Opinion
Civil Action 19-11479-IT
03-17-2021
SCOTT E. PELKEY, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION ON CROSS-MOTIONS REGARDING DENIAL OF SOCIAL SECURITY BENEFITS
Judith Gail Dein United States Magistrate Judge
I. INTRODUCTION
Plaintiff Scott E. Pelkey (“Pelkey”) has brought this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his claims for Social Security Disability Insurance (“SSDI) and Supplemental Security Income (“SSI”) benefits. The matter is presently before the court on the “Plaintiff's Motion for Remand to Consider New Evidence and/or for Order Reversing Decision of Commissioner” (Docket No. 36), and on the “Defendant's Motion for Order Affirming the Decision of the Commissioner” (Docket No. 41). By his motion, Pelkey is seeking an order remanding the matter to the Social Security Administration (“SSA”), pursuant to sentence six of § 405(g), for consideration of additional evidence consisting of (1) an employability assessment form that was completed by Pelkey's primary care physician (“PCP”), Martin Seltman, M.D., on March 20, 2019 (the “Seltman Report”), and (2) a Psychiatric/Psychological Impairment Questionnaire and accompanying mental status examination report that were completed by a psychiatrist, Vint Blackburn, M.D., on March 22, 2019 (the “Blackburn Report”). Alternatively, Pelkey is seeking a ruling vacating the Commissioner's decision on the grounds that the Administrative Law Judge (“ALJ”), in reaching her conclusion that Pelkey was not disabled, committed errors of law, ignored relevant medical and vocational evidence, and failed to base her findings on substantial evidence in the record. The Commissioner argues that Pelkey has failed to satisfy the requirements necessary to support a remand for consideration of the additional evidence or to establish any prejudicial errors in the ALJ's decision. Accordingly, by his motion, the Commissioner is seeking an order affirming his decision to deny Pelkey's claims for benefits.
This court finds that the matter should be remanded to the SSA for consideration of the Seltman and Blackburn Reports. Specifically, as detailed below, this court finds that Pelkey has met the standard for such a remand by showing that the Reports are new and material within the meaning of the Social Security Act, and there was good cause for his failure to submit them earlier. Therefore, and for all the reasons that follow, this court recommends to the District Judge to whom this case is assigned that the plaintiff's motion be ALLOWED, the Commissioner's motion be DENIED, and the matter be remanded to the SSA so the ALJ can consider the Seltman and Blackburn Reports as part of the administrative record. Given that it will be up to the ALJ, in the first instance, to evaluate the additional evidence and determine how it will impact her assessment of Pelkey's claim of disability, this court finds it unnecessary at this time to address the remaining issues raised by the parties' motions.
References to pages in the transcript of the record proceedings (Docket No. 17) shall be cited as “Tr. __.” The ALJ's Decision shall be cited as “Dec.” and can be found beginning at Tr. 130. This court's Statement of Facts is limited to those facts that are relevant to the matters addressed in this court's analysis. Further details can be found in the administrative record.
Overview of Pelkey's Mental Impairments
Pelkey was born on November 30, 1982 and was 34 years old at the time he applied for SSI and SSDI. (See Tr. 235, 242). He graduated from college with a degree in communications and worked for CVS Pharmacy for approximately nine years, starting as a cashier and eventually becoming a pharmacy technician. (Tr. 62, 298, 721). However, at the time of his hearing before the ALJ in September 2018, Pelkey was estranged from his family, had been homeless for 4 years, and had obtained numerous jobs that he failed to maintain for more than a few weeks or months. (See Tr. 60, 63-66, 68-72, 721). When asked at the hearing why he believed he was unable to hold a job, Pelkey discussed problems getting along with other people, the lack of a support system, pain from standing too long on his flat feet and feelings of inadequacy, neediness and being overwhelmed. (Tr. 75-77). He also mentioned repeated conflicts with co- workers, insecurity relating to his homelessness and lack of motivation as reasons why his various jobs had failed to work out. (Tr. 79-82).
Since 2014, Pelkey has been diagnosed with a number of mental health conditions, including major depressive disorder, bipolar mood disorder, anxiety disorder, gender identity disorder, post-traumatic stress disorder (“PTSD”), Asperger's syndrome, narcissistic personality disorder and paranoia. (Tr. 393, 452, 485, 545-46, 645). Despite repeated attempts to obtain psychiatric care, the record demonstrates that Pelkey has failed to engage in any consistent mental health treatment and is resistant to medication. (See, e.g., Tr. 73-75, 447, 583, 612, 615, 645-46, 650-52, 655-56, 671-72, 706, 719-20). At his hearing before the ALJ, Pelkey testified that he has not been able to find mental health providers who will give him concrete advice on how to improve his situation, and he explained that therapy makes him paranoid because he does not know what the treatment providers will do with the information he shares. (Tr. 74). He further stated that there were several past instances where treatment providers “used that information against [him]” and he has developed “an increasing mistrust of the people who work in the system[.]” (Tr. 74). Additionally, Pelkey testified that he is unable to tolerate group therapy and has not been able to find a treatment environment that works for him. (Tr. 75).
While Pelkey's medical records reflect some physical complaints and diagnoses, the issues raised in this case relate to the plaintiff's mental health impairments. Therefore, this court has focused on facts relating to Pelkey's mental health.
