Opinion
CIVIL ACTION NO. 9:18-484-MGL-BM
04-08-2019
MARY KIMBRELL, Plaintiff, v. NANCY A. BERRYHILL Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) on September 12, 2014 (protective filing date), alleging disability beginning August 3, 2009, due to lower back pain, sleep apnea, nerve damage in arms/feet, depression, and neuropathy. (R.pp. 13, 173-174, 222). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on January 6, 2017. (R.pp. 30-62). The ALJ thereafter denied Plaintiff's claim in a decision issued May 12, 2017. (R.pp. 13-24). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).
Prior to Plaintiff's filing of this DIB claim, she had filed a previous DIB claim that was denied at the initial level in November 2012. (R.p. 219).
Plaintiff did not raise the issue of incontinence (which is the impairment at issue in this court case) until her administrative hearing. She did not raise this condition as an impairment in her original filings. See discussion, infra.
Plaintiff then filed this action in this United States District Court, asserting that there is not substantial evidence to support the ALJ's decision and that the decision should be reversed and remanded for further consideration. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by 'substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was forty-two years old on the date she alleges she became disabled, and forty-seven years old on the date that she was last insured on December 31, 2014, has a high school education (plus a year of college) and past relevant work experience as a customer service clerk and a front desk clerk. (R.pp. 13, 23, 36, 173-174 ). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.
To be eligible for DIB benefits, the claimant must prove that she was disabled prior to her date last insured. Bird v. Commissioner, 699 F.3d 337, 340 (4th Cir. 2012) (citing 42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. §§ 404.101(a), 404.131(a) ).
After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of a spine disorder, peripheral neuropathy, sleep apnea, and obesity, she nevertheless retained the residual functional capacity (RFC) to perform a reduced range of light work through her last day insured, with limitations to lifting twenty (20) pounds occasionally and ten (10) pounds frequently; sit/stand/walk for six (6) hours out of an eight-hour day; frequently climb ramps and stairs and balance; and occasionally climb ladders, ropes, or scaffolds, stoop, kneel, crouch, or crawl. (R.pp. 15, 19). At step four, the ALJ found that Plaintiff was not disabled because she was capable of performing her past relevant work as a retail manager and secretary as these jobs are generally performed in the national economy with these limitations. (R.pp. 2-23). The ALJ also obtained testimony from a vocational expert and found, alternatively, that even if Plaintiff was prevented from performing her past relevant work, she could nonetheless still perform other jobs existing in significant numbers in the national economy with her limitations, and was therefore not entitled to disability benefits during the time period at issue. (R.pp. 23-24, 57-59).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
"Light work involves 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 most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
Plaintiff asserts that in reaching this decision the ALJ erred by failing to properly evaluate her significant limitations resulting from her incontinence and by failing to provide an adequate discussion for why he rejected those limitations. Plaintiff further argues that the Appeals Council erred by failing to properly evaluate new evidence submitted as part of her appeal. However, after a careful review and consideration of the evidence and arguments presented, the undersigned finds and concludes for the reasons set forth hereinbelow that there is substantial evidence to support the decision of the Commissioner, and that the decision should therefore be affirmed. Laws, 368 F.2d at 642 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].
(Incontinence)
Plaintiff's initial argument is that the ALJ erred in his evaluation of her incontinence. As noted, Plaintiff did not raise the issue of incontinence as being a disabling condition until the ALJ hearing in 2017, when she testified that she had been experiencing urinary incontinence issues since 2008. (R.pp. 45-46). Plaintiff's medical records reflect that on May 10, 2012, Dr. Chris Nowatka wrote that Plaintiff continued to have "pretty serious problems with incontinence despite having a gynecological procedure." Dr. Nowatka prescribed NuVigil and referred Plaintiff to a urologist for continued incontinence. (R.pp. 302-304). Thereafter, on May 30, 2012, Dr. Lee Arnett, Jr. diagnosed Plaintiff with urinary incontinence, dyspareunia, and ruled out urinary tract infection. (R.p. 305). He ordered diagnostic testing, and on June 6, 2012, Plaintiff underwent a urodynamic evaluation. (R.pp. 306-314). Dr. Arnett opined that Plaintiff emptied her bladder well, demonstrated good sensation, detrusor demonstrated decreased capacity and good compliance with no evidence of detrusor instability, EMG behaved appropriately, after instructions - fair kegel exercise demonstrated, no evidence of urinary leakage, Plaintiff did not strain to void for pressure flow, and she tolerated the procedure well. (R.p. 305).
A muscle which forms a layer of the wall of the bladder.
