ERSKINE v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SIAN ERSKINE, )

)

Plaintiff, )

)

v. ) 1:20CV1176

)

KILOLO KIJAKAZI, )

Acting Commissioner of )

Social Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Sian Erskine, brought this action pursuant to

Section 205(g) of the Social Security Act (the “Act”) to obtain

judicial review of a final decision of Defendant, the Acting

Commissioner of Social Security, denying Plaintiff’s claims for

Disability Insurance Benefits (“DIB”). (Docket Entry 1.)

Defendant has filed the certified administrative record (Docket

Entry 9 (cited herein as “Tr. __”)), and both parties have moved

for judgment (Docket Entries 12, 15; see also Docket Entry 13

(Plaintiff’s Memorandum); Docket Entry 16 (Defendant’s Memorandum);

Docket Entry 17 (Plaintiff’s Reply)). For the reasons that follow,

the Court should enter judgment for Defendant.

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties

need take any further action to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 190-96), alleging a disability

onset date of August 1, 2016 (see Tr. 190).2 Upon denial of that

application initially (Tr. 90-100, 115-18) and on reconsideration

(Tr. 101-14, 125-28), Plaintiff requested a hearing de novo before

an Administrative Law Judge (“ALJ”) (Tr. 132-33). Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 58-89.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 35-45.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,

22-27, 187-89), thereby making the ALJ’s ruling the Commissioner’s

final decision for purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2021.

2. [Plaintiff] has not engaged in substantial gainful

activity since February 15, 2018, the amended alleged

onset date.

3. [Plaintiff] has the following severe impairment:

multiple sclerosis.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

2 At the end of the administrative hearing, Plaintiff amended her alleged

onset date to February 15, 2018. (See Tr. 38, 87-88.)

2

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform light work . . . with the following

exceptions: [s]he can occasionally climb, balance, stoop,

kneel, crouch, and crawl.

. . .

6. [Plaintiff] is capable of performing past relevant

work as an adult education teacher, an assistant retail

manager, and a middle school teacher. This work does not

require the performance of work-related activities

precluded by [Plaintiff]’s residual functional capacity.

. . .

7. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from February 15, 2018, through

the date of this decision.

(Tr. 40-45 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not shown entitlement to relief under the extremely

limited review standard.

3

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

the Court “must uphold the factual findings of the ALJ [underlying

the denial of benefits] if they are supported by substantial

evidence and were reached through application of the correct legal

standard.” Hines, 453 F.3d at 561 (internal brackets and quotation

marks omitted). “Substantial evidence means ‘such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.

1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of more than a mere scintilla of evidence but may be

somewhat less than a preponderance.” Mastro v. Apfel, 270 F.3d

171, 176 (4th Cir. 2001) (internal citations and quotation marks

omitted). “If there is evidence to justify a refusal to direct a

verdict were the case before a jury, then there is substantial

evidence.” Hunter, 993 F.2d at 34 (internal quotation marks

omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

4

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the reviewing court], therefore, is

not whether [the claimant] is disabled, but whether the ALJ’s

finding that [the claimant] is not disabled is supported by

substantial evidence and was reached based upon a correct

application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means 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,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).3 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . detailed regulations incorporating longstanding medical-

vocational evaluation policies that take into account a claimant’s

3 The Act “comprises two disability benefits programs. [DIB] provides

benefits to disabled persons who have contributed to the program while employed.

The Supplemental Security Income Program provides benefits to indigent disabled

persons. The statutory definitions and the regulations . . . for determining

disability governing these two programs are, in all aspects relevant here,

substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations

omitted).

5

age, education, and work experience in addition to [the claimant’s]

medical condition.” Id. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475

n.2 (4th Cir. 1999).4 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, the “claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

4 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.5 Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant

work; if so, the claimant does not qualify as disabled. See id. at

179-80. However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the claimant’s RFC] and [the

claimant’s] vocational capabilities (age, education, and past work

experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary

burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.6

5 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

6 A claimant thus can establish disability via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

(continued...)