The record suggests that Pelkey's mental health-related symptoms have intensified since 2014. For example, but without limitation, the record shows that in May 2016, Pelkey sought treatment at the Mercy Behavioral Health center in Pittsburgh, Pennsylvania, where he had been treated in the past. (See Tr. 478-82). He presented with depression, anxiety, suicidal ideation and general feelings of hopelessness. (Tr. 478). He was referred to a partial hospitalization program but failed to follow through with recommendations for treatment. (Tr. 478-79). The record also shows that in January 2017, Pelkey sought treatment at another mental health facility in Pennsylvania, where he expressed difficulty handling his grief from the death of his mother three years earlier, described having no support system and complained of feeling alienated in his social environment. (Tr. 606-12). He was diagnosed with PTSD and “Clinical Disorders Related to Treatment, ” and was assessed as having a Global Assessment of Functioning (GAF) of 50, indicating “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Karen S. v. Saul, No. 2:19-cv-00522- JHR, 2020 WL 6047693, at *5 n.4 (D. Me. Oct. 12, 2020) (slip op.) (quoting American Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000)). (See also Tr. 612). Although individual therapy was recommended, Pelkey refused to sign a treatment plan and walked out of the facility without scheduling a psychiatric evaluation. (Tr. 612).
When Pelkey presented at Mercy Behavioral Health in May 2016, he was identifying as a woman and using the name Kelly. (Tr. 478). Records from that time period reflect that identity. (See id.).
The evidence indicates that Pelkey's symptoms persisted over the ensuing years. For example, but again without limitation, the plaintiff's medical records demonstrate that Pelkey had 3 psychiatric admissions between July 2017 and September 2017, during which time he presented with symptoms of severe depression, anxiety, irritability, hopelessness and suicidal ideation. (Tr. 107, 615-20, 645-46, 650-52, 671). They further show that he sought acute psychiatry services at Massachusetts General Hospital (“MGH”) on several occasions during the summer of 2018. (Tr. 706-08, 713-15, 719-21). Records from MGH describe Pelkey as presenting with recurrent major depressive disorder, “subacute symptoms of his underlying PTSD[, ]” and suicidal ideation. (Tr. 707, 717, 719). Although Pelkey was admitted to a week- long in-patient program in 2018, he reported that he “didn't mesh well” with the mental health providers, declined to try any medications and became discouraged with arrangements for follow up treatment. (Tr. 719). Accordingly, the record raises doubts about Pelkey's ability to follow through with any opportunities for the treatment of his mental impairments.
Procedural History
The plaintiff protectively filed applications for SSDI and SSI benefits on May 23, 2017, claiming that he had become disabled on December 31, 2015 as a result of depression, anxiety, flat feet, insomnia and hyperactivity. (Dec. 1, Tr. 130; Tr. 97-98, 125-26). His applications were denied on November 3, 2017, and he requested a hearing before an ALJ. (Tr. 125-26, 159-60). The request was granted and a hearing took place by videoconference on September 7, 2018, with the ALJ appearing from Elkins Park, Pennsylvania, and Pelkey participating from the SSA's hearing office in Boston, Massachusetts. (Tr. 50-52, 161-63). The plaintiff, who declined the opportunity to postpone the hearing so he could obtain counsel or a non-lawyer representative, testified at the hearing. (Tr. 52-85). The ALJ also elicited testimony from a vocational expert, who described Pelkey's vocational background based on his past work as a pharmacy technician and responded to hypothetical questions designed to determine whether jobs exist in the national economy for an individual with the same age, educational background, work experience and residual functional capacity (“RFC”) as the plaintiff. (Tr. 85-91).
The ALJ's Decision
On September 25, 2018, the ALJ issued a written decision denying the plaintiff's claims for benefits on the grounds that Pelkey had “not been under a disability, as defined in the Social Security Act, from December 31, 2015, through the date of [her] decision[.]” (Dec. Finding #12, Tr. 144). It is undisputed that the ALJ, in reaching her conclusion that Pelkey was not disabled, applied the five-step sequential evaluation required by 20 C.F.R. §§ 404.1520 and 416.920. See Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (“the Commissioner employs a five step process to determine if an individual is disabled within the meaning of the Social Security Act.”). Thus, the ALJ first considered whether Pelkey had engaged in substantial gainful activity (“SGA”) at any time after December 31, 2015, the alleged onset date of his disability. (See Dec. 2-4, Tr. 131-33). The ALJ determined that Pelkey engaged in SGA from February 2016 through June 2016, when he worked 32 hours per week at CVS Pharmacy, so she confined the remainder of her disability analysis to the time period following June 2016. (See Dec. Finding #2-3, Tr. 132-33). The ALJ went on to conclude, at step two of her evaluation, that during the relevant time period Pelkey suffered from the severe impairments of major depressive disorder; PTSD; bipolar disorder, not otherwise specified; cannabis use disorder; narcissistic personality disorder; and paranoid personality disorder. (Dec. Finding #4, Tr. 133). She then found, at step three, that the plaintiff he did not have an impairment or combination of impairments that met or medically equaled an impairment listed in Appendix 1 of Part 404, Subpart P of the Social Security regulations. (Dec. Finding #5, Tr. 134).
The Social Security Act defines “disability” 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. § 423(d)(1)(A).
In carrying out the five-step evaluation process, the ALJ must determine (1) whether the claimant is engaged in substantial gainful work activity; (2) whether the claimant suffers from a “severe” impairment or combination of impairments; (3) whether the claimant's severe impairment meets or medically equals any of the listed impairments contained in Appendix 1 of the Social Security regulations; (4) whether the claimant's RFC is such that he can perform his past relevant work; and (5) whether the claimant, given his RFC, education, work experience and age, is prevented from doing any other work. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v). See also Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (describing five-step evaluation process).