Kegel exercises strengthen the pelvic floor muscles, which support the uterus, bladder, small intestine, and rectum.
On April 7, 2014, Dr. T. Fleming Mattox evaluated Plaintiff for urinary incontinence. Plaintiff's main complaint was urge incontinence, but she also had symptoms of stress as well. Dr. Mattox noted that Plaintiff was postmenopausal with symptoms consistent with frequency and urgency, and indicated that he would defer testing for now and would try Plaintiff on Sanctura. (R.pp. 357-359). He then opined that if that was ineffective, he would recommend urodynamics. Over a year later, on June 3, 2015, Dr. Mattox performed sling revision surgery. (R.pp. 494-495). On July 12, 2016, Dr. Mattox evaluated Plaintiff and performed urodynamics testing, following which he opined that Plaintiff had urgency at 150 mls and could not suppress leakage and lost all volume. Dr. Mattox indicated that Plaintiff's bladder pressure remained elevated. He started Plaintiff on Vesicare. (R.pp. 573-574). Almost two years after the date that Plaintiff was last insured, Dr. Mattox completed a questionnaire on November 12, 2016, opining that Plaintiff would be required to frequently interrupt tasks during the working portion of the work day. He further opined that Plaintiff would most probably have to excuse herself during an eight-hour work day because of her incontinence problems on an hourly basis for approximately 5 minutes at each instance. Dr. Mattox indicated that this was due to Plaintiff's urinary incontinence, and that his opinions were based on urodynamic data and multiple medication failures. (R.p. 616).
This was now well after Plaintiff's eligibility for DIB had expired.
In making his findings and decision with respect to this impairment, the ALJ specifically considered Plaintiff's complaints of urinary incontinence, her treatment notes from May 2012 reporting Plaintiff's 2008 trans-vaginal sling procedure with mesh, and her current problems with incontinence and that she was starting on medication. The ALJ also noted that Dr. Mattox had evaluated the Plaintiff for urinary incontinence in April 2014 and prescribed medication. However, the ALJ noted that while the May 2012 treatment notes document Plaintiff's report of vaginal and lower abdominal discomfort and that she needed to change clothes two to three times a day, that it further documented that Plaintiff apparently did not use perineal padding. (R.pp. 15-16). This finding was further supported by Plaintiff's testimony at the hearing, where she testified that although she did begin to use padding status-post mesh removal surgery in 2015, she did not use padding prior to her date last insured. (R.pp. 16, 46-47, 305). The ALJ also noted the urinary flow study from June 2012 which, although showing Plaintiff's detrusor demonstrated decreased capacity, also showed no evidence of detrusor instability, no evidence of urinary leakage, and was otherwise normal including that Plaintiff emptied her bladder well, demonstrated good sensation, and that fair Kegel exercise was demonstrated. (R.p. 16, 305-306). Accordingly, the ALJ concluded that Plaintiff's urinary incontinence had no more than a minimal effect on her ability to perform basic work activity during the relevant time period and was therefore non-severe.
In making this determination, the ALJ further specifically considered the November 2016 medical source statement of Dr. Mattox, wherein he stated that Plaintiff would require frequent breaks during a workday and would have to excuse herself once an hour during an eight-hour day due to incontinence problems. However, the ALJ noted that Dr. Mattox's 2016 opinion did not provide any insight into the severity of this condition on or before December 31, 2014, the date Plaintiff was last insured. This is of particular import considering Plaintiff's testimony at the hearing that her urinary incontinence became worse after the sling removal in the summer of 2015, which was after her eligibility for DIB had expired. (R.pp. 16, 46-47, 616). Therefore, the ALJ gave little weight to this opinion. (R.p. 16).
Plaintiff's own testimony supports the ALJ's severity finding with respect to this condition. Plaintiff testified that when she first saw Dr. Mattox in April 2014 with a complaint of urinary incontinence, her treatment was initially with medication only. (R.pp. 51-53). Moreover, although Plaintiff testified that at that time she "had to have two to three changes of clothes with [her] at all times", she also acknowledged that she did not wear perineal pads or adult diapers due to urinary incontinence at any time through 2014. (R.pp. 45-47, 51, 53). To the contrary, Plaintiff testified that she did not need to wear perineal pads or adult diapers until 2015, after her surgery that summer. (R.pp. 45-47, 53). When specifically asked if she needed them prior to that surgery, she testified "[n]o. I never had to use nothing like that." (R.p. 47). Additionally, it is noted that in September 2014, only a few months before Plaintiff's eligibility for DIB expired, she completed a Disability Report-Adult Form SSA-3368 where she was asked to "[l]ist all of the physical and mental conditions . . . that limit your ability to work." Plaintiff responded by listing lower back pain, sleep apnea, nerve damage in arms/feet, depression, and neuropathy as impairments limiting her ability to work. (R.p. 222). Plaintiff made no reference to incontinence as a basis for any limitation on her ability to work. Thereafter, on November 16, 2014, approximately six (6) weeks prior to the date her eligibility for DIB expired, Plaintiff completed a Function Report-Adult listing details about her alleged impairments and limitations. (R.pp. 230-237). She again made no mention of urinary incontinence, or difficulties or limitations arising from any such condition, as a basis for any disability. (R.pp. 230-237). Mickles v. Shalala, 29 F.3d 918, 925-926 (4th Cir. 1994) [In assessing the credibility of the severity of reported subjective complaints, consideration must be given to the entire record, including the objective and subjective evidence].