7

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ erred by failing to perform a proper function-

by-function evaluation of Plaintiff’s ability to reach, handle and

finger with her [left upper extremity and] her ability to stand and

walk when formulating the RFC” (Docket Entry 13 at 4 (bold font and

single-spacing omitted); see also Docket Entry 17 at 1); and

2) “[t]he [Appeals Council] erred by failing to evaluate and

consider the medical opinion evidence submitted at the [Appeals

Council]” (Docket Entry 13 at 9 (bold font and single-spacing

omitted); see also Docket Entry 17 at 1-2).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 16 at 11-24.)

1. Function-by-Function Analysis

In Plaintiff’s first issue on review, she alleges that “[t]he

ALJ erred by failing to perform a proper function-by-function

evaluation of Plaintiff’s ability to reach, handle and finger with

her [left upper extremity and] her ability to stand and walk when

formulating the RFC.” (Docket Entry 13 at 4 (bold font and single-

6(...continued)

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

8

spacing omitted); see also Docket Entry 17 at 1.) In support of

that argument, Plaintiff points to her “testi[mony] that she cannot

type with her left hand at all and that she left her last job

because she could not be on her feet a lot” (Docket Entry 13 at 4

(citing Tr. 65-66)), “that her left leg is weak, as is her left arm

and hand” (id. (citing Tr. 67)), that, [w]hen she loses energy[,]

her left hand draws into a ball and her walk becomes worse” (id.

(citing Tr. 69)), “that she could only persist at an activity for

about 45 minutes” (id. (citing Tr. 73)), and that, “[a]t the end of

her last job, she was calling in sick one-to-two times per week”

(id. (citing Tr. 70)). Plaintiff further contends that “the

medical evidence of record” supports Plaintiff’s above-described

subjective statements. (Id. at 7; see also id. at 7-8 (detailing

evidence Plaintiff believes documents severity and limiting effects

of her multiple sclerosis (citing Tr. 351, 437, 521, 557-58, 561,

618, 729, 803-04, 843, 850, 857-58, 870)).) Plaintiff asserts

that, “[d]espite th[at] testimony [and evidence], the ALJ assessed

no manipulative limitations for [Plaintiff] in his RFC[, ] found

that she could perform the full range of standing and walking

required of light work, which is up to six hours in an eight-hour

work day[, and] . . . did not calculate any time off-task or

absences based on [Plaintiff]’s fatigue.” (Id. at 4-5 (citing Tr.

42).)

9

Plaintiff additionally notes that the United States Court of

Appeals for the Fourth Circuit “recently clarified . . . that[,]

for functions that are contested and relevant to determining the

claimant’s disability status, a supportable function-by-function

analysis must be performed.” (Id. at 8 (citing Dowling v.

Commissioner of Soc. Sec., 986 F.3d 377, 388-89 (4th Cir. 2021)).)

According to Plaintiff, the [ALJ’s] findings regarding

[Plaintiff]’s ability to use her [left upper extremity], stand[,]

and walk, a[s well as] his calculation of her time off-task and

absenteeism are of critical importance because they are potentially

outcome determinative issues.” (Id.) Plaintiff thus contends that

“remand is necessary for a proper and supportable function-by-

function analysis of the contested functions in this matter.”

(Id.) Plaintiff’s contentions miss the mark.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§ 404.1545(a). An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s

impairments, as well as any related symptoms, including pain. See

Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b). The ALJ then

must match the claimant’s exertional abilities to an appropriate

level of work (i.e., sedentary, light, medium, heavy, or very

heavy). See 20 C.F.R. § 404.1567. Any non-exertional limitations

10

may further restrict a claimant’s ability to perform jobs within an

exertional level. See 20 C.F.R. § 404.1569a(c).