In reaching her conclusion at step three of the sequential evaluation process, the ALJ specifically addressed whether Pelkey's mental impairments, considered singly or in combination, met or medically equaled the criteria of Listing 12.04 for depressive, bipolar and related disorders, or Listing 12.08 for personality and impulse-control disorders. (See Dec. 5, Tr.134). The ALJ determined that the plaintiff's mental impairments did not meet or medically equal either of those Listings. (Dec. 5, Tr. 134). In support of this finding, the ALJ considered whether the so-called “paragraph B” criteria of Listings 12.04 and 12.08 were satisfied. (Dec. 5- 7, Tr. 134-36). See 20 C.F.R., Pt. 404, Subpt. P, Appendix 1 §§ 12.04, 12.08. The ALJ recognized that in order to meet the paragraph B criteria for either Listing,
the mental impairments must result in at least one extreme or two marked limitations in a broad area of functioning which are: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves. A marked limitation means functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited. An extreme limitation is the inability to function independently, appropriately or effectively, and on a sustained basis.
(Dec. 5-6, Tr. 134-35). She then determined that Pelkey's mental impairments did not satisfy the applicable criteria because he had no extreme limitations and had marked limitation in only one area of functioning. (Dec. 6, Tr. 135). Specifically, the ALJ found that Pelkey had marked limitation in his ability to interact with others, but only moderate limitation in the area of concentration, persistence or pace, and only mild limitation in his ability to adapt or manage himself and to understand, remember or apply information. (Dec. 6, Tr. 135). As described below, this court finds that the Seltman and Blackburn Reports might reasonably have changed the outcome of this assessment if they had been available to the ALJ prior to her decision.
The ALJ also considered whether the plaintiff's mental impairments satisfied the so- called “paragraph C” criteria of Listing 12.04. (Dec. 7, Tr. 136). See 20 C.F.R., Pt. 404, Subpt. P, Appendix 1 § 12.04. Because the ALJ found that Pelkey had not participated in consistent mental health treatment, and had shown, based on his hearing testimony, that he had “the ability to adapt to changes in health, location, and residential status during his alleged disability period[, ]” she concluded that the evidence failed to satisfy the paragraph C criteria of the Listing. (Dec. 7, Tr. 136). Therefore, she did not find that Pelkey was suffering from a presumptively disabling impairment and her analysis continued to step four in the five-step evaluation process.
The fourth inquiry asks whether “the applicant's ‘residual functional capacity' is such that he or she can still perform past relevant work[.]” Seavey, 276 F.3d at 5. In order to answer this question, the ALJ must first determine the claimant's RFC. In the instant case, the ALJ found that Pelkey retained the RFC
to perform a full range of work at all exertional levels but with the following non- exertional limitations: he can perform routine and repetitive tasks, with no rapid production-rate work; can tolerate no exposure to the general public; can work in proximity to others but with no more than brief, incidental interactions with co-workers on up to an occasional basis throughout the day; can have no tandem or team work with co-workers on the same task; and limited to occupations with few and infrequent changes in the work setting or the tasks performed.
(Dec. Finding #6, Tr. 136). She then determined that Pelkey was no longer able to perform his past work as a pharmacy technician before concluding, at the fifth and final step in the sequential analysis, that the plaintiff was capable of performing jobs that existed in significant numbers in the national economy. (Dec. Finding #7, 11, Tr. 142-43). Accordingly, she found that Pelkey was not disabled during the time period from December 31, 2015 through the date of her written decision on September 25, 2018. (Dec. Finding #12, Tr. 144).
It is undisputed that the ALJ was not able to consider the Seltman Report or the Blackburn Report in connection with her analysis because those records were not available at the time of the administrative proceedings. (See Tr. 18-25). The plaintiff argues that a remand is necessary so his claim of disability can be properly assessed in light of that new evidence. (See Pl. Mem. (Docket No. 37) at 1-2). Alternatively, he contends that the Commissioner's decision to deny him benefits should be vacated because the ALJ committed reversible error in connection with her finding that Pelkey was not disabled, as defined in the Social Security Act, from December 31, 2015 though the date of her decision. (See id. at 2, 14-20). This court finds that Pelkey is entitled to have the Seltman and Blackburn Reports reviewed in connection with his SSI and SSDI claims, and that the matter should be remanded so the ALJ can have an opportunity to revisit her decision in light of all the relevant medical evidence.
The plaintiff argues that the relevant time period for purposes of his motion to remand extends to June 30, 2021, the date when he was last insured with respect to his claim for SSDI. (Pl. Reply Mem. (Docket No. 43) at 3-4). This is not an accurate description of the relevant time period. “An implicit materiality requirement is 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 previous non-disabling condition.” Beliveau ex rel. Beliveau v. Apfel, 154 F.Supp.2d 89, 95 (D. Mass. 2001) (alteration omitted) (quoting Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3rd Cir. 1984)). As described in the ALJ's decision, the time period at issue includes the period from December 31, 2015 through September 25, 2018. (See Dec. 15, Tr. 144).
Pelkey's Appeal of the ALJ's Decision
Following receipt of the ALJ's unfavorable decision, Pelkey filed a request for review by the Social Security Appeals Council. (Tr. 46-47). On January 25, 2019, the Appeals Council denied the request, thereby making the ALJ's decision the final decision of the Commissioner for purposes of review. (Tr. 30-32). Accordingly, Pelkey has exhausted all his administrative remedies and the case is ripe for judicial review pursuant to 42 U.S.C. § 405(g). (See Tr. 30-32).
