Id. When a claimant seeks to present new evidence to the Appeals Council, he is not required to show good cause for failing to present the evidence earlier. Id. at 96 n.3; cf. 20 C.F.R. § 404.970(b).
In this case, the parties do not appear to dispute that the additional evidence relates to the period on or before the date of the ALJ's decision.
The court notes that effective January 17, 2017, this subsection was amended to require the claimant to show good cause for not informing the ALJ about or submitting the evidence prior to the hearing. However, because the decision of the Appeals Council was issued prior to the effective date of that amendment, the court applies the prior version of the regulation in effect at the time of the Appeals Council's decision.
Furthermore, the United States Court of Appeals for the Fourth Circuit has explicitly held that "[t]he Appeals Council need not explain its reasoning when denying review of an ALJ decision." Meyer v. Astrue, 662 F.3d 700, 702 (4th Cir. 2011). In determining whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard, the court must " 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.' " Id. at 704 (alterations in original) (quoting Wilkins, 953 F.2d at 96). If the court cannot determine whether, in light of the additional evidence submitted, the Commissioner's decision is supported by substantial evidence, remand is warranted. Meyer, 662 F.3d at 707 (reversing and remanding the Commissioner's decision because upon considering the whole record, including the new evidence submitted to the Appeals Council, the court could not determine whether substantial evidence supported the ALJ's denial of benefits). The Meyer Court recognized, however, that in some cases the record would clearly show that the additional evidence did not cause the ALJ's decision to be unsupported by substantial evidence. See id. (discussing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996)).
According to Blanchard, the new evidence warrants remand for further consideration by the ALJ under controlling law in part because this evidence contradicts and/or addresses the alleged inaccuracy of some of the reasons offered by the ALJ in discounting Dr. Netherton's other opinions and in discounting Blanchard's subjective complaints of pain. For example, Blanchard asserts that Dr. Netherton's new letter provides further explanation as to the objective evidence supporting his opinion and supports Blanchard's testimony that his pain medications cause drowsiness. Further, Blanchard argues that the evidence from his brother and former employer is entirely new evidence that offers additional support for Blanchard's testimony that accommodations were provided by his family's company and even attempts at minimal work have increased his pain.
The Commissioner argues that remand is not warranted and asserts that the new evidence "was not material evidence raising a reasonable possibility that the outcome would be different if it had been timely presented to the ALJ." (Def.'s Br. 7, ECF No. 18 at 7.) Specifically, the Commissioner argues that the ALJ had already considered Dr. Netherton's other opinions as well as his treatment evidence and that the new evidence does not fill an evidentiary gap that played a role in the ALJ's decision. However, the court is constrained to disagree.
Upon review of the record as a whole, including the new evidence that the Appeals Council specifically incorporated into the administrative record, the court is unable to determine whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard. Meyer, 662 F.3d at 704. As discussed above, the Appeals Council is not required to explain its reasoning in denying review. However, the court cannot tell whether the Commissioner's decision is supported by substantial evidence based on the circumstances of this case because the Appeals Council did not provide sufficient explanation for its finding that the additional evidence did not provide a basis for changing the ALJ's decision. Specifically, the court finds that the ALJ may well change his opinion in light of the additional evidence from Dr. Netherton, which specifically addresses some of the primary reasons offered by the ALJ in discounting Dr. Netherton's opinions as well as Blanchard's testimony. See Wilkins, 953 F.2d at 96 ("Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome."). The court has thoroughly reviewed the Commissioner's arguments in support of her position that there is not a reasonable possibility that the additional evidence would change the ALJ's decision; however, without any substantive analysis by the Appeals Council (other than stating that the ALJ already considered other opinions from Dr. Netherton) and based on the facts and circumstances of this case, the court is simply unable to agree. Therefore, the court is constrained to recommend that this matter be remanded.
The court expresses no opinion as to whether further consideration of the evidence by the ALJ should lead to a finding of disability during the time period at issue. Further analysis and discussion may well not affect the ALJ's conclusions in this case.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Blanchard's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Blanchard may present his remaining arguments on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE January 10, 2018
Columbia, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).