The ALJ set forth and cited to substantial evidence in the case record to justify his finding that Plaintiff's claim of incontinence was not of a disabling severity, and no basis for a reversal of the decision is shown in this record. See Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964) [court scrutinizes the record as a whole to determine whether the conclusions reached are rational]; Andreolli v. Comm'r of Soc. Sec., 2008 WL 5210682, at *4 (W.D.Pa. Dec. 11, 2008) ["It is well settled that a claimant need not be pain-free or experiencing no discomfort in order to be found not disabled"] (citing Welch v. Heckler, 808 F. 2d 264, 270 (3d Cir. 1986)); see also Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]; Poling v. Halter, No. 00-40, 2001 WL 34630642, at * 7 (N.D.W.Va. Mar. 29, 2001)["It is the duty of the ALJ, rather than the reviewing court, to assess the evidence of record and draw inferences therefrom"]. Therefore, Plaintiff has not shown that the ALJ committed reversible error in his evaluation of her incontinence, or in finding that this was not a severe impairment during the relevant time period, and this claim should be dismissed. See Bowen, 482 U.S. at 146 [It is the Plaintiff who has the burden to show that she has a disabling impairment]; see also Kellough v. Heckler, 785 F.2d 1147, 1149 (4th Cir. 1986) ["If the Secretary's dispositive factual findings are supported by substantial evidence, they must be affirmed, even in cases where contrary findings of an ALJ might also be so supported."] (citation omitted).
(Evidence Submitted to the Appeals Council)
Plaintiff next asserts that this case should be remanded because the new evidence submitted to the Appeals Council might have affected the Commissioner's decision. This evidence included a letter dated July 17, 2017 from Dr. Mattox in which he stated that he had treated Plaintiff for years for a number of problems, including incontinence. Dr. Mattox then explained,
There are three tiers of incontinence. . . and at tier three you use surgery and other means. [Plaintiff] was a tier three, which is the most severe sort of incontinence. We know that she was having serious incontinence because she underwent urodynamic testing. This is a series of tests that measure the tendency of the bladder walls to spasm excessively or relax as well as meansure urthral activity. The tests revealed she had severe uncontrolled bladder activities. For that reason we are confidant that she was urinating frequently and involuntarily during the day and would have to get up
at frequent intervals and change pads, would often have to get up quickly and try to dash to the bathroom to avoid urination so that she would be up and on her feet and into the bathroom several dozen times a day. Each of these trips would of course take an absolute minimum of five minutes if she was at a place right by a bathroom.(R.p. 7). The Appeals Council stated in its decision denying Plaintiff's appeal that "[y]ou submitted a letter from Thomas Mattox, MD dated July 17, 2017 (1 page). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider and exhibit this evidence." (R.p. 2).
We attempted to control this problem with a Suburethral sling which was unsuccessful. We also attempted to control it with botox which was successful on a temporary basis, but was not permanently successful and she was really left with a problem that was ultimately intractable.
This problem persisted well before the urodynamic test in 2016, she had this problem at their three level in 2015 and I am satisfied that she would have to have been taking breaks as described above prior to 2015.
The regulatory provisions governing the Appeals Council's consideration of new evidence, 20 C.F.R. §§ 404.970, 416.1470, changed in 2017. The prior version of those regulations, in effect until January 16, 2017, provided as follows:
If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the [ALJ] hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the [ALJ] hearing decision. It will then review the case if it finds that the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record.20 C.F.R. §§ 404.970(b), 416.1470(b) (1987). In Meyer v Astrue, 662 F.3d 700 (4th Cir. 2011) which was decided prior to the new amendments to the regulatory provisions at issue, the Fourth Circuit held that where a claimant submits additional evidence that was not before the ALJ when requesting review by the Appeals Council, if the evidence is new and material the Appeals Council is to evaluate the entire record, including the new and material evidence, to see if it warrants any change in the ALJ's decision. If, after this evaluation, the Appeals Council finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record, it will grant the request for review and either issue its own decision on the merits or remand the case to the ALJ. Conversely, if upon consideration of the evidence, including any new and material evidence, the Appeals Council finds that the ALJ's action, findings or conclusions are not contrary to the weight of the evidence as a whole, the Appeals Council can simply deny the request for review. See generally, Meyer, 662 F.3d at 704-705.