The Newly Proffered Evidence
On March 28, 2019, after the administrative proceedings were completed, Pelkey submitted a copy of the Seltman and Blackburn Reports to the Social Security Appeals Council, along with a cover letter describing the enclosed documents. (Tr. 13-28). In his cover letter, Pelkey explained that soon after the Appeals Council issued its decision on his administrative appeal, the plaintiff moved from Boston to Pennsylvania where he expected to stay with a friend. (See Tr. 13). The arrangement quickly fell apart and Pelkey was briefly forced to sleep outside before seeking help at a mental health clinic where he was diagnosed with similar mental impairments as he had been diagnosed with in the past. (Tr. 13). According to the plaintiff, the clinic sent him to a homeless shelter in Philadelphia, which Pelkey described as “horrid.” (Tr. 13). Homeless services was then able to bus him to Pittsburgh where he had lived previously. (Tr. 13). After arriving in Pittsburgh, Pelkey applied for benefits, including General Assistance benefits from the Department of Public Welfare (“DPW”), based on his alleged status as a disabled individual. (See Tr. 13, 18). He also went to the Resolve Crisis Center for a psychiatric evaluation. (Tr. 13).
At some point while he was going through these struggles, Pelkey reached out to his PCP, Dr. Seltman, to ask for help. (Tr. 13). It is unclear whether Pelkey met with Dr. Seltman in early 2019. In any event, on March 20, 2019, Dr. Seltman completed the Seltman Report, an employability assessment form used by the DPW in evaluating applications for General Assistance. (Tr. 18). The plaintiff contends that this document constitutes new, material evidence that should be considered by the ALJ upon remand to the SSA. (See Pl. Mem. at 10-12).
The Seltman Report consists of two sections, including and “Employability” section and a section entitled “Examination Results.” (Tr. 18, 28). In the Examination Results section, Dr. Seltman wrote that Pelkey was suffering from a primary diagnosis of “Major Depression - longstanding” and secondary diagnoses of paranoid personality disorder, long-term homelessness and a complicated grief reaction. (Tr. 18). He also indicated that his assessment of the plaintiff's employability was based on a physical examination, review of relevant medical records and the plaintiff's clinical history. (Tr. 18). In the Employability section of the form, Dr. Seltman opined that Pelkey was “temporarily disabled” as a result of his conditions, and that the plaintiff's disability would preclude him from any gainful employment for a period of 12 months or more. (Tr. 18). Specifically, Dr. Seltman wrote that Pelkey's disability began on March 20, 2019 and would be expected to last until March 20, 2021. (Tr. 18). By signing the form, Dr. Seltman certified as follows:
As a licensed medical provider, I certify that I have read and complied with the attached instructions and the above information is true and correct to the best of my professional knowledge. I further certify that my diagnosis and assessment are based solely on the patient's condition as determined by my examination. I understand and agree that my diagnosis and supporting documentation may be subject to review by the [DPW].
(Tr. 18).
The record indicates that at the time he completed his Report, Dr. Seltman had been serving as Pelkey's PCP for at least five years. (See, e.g., Tr. 548-52, 591-94). Therefore, he would have had personal knowledge regarding the chronic nature of Pelkey's depression and other mental health impairments. Although Dr. Seltman opined that Pelkey's period of disability began on March 20, 2019, it is apparent from Dr. Seltman's description of Pelkey's depression as “longstanding” that this date reflected the date of the Report rather than the onset date of Pelkey's disabling condition.
The other material for which Pelkey seeks review upon remand consists of the Blackburn Report, a Psychiatric/Psychological Impairment Questionnaire and accompanying mental status examination report, which were completed by Dr. Blackburn on March 22, 2019, when Pelkey presented at the Resolve Crisis Center. (See Pl. Mem. at 10-12; Tr. 19-25). As described in the Questionnaire, Dr. Blackburn had treated the plaintiff on one prior occasion in April 2018, when Pelkey visited the Crisis Center. (Tr. 19). Dr. Blackburn also reported that he had reviewed Pelkey's medical records and “was able to complete a thorough assessment” during Pelkey's visit on March 22, 2019. (Tr. 24). At that time, Dr. Blackburn diagnosed the plaintiff with autism spectrum disorder, major depressive disorder, PTSD and borderline personality disorder. (Tr. 19). He also noted that the plaintiff was estranged from his family, had been homeless for more than 4 years, and had experienced “10+ inpatient hospitalizations[.]” (Tr. 19). When asked to identify the signs and symptoms supporting his assessment of Pelkey's impairments, Dr. Blackburn checked off a number of symptoms, including depressed mood; anxiety; constricted, irritable and inappropriate affect; autistic thinking; paranoia/suspiciousness; suicidal ideation; anhedonia/pervasive loss of interests; deeply ingrained, maladaptive patterns of behavior; and intense and unstable interpersonal relationships among others. (Tr. 20). He described the most frequent and/or severe of Pelkey's symptoms as “pervasive affect intolerance, disregulated [sic] mood, extreme difficulty with interpersonal relationships, [and] extreme fight/flight [response] to stressful situations.” (Tr. 21). Furthermore, Dr. Blackburn noted that Pelkey experiences chronic pain that is exacerbated by some of his psychiatric conditions, as well as episodes of decompensation or deterioration at work or in work-like settings. (Tr. 21).