An ALJ need not discuss every piece of evidence in making an

RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d

861, 865 (4th Cir. 2014). However, “the ALJ must both identify

evidence that supports his [or her] conclusion and build an

accurate and logical bridge from that evidence to [that]

conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)

(internal emphasis, quotation marks, and brackets omitted). As to

the role of the function-by-function analysis in that

determination, the relevant administrative ruling states: “The RFC

assessment must first identify the individual’s functional

limitations or restrictions and assess his or her work-related

abilities on a function-by-function basis. . . . Only after that

may RFC be expressed in terms of the exertional levels of work,

sedentary, light, medium, heavy, and very heavy.” Social Security

Ruling 96-8p, Policy Interpretation Ruling Titles II and XVI:

Assessing [RFC] in Initial Claims, 1996 WL 374184, at *1 (July 2,

1994) (“SSR 96-8p”).

The Fourth Circuit has addressed this administrative ruling

and the issue of whether an ALJ’s failure to articulate a

function-by-function analysis necessitates remand. See Mascio v.

Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015). Specifically, it

stated “that a per se rule is inappropriate given that remand would

11

prove futile in cases where the ALJ does not discuss functions that

are irrelevant or uncontested,” id. at 636, but that “‘remand may

be appropriate where an ALJ fails to assess a claimant’s capacity

to perform relevant functions, despite contradictory evidence in

the record, or where other inadequacies in the ALJ’s analysis

frustrate meaningful review,’” id. (internal brackets and ellipsis

omitted) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir.

2013)).

Here, the ALJ did not perform a function-by-function analysis

of Plaintiff’s work-related abilities (see Tr. 42-45); however, no

basis for remand exists, because the ALJ’s decision nevertheless

supplies the necessary “accurate and logical bridge,” Woods, 888

F.3d at 694 (internal quotation marks omitted), between the

evidence and his findings that Plaintiff’s (A) multiple sclerosis

qualified as “severe” (Tr. 40) but (B) did not cause limitations

greater than those reflected in the RFC (see Tr. 41-42).

The ALJ’s evaluation of the opinion evidence explains the

limitations in the RFC. In that regard, the ALJ found “persuasive”

the opinions of the reconsideration-level state agency medical

consultant (Tr. 44), who limited Plaintiff to light work (including

up to six hours each of standing and walking) with occasional

climbing, balancing, stooping, kneeling, crouching, and crawling

and no manipulative restrictions or allowances for time off-task or

absences (see Tr. 109-10). In that regard, the ALJ expressly noted

12

that he found the reconsideration-level consultant’s opinions more

persuasive than those of the initial-level consultant (who had

found Plaintiff capable of the full range of light work (see Tr.

95-96)), because the reconsideration-level consultant’s opinions

“better account[ed] for the mild deficits of coordination

documented in [Plaintiff]’s medical history” (Tr. 44 (emphasis

added)).

The ALJ’s analysis of Plaintiff’s subjective symptom reporting

further explains the RFC’s limitations. The ALJ discussed at

length Plaintiff’s testimony regarding the impact of her multiple

sclerosis on her ability to manipulate items with her left hand,

her balance and gait, and her energy level (see Tr. 42), but found

that Plaintiff’s “statements concerning the intensity, persistence,

and limiting effects of [her] symptoms [we]re not entirely

consistent with the medical evidence and other evidence in the

record” (Tr. 43). In particular, the ALJ noted that he found

Plaintiff’s testimony regarding her left arm symptoms “unpersuasive

because her medical history d[id] not demonstrate that her left arm

ha[d] been significantly impaired on a chronic basis” (id.

(emphasis added)), and observed that “the motor strength in her

left arm was only mildly reduced at 5-/5” (id. (emphasis added)

(citing Tr. 425)). Regarding Plaintiff’s claimed left leg weakness

and unsteady gait, the ALJ found that Plaintiff’s “medical history

show[ed] that her [multiple sclerosis] . . . d[id] not cause her to

13

have more than mild functional limitations on a chronic basis” (id.