The new version, effective January 17, 2017, with compliance by claimants required by May 1, 2017, see Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987-01, 90987, 2016 WL 7242991 (Dec. 16, 2016), provides as follows:
(a) The Appeals Council will review a case if—20 C.F.R. §§ 404.970, 416.1470 (2017). Thus, the new regulations add two requirements to a claimant's burden to have new evidence considered by the Appeals Council in connection with a request for review: (1) a requirement that a claimant demonstrate good cause for the failure to submit the evidence in question at least five days prior to the ALJ's decision pursuant to 20 C.F.R.§§ 404.953, 416.1453; and (2) a requirement to show a reasonable probability of a different outcome.
...
(5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.
(b) The Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in § 404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier.
Here, the undersigned finds that a review of the entire record, including the records submitted to the Appeals Council, fails to show that the Appeals Council committed reversible error in denying consideration of Dr. Mattox's letter, as Dr. Mattox's July 2017 opinion is not supported by his own records or by the records of the other treating or examining medical providers for the relevant time period prior to Plaintiff's date that she was last insured in December 2014. Specifically, although the record, including the letter submitted to the Appeals Council, contains treatment notes from Dr. Mattox, there is no evidence that shows Plaintiff had the listed limitations prior to December 2014. Dr. Mattox does not explain why his opinion changed to Plaintiff would have to go to the bathroom several dozen times a day verses his opinion in January 2016 (which was itself well after Plaintiff's eligibility for DIB had expired) wherein he opined that Plaintiff would only need to go to the bathroom once every hour. (R.pp. 7, 616). Moreover, unlike in Meyer, the record before the ALJ already contained an opinion from the treating physician whose opinion was before the Appeals Council. Cf. Meyer, 662 F.3d at 706 [Finding reversal required where "[t]he new evidence constitute[d] the only record evidence as to the opinion of the treating physician."]. Hence, unlike in Meyer, the opinion of Dr. Matttox does not fill in an evidentiary gap, as in this case there are numerous records from treating and examining physicians, including Dr. Mattox, covering the relevant time period. As previously noted, these records also include two occasions (one only a few months prior to December 2014 and the other only six weeks before December 2014) where Plaintiff herself did not even reference incontinence as a basis for any limitation on her ability to work, even though she was specifically asked to list all of her physical conditions that limited her ability to work. (R.p. 222, 230-237).
Even assuming arguendo that the new evidence might have affected the ALJ's decision, Meyer instead requires that there be "'a reasonable possibility that the new evidence would have changed the outcome.' " Meyer, 662 F.3d at 705 (quoting Wilkins, 953 F.2d at 96)(emphasis added). "'Might' is far short of the 'reasonable possibility' standard this court must apply." Booker v. Colvin, No. 13-2033, 2014 WL 68168788, *6 (Dec. 4, 2014). Finally, with regard to whether Plaintiff even had good cause for failing to obtain and submit this additional opinion prior to the ALJ's decision, rather than arguing that she had good cause to submit the new evidence to the appeals council, Plaintiff simply argues that the Defendant has not shown that the new opinion was submitted for an improper reason and fails to even offer any "good cause."
Therefore, after a review of all the evidence, including the evidence submitted to the Appeals Council, Plaintiff has not shown a reasonable possibility that the new evidence would have changed the outcome sufficient to show error by the Appeals Council. Plaintiff's argument that the Appeals Council was required under Meyer to remand this case back to the ALJ based on this new evidence is without merit.
Conclusion
Substantial evidence is defined as "... evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984). As previously noted, if the record contains substantial evidence to support the decision (i.e., if there is sufficient evidence to justify a refusal to direct a verdict were the case before a jury), this Court is required to uphold the decision, even should the Court disagree with the decision. Blalock, 483 F.2d at 775.
Under this standard, the record contains substantial evidence to support the conclusion of the Commissioner that the Plaintiff was not disabled within the meaning of the Social Security Act during the relevant time period. Therefore, it is recommended that the decision of the Commissioner be affirmed.
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge April 8, 2019
Charleston, 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
Post Office Box 835
Charleston, South Carolina 29402
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).