Significantly, a portion of the Questionnaire asked Dr. Blackburn to estimate Pelkey's ability to perform various “mental activities in a competitive environment on a sustained and ongoing basis (8 hours per day, 5 days per week)” by checking off the plaintiff's degree of limitation as “Marked, ” “Moderate-to-marked, ” “Moderate, ” “None-to-mild” or “Unknown.” (Tr. 22 (italics omitted)). The mental activities were listed under the same four broad areas of functioning that the ALJ had used when considering whether Pelkey's mental impairments satisfied the paragraph B criteria of Listings 12.04 and 12.08 in the Social Security regulations. (See Tr. 22, 135). Dr. Blackburn opined that Pelkey had no more than “None-to-mild” limitation in the area of understanding and memory, and no more than “Moderate-to-marked” limitation in the area of adaptation. (Tr. 22). However, he determined that Pelkey had “Marked limitation” in the area of concentration and persistence, and “Marked limitation” in the area of social interactions. (Tr. 22).
Dr. Blackburn was also asked to estimate how often the patient was likely to be absent from work as a result of his impairments. Instead of checking off one of the available responses, Dr. Blackburn wrote, “[n]ot applicable as primary problem is maintaining work[.]” (Tr. 24). He further wrote that in his opinion, Pelkey's symptoms and limitations had been applicable for “[s]everal years” based on his review of the medical records and his prior treatment of the plaintiff on April 2, 2018. (Tr. 24). The plaintiff argues that this evidence and the evidence from Dr. Seltman, if credited and combined with the other findings in the ALJ's decision, would establish that he was disabled during the relevant time period and should therefore be considered by the ALJ upon remand. (See Pl. Mem. at 10-11).
Additional factual details relevant to this court's analysis are described below where appropriate.
III. ANALYSIS
A. Standard of Review
The threshold issue raised by Pelkey's motion is whether the plaintiff is entitled to a remand for consideration of additional evidence pursuant to sentence six of § 405(g) of the Social Security Act. Sentence six provides in pertinent part that the 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). Thus, the burden is on the plaintiff to demonstrate that the evidence at issue “is both ‘new' and ‘material,' as those terms are used in the statute[, ]” and that there was “good cause” for his “failure seasonably to have offered the evidence.” Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 139 (1st Cir. 1987). This court finds that Pelkey has satisfied this standard with respect to the Seltman and Blackburn Reports.
B. Newness/Materiality
“In order for the evidence submitted by Plaintiff to be deemed ‘new' within the meaning of the [Social Security] Act, the evidence must not have been contained within the administrative record at the time the ALJ rendered [her] decision.” Martins v. Colvin, No. 13- 12030-JGD, 2014 WL 4437779, at *8 (D. Mass. Sept. 8, 2014) (first alteration in original) (quoting Gullon v. Astrue, No. 11-099ML, 2011 WL 6748498, at *9 (D.R.I. Nov. 30, 2011) (slip op.)). “[E]vidence is material if the ALJ's decision ‘might reasonably have been different' were it considered.” Rawls v. Apfel, 998 F.Supp. 70, 76 (D. Mass. 1998) (quoting Evangelista, 826 F.2d at 140) (additional citations omitted). Moreover, in order to show that evidence is both “new” and “material, ” the plaintiff must establish that it “is necessary to develop the facts of the case fully, that such evidence is not cumulative, and that consideration of it is essential to a fair hearing.” Evangelista, 826 F.2d at 139. “The mere existence of evidence in addition to that submitted before the hearing examiner will not constitute sufficient cause for remand. Rather, to qualify under the new/material standard, the [proffered evidence] must be meaningful- neither pleonastic nor irrelevant to the basis for the earlier decision.” Id. at 139-40 (internal citation omitted).
The Seltman and Blackburn Reports satisfy these requirements. As an initial matter, it is undisputed that both reports were created nearly six months after the ALJ issued her decision and approximately two months after the Appeals Council denied Pelkey's request for review. Consequently, they were not available to the ALJ for consideration. Moreover, the Reports present facts and information that is not simply redundant of information contained in the administrative record. Rather, they include new information that bears on the severity and persistence of Pelkey's mental illness, “as it existed at the time of the hearing, and its anticipated course.” Mahamed v. Colvin, No. 14-13258-LTS, 2015 WL 7009070, at *6 (D. Mass. Nov. 12, 2015). See also Rawls, 998 F.Supp. at 76-77 (finding that evidence containing both “somewhat cumulative” as well as “non-cumulative” information of a continuing psychiatric condition could serve as the basis for a remand). Such evidence is both relevant and probative of the issue whether the plaintiff was disabled during the relevant time period.
Dr. Blackburn's Report contains new information regarding the nature and the severity of Pelkey's impairments as they existed at the time of his alleged disability. As described above, Dr. Blackburn diagnosed Pelkey with a number of mental health conditions, including major depressive disorder, PTSD, borderline personality disorder and autism spectrum disorder. (Tr. 19). While the other diagnoses are cumulative of information contained in the administrative record, the diagnosis of an autism spectrum disorder and associated “[a]utistic thinking” is new. (See Tr. 20; Dec. 4, Tr. 133 (describing ALJ's finding that medical records in the administrative record lacked evidence to support alleged “diagnosis of Asperger's syndrome or other autism spectrum disorder[.]”)). Although this fact “alone may not be material, new evidence that includes [a] new diagnos[is] can support a finding that the evidence is material. An ALJ could therefore reasonably find that the new diagnos[is] supported a different decision.” Mahamed, 2015 WL 7009070, at *7 (internal citation omitted).