(emphasis added)), and noted findings that “her gait and leg

strength had improved,” that her gait remained only “mildly wide

with left foot drop,” that “her balance was unimpaired,” and her

left leg strength “was slightly decreased at 5-/5” (id. (emphasis

added) (citing Tr. 421, 425); see also id. (discussing findings of

treating physician of weakness in extremities but only “‘mild

discoordination and mild limp’”)).’

Furthermore, the ALJ commented on the type and effectiveness

of Plaintiff’s treatment, noting “evidence showing that

[Plaintiff]’s [multiple sclerosis wa]s manageable with Tysabri,

Adderall, and exercise[, and] that her gait improved with the use

of a WalkAide device.” (Tr. 44; see also Tr. 43 (finding

Plaintiff’s multiple sclerosis “controlled with Tysabri” and her

7 In Plaintiff’s reply, she deems the Commissioner’s arguments “post hoc

rationalizations . . . [tJo the extent that [the Commissioner] relie[d] upon

medical summary not provided by the ALJ.” (Docket Entry 17 at 1 (citing, inter

alia, Docket Entry 16 at 14-17 and Arakas v. Commissioner of Soc. Sec., 983 F.3d

83, 109 (4th Cir. 2020)).) Plaintiff, however, makes no attempt to point out

which of the Commissioner’s statements on the four pages of her Memorandum

Plaintiff cited constitute a “post hoc rationalization.” (Id.) That failure

precludes relief. See United States v. Zannino, 895 F.2d 1, 17 (lst Cir. 1990)

(“[A] litigant has an obligation to spell out its arguments squarely and

distinctly, or else forever hold its peace.” (internal quotation marks omitted) □□

Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1n.1 (M.D.N.C.

Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party should not expect a court

to do the work that it elected not to do.”). Furthermore, although the

Commissioner discussed findings in medical records not expressly mentioned by the

ALJ (see, _ ¢.g., Docket Entry 16 at 14-17 (discussing, inter alia, Plaintiff's

treatment records from physical therapists, urologist, and gastroenterologist)),

this Recommendation has confined its analysis to evidence either actually cited

by the ALJ or impliedly referenced by his more general statements (see, e.g., Tr.

43 (“[Plaintiff’s] medical history shows that her [multiple sclerosis] is

controlled with Tysabri, and that the disease does not cause her to have more

than mild functional limitations on a chronic basis.”).

14

fatigue “improved with medication and exercise”).) The ALJ also

noted that, despite complaints of disabling symptoms, Plaintiff’s

“daily activities [] included preparing simple meals, caring for

her cat, doing laundry, driving a car, shopping online, shopping in

stores, volunteering at Reading Connections, spending time with

relatives visiting from the United Kingdom, exercising at a fitness

center two or three times per week, traveling to New York City to

visit with friends, and vacationing at the beach.” (Tr. 44-45.)

Plaintiff challenges the ALJ’s analysis of Plaintiff’s subjective

symptom reporting on two fronts, neither of which carry the day.

First, Plaintiff contests the ALJ’s finding that Plaintiff’s

medications control her multiple sclerosis symptoms. (See Docket

Entry 13 at 6 (citing Tr. 43).) In that regard, Plaintiff concedes

that she “d[id] not experience exacerbations [of her symptoms]

while on Tysabri,” but notes that “Tysabri d[id] not repair the

deficits that she ha[d] already acquired” (id. (citing Tr. 71)) and

that, “[e]ven on Tysabri, [she] still had left leg spasticity,

weakness, and left foot drop” (id. (citing Tr. 812)). Concerning

Adderall, Plaintiff admits that “it certainly d[id] help [her]

fatigue,” but that it “d[id] not cure her fatigue.” (Id. (citing

Tr. 812-14).) Plaintiff’s argument falls short, because the ALJ

did not find that Plaintiff’s treatments eradicated or cured her

multiple sclerosis symptoms, but merely that they “controlled” and

“improved” her symptoms (Tr. 43) and rendered them “manageable”

15

(Tr. 44) to the point that Plaintiff experienced only “mild

functional limitations on a chronic basis” (Tr. 43) and cited to

evidence supporting that observation (see Tr. 43-44).

