United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge.
Standing Order, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of findings
and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley
submitted to the court his Proposed Findings and
Recommendation (“PF&R”) on February 28, 2017,
in which he recommended that the court grant the
plaintiff's brief to the extent that she seeks remand
pursuant to sentence four of 42 U.S.C. § 405(g); deny
defendant's brief in support of the Commissioner's
decision; reverse the final decision of the Commissioner,
remand the case to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings as
outlined in the PF&R; and dismiss this matter from the
accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days and three mailing days
in which to file any objections to Magistrate Judge
Tinsley's Proposed Findings and Recommendation. The
failure of any party to file such objections within the time
allowed constitutes a waiver of such party's right to a
de novo review by this court. Snyder v.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).
government timely filed objections and Caves responded to
those objections. (ECF Nos. 18 and 19). With respect to those
objections, the court has conducted a de novo review.
a hearing on May 13, 2014, Administrative Law Judge Jeffrey
J. Schueler issued an unfavorable notice of decision on May
30, 2014. Administrative Records (“AR”) at 9-30.
Caves asked the Appeals Council to review that decision and
submitted additional evidence which the Appeals Council
received and made part of the record. AR at 1-4. On November
10, 2015, the Appeals Council denied the request for review.
See id. It noted that it considered the additional
evidence and found that this information did not provide a
basis for changing the Administrative Law Judge's
decision. See id. The additional evidence included:
• Exhibit 53F. Medical evidence from Foot & Ankle
Clinic dated March 13, 2014.
• Exhibit 54F. Medical evidence from Bluefield Clinic
Company dated June 2, 2014 through July 18, 2014.
• Exhibit 55F. Medical evidence from Bluefield Regional
Medical Center dated August 13, 2014.
AR at 1349-1372. The Appeals Council did not indicate the
reasons for its decision nor was it required to do so.
evidence submitted to the Appeals Council included treatment
notes from Dr. Gary McCarthy dated June 2, 2014, June 25,
2014, July 3, 2014, July 14, 2014, and July 18, 2014. The
notes indicate that plaintiff was being seen by Dr. McCarthy
for left ankle and foot pain. Those records further indicate
that plaintiff underwent surgery on her left lower extremity
on July 3, 2014.
Judge Tinsley concluded that the evidence submitted to the
Appeals Council was new and material and that, because that
evidence addressed Caves' “continued complaints and
treatment for [her] lower extremit[ies, ” there was a
reasonable possibility that this new evidence would have
changed the outcome of the ALJ's decision. PF&R at
18. Therefore, the magistrate judge recommended that this
court find the ALJ's decision was not supported by
substantial evidence because he had not reviewed the record
as a whole. See id.
argues that Magistrate Judge Tinsley is wrong. According to
the Commissioner, the evidence from Dr. Chianese is merely
cumulative of certain other evidence in the record.
Objections at 2. As for the other evidence submitted to the
Appeals Council, because it post-dated the ALJ's
decision, defendant argues that it does not pertain to the
relevant time period in this matter. See id. at 2-3.
Therefore, the Commissioner submits that there is no
reasonable probability that the additional evidence could
have changed the outcome of the ALJ's decision. See
id. at 1.
court does not agree. While the evidence regarding the
sprained ankle is clearly outside the relevant time period,
the fact that plaintiff had surgery little more than 30 days
after the ALJ's decision might call into question the
ALJ's conclusions about the level of severity of
plaintiff's lower extremities. There is no indication
that this surgery was for anything other than plaintiff's
ongoing complaints regarding her ankle and foot pain.
than repeat the evidence of record regarding plaintiff's
lower extremities, the court relies on the discussion
provided in the PF&R. As to plaintiff's ...