With respect to the severity of Pelkey's impairments, Dr. Blackburn opined that the plaintiff's symptoms resulted in “Marked” limitations in two broad areas of mental functioning going back “[s]everal years[, ]” and that Pelkey's “primary problem is maintaining work[.]” (Tr. 22-24). These opinions are both new and material because no other mental health professional who rendered an opinion regarding Pelkey's mental RFC or ability to carry out work-related activities during the relevant time period had an opportunity to meet with Pelkey more than once or opined that the plaintiff's mental impairments would result in marked limitations in more than one area of mental functioning. (See Dec. 12-13, Tr. 141-42 (describing opinions from State agency psychologist and consulting examiner regarding plaintiff's mental RFC)). Moreover, if credited, Dr. Blackburn's opinion would establish that Pelkey's mental impairments at the time of the hearing satisfied the paragraph B criteria of Listings 12.04 and 12.08, thereby rendering the plaintiff presumptively disabled at step three of the five-step disability analysis. (See Dec. 5-6, Tr. 134-35 (explaining that “two marked limitations in a broad area of [mental] functioning” will satisfy the paragraph B criteria of Listings 12.04 and 12.08)).
Dr. Blackburn's Report also sheds light on the severity of Pelkey's mental impairments over time. Dr. Blackburn reported that during the mental status examination, Pelkey was “far less irritable” “and more cooperative” than he had been when Dr. Blackburn first saw him in April 2018. (Tr. 25). In other words, Dr. Blackburn indicated that Pelkey's symptoms had been more severe during the alleged period of disability than they were when Dr. Blackburn saw the patient again in March 2019. Therefore, this court finds that consideration of the Blackburn Report is both “necessary for a fuller development of the facts of the case, ” and “essential to afford [Pelkey] a fair hearing.” See Evangelista, 826 F.2d at 140.
Dr. Seltman's Report, albeit far more limited than the evidence from Dr. Blackburn, also meets the newness and materiality requirements necessary to support a remand for consideration of additional evidence. Dr. Seltman's opinion that Pelkey's longstanding major depression and other mental impairments rendered him temporarily disabled for a period of two years provides the only assessment by a long-term treating physician of Pelkey's capacity for maintaining gainful employment. The record shows that Dr. Seltman served as the plaintiff's PCP going back to at least 2014. (See Tr. 572-94). Therefore, his opinion sheds new light on the persistence and severity of Pelkey's symptoms.
The fact that Dr. Seltman opined that Pelkey's disability began on March 20, 2019 does not render the evidence immaterial. As discussed supra, it is clear from the Report that this date reflected the date Dr. Seltman filled out the document, and was not intended to constitute the onset date of Pelkey's disability. (See Tr. 18). Moreover, under the Social Security regulations, “chronic mental illness must be viewed longitudinally” for purposes of determining disability. Rawls, 998 F.Supp. at 77. Accordingly, “[n]ew evidence of a continuing psychiatric condition, in particular, is material if it suggests that the condition may be severe and chronic.” Id. Dr. Seltman's assessment that Pelkey was suffering from “longstanding” major depression, along with a paranoid personality disorder, complicated grief reaction and long-term homelessness that rendered him disabled “is clearly material to whether the mental illness was disabling” during the time period relevant to the ALJ's decision. See id.
The Commissioner insists that the Seltman and Blackburn Reports cannot satisfy the newness requirement because “they offer no new facts about Plaintiff's conditions during the relevant period.” (Def. Mem. (Docket No. 42) at 10). Specifically, the Commissioner argues that Dr. Seltman “only addressed disability beginning in March 2019” and “Dr. Blackburn did not include any additional treatment records, aside from a mental status examination conducted that day.” (Id. at 11). He also contends that the physicians merely rendered opinions based on evidence that already existed in the administrative record, and did not present any new hospitalization records or progress notes. (See id.). Citing the First Circuit decision in Evangelista, the Commissioner argues that “[t]hese types of opinions are not new evidence related to Plaintiff's functioning during the relevant time period at issue.” (Id.).
The Commissioner's arguments are not persuasive. As an initial matter, the fact that Dr. Seltman wrote that Pelkey's period of temporary disability began on March 20, 2019 is insufficient to defeat the plaintiff's motion to remand for the reasons explained above. With respect to Dr. Blackburn, the Commissioner has failed to explain why his Report should not be deemed “new.” Dr. Blackmun examined the plaintiff, reported on the results of his examination, assessed the nature and extent of Pelkey's functional limitations based on his treatment of the plaintiff on two separate occasions and his review of the plaintiff's medical records, and completed a questionnaire in which he included handwritten details regarding his impressions. (See Tr. 19-25). These materials are neither derivative nor cumulative of information contained in the administrative record. Therefore, the Commissioner's argument lacks merit.