Second, Plaintiff faults the ALJ for “disregard[ing

Plaintiff]’s qualifying statements about [her] daily activities”

(Docket Entry 13 at 8 (citing Arakas v. Commissioner of Soc. Sec.,

983 F.3d 83, 100 (4th Cir. 2020))), noting that she “said that she

doesn’t really cook anymore and only does take out or sandwiches

because she is afraid of burning or cutting herself” (id. at 9

(citing Tr. 71)), “that if she goes shopping at the grocery store,

she has to come home and rest” (id. (citing Tr. 72)), that, “[w]hen

she visited friends in New York, she would do something with them

and then take a break” (id. (citing Tr. 77)), that, “[w]hen she

went to the beach, she would mostly sit on the porch because [s]he

has trouble walking in the sand and she would be involved in no

more than two or three hours total of activity in a day” (id.

(citing Tr. 79)), and that she “doesn’t drive that far and she has

to use her right hand to drive” (id. (citing Tr. 79)). According

to Plaintiff, “[r]ead in light of her qualifying statements,

[Plaintiff]’s daily activities are not inconsistent with her

allegations.” (Id.) That contention falls short for two reasons.

To begin, as discussed above, the ALJ did not rely solely on

Plaintiff’s daily activities to discount her subjective symptom

reports, but rather as one part of his overall analysis. (See Tr.

16

42-45.) More significantly, however, the ALJ did not overstate

Plaintiff’s daily activities. The record contains competing

descriptions of Plaintiff’s ability to engage in daily activities

(compare Tr. 71-73 (describing limitations on meal preparation,

shopping, and kitchen clean-up), 76-77 (detailing constraints

during New York City trip), 79-80 (providing limits on driving and

five-day beach visit), with Tr. 238-41 & 279-83 (Function Reports

completed by Plaintiff’s father reflecting Plaintiff regularly

drives to places like stores, friends’ houses, the YMCA, Reading

Connections, and her book club, prepares meals most days, and does

two to three hours of housework per day), 246-49 & 272-75

(Plaintiff’s Function Reports indicating she fixes meals daily,

shops two to three times per week, and attends a monthly book

club), 422 (Plaintiff’s statement to treating neurologist Dr.

Richard A. Sater that she exercised at the YMCA five times per

week)), and the ALJ chose to credit the statements reflecting a

greater ability to engage in such activities. Plaintiff has not

provided the Court with any basis to disturb the ALJ’s resolution

of that conflicting evidence. See Hays v. Sullivan, 907 F.2d 1453,

1456 (4th Cir. 1990) (“Ultimately, it is the duty of the [ALJ]

reviewing a case, and not the responsibility of the courts, to make

findings of fact and to resolve conflicts in the evidence.”).

Moreover, Plaintiff’s ability to engage in such activities, even on

a somewhat limited basis, provides some support, along with the

17

medical and opinion evidence discussed by the ALJ, for the ALJ’s

conclusion that Plaintiff’s multiple sclerosis did not prevent her

from performing a limited range of light work with postural

restrictions (see Tr. 41-42).

In short, Plaintiff’s first assignment of error fails as a

matter of law.

