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Caves v. Berryhill

United States District Court, S.D. West Virginia, Bluefield

April 3, 2017

DONNA LORETTA CAVES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          David A. Faber, Senior United States District Judge.

         By 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 court's docket.

         In 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).

         The 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.

         Following 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.

         The new 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.

         Magistrate 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.

         Defendant 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.

         The 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.

         Rather 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 ...


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