Finally, this court finds that the defendant's reliance on Evangelista is misplaced. In that case, the First Circuit considered whether the plaintiff was entitled to a remand for consideration of new evidence consisting of an expert opinion from a physician, Dr. Earl F. Hoerner, who opined that the plaintiff had been permanently disabled and unable to work for approximately seven years. See Evangelista, 826 F.2d at 139. In connection with its determination that the plaintiff failed to satisfy the requirements for a remand, the Court found it significant that Dr. Hoerner “first appeared on the scene . . . subsequent not only to the [Commissioner's] final decision, but some nine months after suit had been instituted in the district court.” Id. Thus, the First Circuit determined that the circumstances surrounding the proffered evidence created an “inescapable” inference that plaintiff's counsel had retained Dr. Hoerner for the purpose of evaluating the case. Id. The Court further determined that Dr. Hoerner's opinions were neither new nor material. As the First Circuit reasoned in relevant part:
The medical record compiled before the ALJ was voluminous, detailed, and complex. It spanned many years, and dealt with an array of ailments. Given the prolixity of the evidence actually considered, it can scarcely be suggested that the taking of additional evidence is necessary for a fuller development of the facts of the case, or that the presentation of yet another medical report is somehow essential to afford the claimant a fair hearing. Although Dr. Hoerner arranges the factual particles contained in the record in a somewhat different pattern, his affidavit and report offers no new facts of any relevance. In short, the evidence is derivative rather than direct. It results from a retained physician's evaluation of the identical medical reports which composed the administrative docket. That Dr. Hoerner happened to view this collection of data differently, that he happened to disagree with the conclusion reached by the ALJ, does not render the evidence which forms the basis for his opinion any less cumulative of what already appears in-indeed, comprises the totality of-the record. If a losing party could vault the “newness” hurdle of § 405(g) merely by retaining an expert to reappraise the evidence and come up with a conclusion different from that reached by the hearing officer, then the criterion would be robbed of all meaning.Id. at 140 (emphasis in original; internal citation and footnote omitted). With respect to materiality, the Court found that the “prodigious quantities of medical evidence bearing directly on the functional limitations posed by [the plaintiff's] health impairments[, ]” combined with the “wholly derivative nature of the late-proffered report, ” made it impossible to conclude that Dr. Hoerner's opinion was material such that it might reasonably have changed the ALJ's decision. Id. at 140-41.
The circumstances presented in this case are readily distinguishable from the facts in Evangelista. Unlike the physician in that case, both Dr. Seltman and Dr. Blackburn treated the plaintiff during the period relevant to his disability claims. Dr. Seltman served as Pelkey's PCP during the period of his alleged disability, and Dr. Blackmun provided treatment to Pelkey on one occasion during the period at issue. (See Tr. 19, 544-55). Additionally, neither doctor was hired to assist in the litigation, which had not been filed at the time they assessed the plaintiff in March 2019. (See Compl. (Docket No. 1) (filed July 5, 2019)). Rather, as described above, Pelkey reached out to Drs. Seltman and Blackburn in the wake of a crisis following his return to Pennsylvania in early 2019. (Tr. 13-14). Although the plaintiff was seeking disability benefits from the DPW at that time, “[t]here is nothing to suggest that [Pelkey's] untimely submission [to the SSA] ‘reflect[ed] any bad faith attempt to manipulate the administrative process' or was otherwise improper.” Martins, 2014 WL 4437779, at *9 (quoting Milano v. Bowen, 809 F.2d 763, 767 (11th Cir. 1987)).
The materials at issue in this case are also distinguishable from Dr. Hoerner's opinion in Evangelista because they are not “wholly derivative” of information contained in the administrative record. Unlike Dr. Hoerner, both Dr. Seltman and Dr. Blackburn had personal experience with the plaintiff and were familiar with his mental health conditions during the time period at issue. Additionally, the record in this case contains no assessments by any treating sources regarding the extent of Pelkey's functional limitations. Nor does it contain “prodigious quantities of medical evidence” relating to that issue. Evangelista, 826 F.2d at 140. Furthermore, in contrast to Dr. Hoerner, Dr. Seltman's and Dr. Blackburn's opinions pertain to the nature and severity of the plaintiff's mental limitations rather than his physical limitations. See id. at 140-41 (finding Dr. Hoerner's opinion immaterial in light of evidence in the administrative record relating to functional limitations caused by plaintiff's physical impairments). As emphasized supra, in the disability context, “chronic mental illness must be viewed longitudinally.” Rawls, 998 F.Supp. at 77. Therefore, new evidence “provid[ing] support for the chronic nature of [the plaintiff's] mental impairment as it existed at the time of his hearing[, ]” such as the Seltman and Blackburn Reports, is important to an assessment of a claim for disability. Id.
The Commissioner next attempts to show that the Seltman and Blackburn Reports cannot satisfy the materiality requirement because they would not have changed the outcome of the ALJ's decision. (Def. Mem. at 11). These arguments too are unconvincing. With respect to Dr. Seltman, the Commissioner argues that his opinion is not material because it addresses the ultimate issue of disability, which is an issue reserved for the Commissioner. (Id.). While “the ultimate question of disability is for [the Commissioner], not for the doctors or for the courts[, ]” this does not mean that a physician's opinion on that issue is irrelevant or immaterial. See Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In determining whether a claimant is disabled, the adjudicator “will consider” medical opinions provided by the claimant's medical sources and “articulate in [the] determination or decision how persuasive [she] find[s] all of the medical opinions” in the claimant's case record based on a list of factors such as, but not limited to, the consistency of the opinion with other evidence in the record and the scope and nature of the medical source's treatment relationship with the claimant. 20 C.F.R. §§ 404.1520c, 416.920c. While it will be up to the ALJ to determine how much weight Dr. Seltman's opinion deserves under the regulations, the Commissioner's argument does not preclude the court from remanding the matter for consideration of the Report along with the other evidence of record.
The Commissioner also argues that Dr. Seltman's opinion is not material because his “statement that Plaintiff would be temporarily disabled from March 2019 to March 2021, is dated after the relevant period.” (Def. Mem. at 11). For the reasons articulated previously, this argument is unpersuasive.