2. Opinion Evidence Submitted to Appeals Council

Plaintiff’s second and final assignment of error maintains

that “[t]he [Appeals Council] erred by failing to evaluate and

consider the medical opinion evidence submitted at the [Appeals

Council].” (Docket Entry 13 at 9 (bold font and single-spacing

omitted); see also Docket Entry 17 at 1-2.) More specifically,

Plaintiff notes that she submitted two opinions from Dr. Sater to

the Appeals Council (the “Sater Opinions”) (see Docket Entry 13 at

9 (citing Tr. 28-29, 34)), but that “it is not apparent that anyone

meaningfully considered th[e Sater Opinions]” (id. at 10), because

“the [Appeals Council] stated specifically that th[e] [Sater

Opinions] w[ere] not exhibited because they ‘d[id] not show a

reasonable probability that [they] would change the outcome of the

[ALJ’s] decision’” (id. at 10-11 (quoting Tr. 2)). According to

Plaintiff, “[w]hile the [Appeals Council] is not required to

articulate its reasons for denying review of an ALJ’s decision, if

the newer evidence undermines the ALJ’s reasons for denying the

claim, then remand is warranted as no fact finder has made findings

18

regarding that evidence or ‘attempted to reconcile that evidence

with the conflicting and supporting evidence in the record.’” (Id.

at 11 (quoting Hester v. Colvin, No. 1:14CV751, 2016 WL 1364190, at

*4 (M.D.N.C. Mar. 31, 2016) (unpublished) (Webster, M.J.),

recommendation adopted, 2016 WL 5477614 (M.D.N.C. Sept. 29, 2016)

(unpublished) (Tilley, S.J.)).) Plaintiff thus contends that,

because the Sater Opinions “would seem to undercut the ALJ’s

reasoning for finding so few limitations in the RFC[,] . . . remand

is necessary for proper consideration of th[e Sater Opinions] and

to reconcile [them] with the other medical evidence of record.”

(Id.)

As an initial matter, Plaintiff’s reliance on Hester misses

the mark, because that case applied a prior version of the

regulatory provision governing the Appeals Council’s consideration

of new evidence. See Hester, 2016 WL 1364190, at *4 (applying 20

C.F.R. § 404.970 (version effective until Jan. 16, 2017)). That

prior version of the regulation provided that, “[i]f 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’s] hearing decision.” 20 C.F.R.

§ 404.970(b) (1987).

The new version, effective January 17, 2017, provides as

follows:

(a) The Appeals Council will review a case if—

19

(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.

(bob) The Appeals Council will only consider additional

evidence under paragraph (a) (5) of [ SJection [404.970]

if [the claimant] show[s] good cause for not informing

[the SSA] about or submitting the evidence [no later than

five business days before the date of the scheduled ALJ

hearing] as described in § 404.935 because:

(1) [The SSA’s] action misled [the claimant];

(2) [The claimant] had a physical, mental,

educational, or linguistic limitation(s) that

prevented [him or her] from informing [the

SSA] about or submitting the evidence earlier;

or

(3) Some other unusual, unexpected, or

unavoidable circumstance beyond your control

prevented [the claimant] from informing [the

SSA] about or submitting the evidence earlier.

Examples include, but are not limited to:

(i) [The claimant] wlas] seriously

ill, and [his or her] illness

prevented [him or her] from

contacting [the SSA] in person, in

writing, or through a friend,

relative, or other person;

(ii) There was a death or serious

illness in [the claimant’s]

immediate family;

(1ii) Important records were

destroyed or damaged by fire or

other accidental cause;

(iv) [The claimant] actively and

diligently sought evidence from a

20

source and the evidence was not

received or was received less than 5

business days prior to the hearing;

or

(v) [The claimant] received a

hearing level decision on the record

and the Appeals Council reviewed

your decision.

20 C.F.R. § 404.970 (2017).® Thus, the new regulation adds two

requirements to a claimant’s burden to have new evidence considered

by the Appeals Council in connection with a request for review: a

claimant must show (1) good cause for the failure to submit the

evidence in question at least five business days prior to the date

of the ALJ’s hearing pursuant to 20 C.F.R. § 404.935, and (2) a

reasonable probability of a different outcome.’

□ Evidence submitted to the Appeals Council is:

° “new if it is not part of the [administrative record] as of

the date of the [ALJ’s] decision”;

e “material if it is relevant, i.e., involves or is directly

related to issues adjudicated by the ALJ”; and

° “relate[d] to the period on or before the date of the hearing

decision if the evidence is dated on or before the date of the

hearing decision, or .. . post-dates the hearing decision but

is reasonably related to the time period adjudicated in the

hearing decision.”

Hearings, Appeals, and Litigation Law Manual (“HALLEX”), § I1-3-3-6B.2

(“Additional Evidence”) (May 1, 2017), available at https://www.ssa.gov/

OP_home/hallex/I-03/I-3-3-6.html.

° Long-standing Fourth Circuit law defined “material” as a reasonable

possibility the new evidence would have changed the outcome of the case. see

Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); Wilkins v. Secretary, Dep’t

of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Thus, the new version

of Section 404.970 increases a claimant’s burden from showing a reasonable

possibility to a reasonable probability, and makes the obligation to show a

reasonable probability of a different outcome an additional requirement to

showing materiality.

21

The Commissioner defends the Appeals Council’s refusal to

consider the Sater Opinions on three grounds. First, the

Commissioner contends that the Sater Opinions, although dated after

the ALJ’s decision, do not qualify as “new,” because “Plaintiff was

represented by counsel and had every opportunity to obtain such

documentation during the relevant period and prior to her

administrative hearing.” (Docket Entry 16 a 21-22 (citing, inter

alia, Evangelista v. Secretary of Health & Human Servs., 826 F.2d

136, 140 (1st Cir. 1987), and Spencer v. Commissioner of Soc. Sec.

Admin., Civ. No. 16-1735, 2017 WL 1379605, at *11 (D.S.C. Jan. 31,

2017) (unpublished)).) Second, the Commissioner maintains that

“Plaintiff simply cannot establish good cause for her failure to

submit [the Sater Opinions] earlier,” because she “has not

established (or even alleged) any ‘unusual, unexpected, or

unavoidable circumstance’ beyond her control that prevented her

from submitting [the Sater Opinions] earlier nor does she meet any

of the other specific good cause definitions outlined in[ Section]

404.970(b).” (Id. at 23.) Third, the Commissioner credits the

Appeals Council’s finding “that Plaintiff’s late-submitted evidence

[did not] create[] a reasonable probability that the additional

evidence would change the outcome of the [ALJ’s] decision.” (Id.

(internal quotation marks omitted).)

In Plaintiff’s Reply, she contests the Commissioner’s argument

that Plaintiff failed to demonstrate good cause for the late-

22

submitted Sater Opinions. (See Docket Entry 17 at 1-2.) According

to Plaintiff, the Sater Opinions “did not yet exist at the time

when the ALJ made his ruling on April 27, 2020” (id. at 1), and

characterizes the Commissioner’s “insistence that Plaintiff should

have informed the ALJ of the existence of nonexistent

evidence . . . odd and... tortured reading of the five-day

rule” (id. at 1-2 (internal quotation marks omitted)). Plaintiff

further notes “that the list of unavoidable circumstances [under

Section 404.970(b)] is not exhaustive,” and argues that “[t]he fact

that the evidence did not exist is such an unavoidable

circumstance.” (Id. at 2.)

a. New Evidence

The Commissioner contends that the Sater Opinions, although

dated after the ALJ’s decision, do not qualify as “new,” because

“evidence is ‘new’ only if it was ‘not in existence or available to

the claimant at the time of the administrative proceeding’” (Docket

Entry 16 at 21 (emphasis added) (quoting Sullivan v. Finkelstein,

496 U.S. 617, 626 (1990))), and “Plaintiff was represented by

counsel and had every opportunity to obtain such documentation

during the relevant period and prior to her administrative hearing”