The Commissioner's challenge to the Blackburn Report is similarly focused on the weight of the evidence rather than on whether it should be considered in the first place. The Commissioner argues that Dr. Blackburn's opinions regarding the severity of the plaintiff's mental limitations are “conclusory and unsupported by any significant explanation or reference to treatment notes” because one of the pages he filled out regarding the plaintiff's mental limitations was in the form of a “checkbox” questionnaire. (Def. Mem. at 12). Next, the defendant suggests that Dr. Blackburn's opinions regarding Pelkey's functional limitations should not be credited due to alleged inconsistencies between the opinions and Dr. Blackburn's report of Pelkey's mental status exam. (Id.). Finally, he argues that Dr. Blackburn's assessment should be disregarded because it is inconsistent with some of the evidence contained in the administrative record, including the opinions of a consulting examiner, the opinion of a State agency psychologist, and some of Pelkey's testimony regarding his daily activities. (Id. at 13). These arguments, which take aim at the persuasiveness of the evidence in light of the record as a whole, and raise issues within the scope of the ALJ's responsibility to resolve, are not directed to the issue before the court. That issue is whether the evidence is “meaningful” such that “the [ALJ's] decision ‘might reasonably have been different'” if it had been considered by the ALJ. Evangelista, 826 F.2d at 139-40 (quoting Falu v. Sec'y of Health & Human Servs., 703 F.2d 24, 27 (1st Cir. 1983)). Because this court finds that the Blackburn Report, if credited, might reasonably have changed the outcome of Pelkey's claims for SSDI and SSI, it satisfies the test for materiality under § 405(g) of the Social Security Act.
C. Good Cause
To justify a sentence six remand for consideration of additional evidence, the “Plaintiff must prove that the evidence is not only new and material, but [also] that he has good cause for his failure to present such evidence to the ALJ.” Rawls, 998 F.Supp. at 75. “[C]ourts have reasonably determined that a claimant has good cause when the evidence did not exist at the time of the initial hearing.” Id. at 76 (citing cases). Here, there is no question that the Seltman and Blackburn Reports “did not exist and could not have been presented to the ALJ at the [September 7, 2018] hearing” because neither Report was created until March 2019. See Id. Therefore, Pelkey had good cause for not submitting them sooner.
Nevertheless, the Commissioner asserts that Pelkey had no good cause for the late submission because the evidence consists of medical opinions rather than hospitalization records and progress notes. (Def. Mem. at 13-14). He further reasons that due to the physician-patient relationship Pelkey had with Drs. Seltman and Blackburn, the plaintiff could have obtained and submitted the opinions while the administrative proceedings were ongoing instead of waiting “until nearly six months after the ALJ's decision” to do so. (Id. at 14). Again, the Commissioner's arguments are insufficient to defeat the plaintiff's right to a remand.
The Commissioner has cited no authority for his assertion that Pelkey lacks good cause because the newly acquired evidence consists of opinions from two of his treating physicians. Furthermore, as described above, the circumstances of this case are not comparable to those presented in Evangelista. Here, there is nothing to suggest that Drs. Seltman and Blackburn were asked to provide opinions in connection with the litigation. Nor do the circumstances of this case support an inference that Pelkey was engaged in a last minute effort to salvage his social security claims. Rather, the evidence indicates that he reached out to his PCP and the Resolve Crisis Center in the context of his ongoing mental health struggles and related personal problems, following another crisis in what appears to have been a series of periodic mental health crises. Therefore, this court finds that Pelkey has satisfied the requirements necessary to support a remand for consideration of the additional evidence.
As the Commissioner points out in his memorandum, the First Circuit has recognized that “Congress plainly intended that remands for good cause should be few and far between, that a yo-yo effect be avoided-to the end that the process not bog down and unduly impede the timely resolution of social security appeals.” Evangelista, 826 F.2d at 141. While acknowledging the First Circuit's concern, this court finds that nothing in this statement defeats the plaintiff's showing of good cause in this case.
For the reasons discussed previously, the fact that Pelkey was seeking General Assistance benefits from the DPW at the time he reached out to Dr. Seltman and the Resolve Crisis Center does not support an inference that he was seeking to manipulate the administrative process or otherwise game the social security system.
D. Pelkey's Challenge to the ALJ's Decision
Pelkey has also moved, in the alternative, to vacate the ALJ's decision pursuant to sentence four of 42 U.S.C. § 405(g), which gives the court the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” As grounds for relief, Pelkey argues that the ALJ's decision was not supported by substantial evidence, was based on errors of law, and ignored relevant medical and vocational evidence. (Pl. Mem. at 14-20). However, as the plaintiff recognizes, when a district court remands a matter for consideration of new evidence pursuant to the sixth sentence of § 405(g), the court
does not affirm, modify, or reverse the [Commissioner's] decision; it does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding. The statute provides that following a sentence six remand, the [Commissioner] must return to the district court to “file with the court any such additional or modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based.”Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991) (internal citation omitted) (quoting 42 U.S.C. § 405(g)). Because the Commissioner's decision is subject to modification upon remand, this court finds that it is not necessary to address Pelkey's challenge to the substance of the ALJ's decision at this stage in the litigation.
IV. CONCLUSION
For all the reasons described above, this Court recommends to the District Judge to whom this case is assigned that the “Plaintiff's Motion for Remand to Consider New Evidence and/or for Order Reversing Decision of Commissioner” (Docket No. 36) be ALLOWED, the “Defendant's Motion for Order Affirming the Decision of the Commissioner” (Docket No. 41) be DENIED, and the matter be remanded for consideration of the Seltman and Blackburn Reports.
The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 14 days after being served with this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which the objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-05 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir. 1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).