(id. at 21-22 (citing, inter alia, Evangelista, 826 F.2d at 140,

and Spencer, 2017 WL 1379605, at *11)). The SSA’s updates to the

Hearings, Appeals, and Litigation Law Manual (“HALLEX”), enacted to

assist the Appeals Council with implementation of the new version

23

of Section 404.970 effective May 1, 2017, belie the Commissioner’s

argument. Evidence submitted to the Appeals Council qualifies as

“new if it [wa]s not part of the [administrative record] as of the

date of the [ALJ’s] decision.” HALLEX, § I-3-3-6B.2 (“Additional

Evidence”) (May 1, 2017), available at https://www.ssa.gov/

OP_home/hallex/I-03/I-3-3-6.html. In light of that definition,

which does not depend on the “availability” of the evidence, the

Sater Opinions, created on May 22, 2020 (see Tr. 29) and June 2,

2020 (see Tr. 34), clearly qualify as “new.” Thus, this factor

would not have provided the Appeals Council with a basis to reject

the Sater Opinions.

b. Good Cause

The Commissioner next maintains that “Plaintiff simply cannot

establish good cause for her failure to submit [the Sater Opinions]

earlier,” because she “has not established (or even alleged) any

‘unusual, unexpected, or unavoidable circumstance’ beyond her

control that prevented her from submitting [the Sater Opinions]

earlier nor does she meet any of the other specific good cause

definitions outlined in[ Section] 404.970(b).” (Docket Entry 16 at

23.) The Appeals Council, in denying Plaintiff’s request for

review, remarked as follows:

[Plaintiff] submitted a medical source statement

[(‘MSS’)] from Alexander Arya Eksir, M.D. dated June 1,

2020 (3 pages), a[n MSS] from [Dr.] Eksir[] dated June 1,

2020 (1 page), a[n MSS] from [Dr.] Sater[] dated June 2,

2020 (1 page), and a[n MSS] from [Dr.] Sater[] dated May

24

22, 2020 (2 pages). [The Appeals Council] find[s] this

evidence does not show a reasonable probability that it

would change the outcome of the [ALJ’s] decision. [The

Appeals Council] did not exhibit this evidence.

(Tr. 2 (emphasis added).) Thus, the Appeals Council did not

expressly find that Plaintiff lacked good cause for failing to

submit the Sater Opinions in a timely manner to the ALJ but rather

found that the Sater Opinions did not establish a reasonable

probability of a different outcome. (See id.)

Courts across the country disagree on whether a federal

district court on judicial review can consider whether good cause

for the late-submitted evidence exists when the Appeals Council did

not cite lack of good cause as its basis for rejecting the

evidence. Compare, e.g., Sewell v. Commissioner, SSA, No. 20-1409,

2021 WL 3871888, at *5 (10th Cir. Aug. 31, 2021) (holding the

plaintiff lacked good cause for late submission even though Appeals

Council did not cite any reason for not considering new evidence),

cert. denied sub nom., Sewell v. Kijakazi, No. 21-795, 2022 WL

199400 (U.S. Jan. 24, 2022), Y.E.L. v. Kijakazi, No. 20CV4892, 2021

WL 5998442, at *3 (N.D. Cal. Dec. 20, 2021) (unpublished)

(considering whether the plaintiff had shown good cause for non-

compliance with five-day rule despite fact that “Appeals Council

did not cite lack of good cause as a reason for declining [the

plaintiff]’s additional evidence”), Zimmerman v. Commissioner of

Soc. Sec. Admin., No. CV-19-575, 2021 WL 4129448, at *18-19 (D.

25

Ariz. Sept. 10, 2021) (unpublished) (finding good cause lacking

notwithstanding Appeals Council’s rejection of new evidence as

chronologically irrelevant and immaterial), and Howell v. Saul, No.

2:18CV1323, 2019 WL 3416613, at *11 (D.S.C. July 10, 2019)

(unpublished) (deeming good cause wanting notwithstanding Appeals

Council’s reasonable probability and chronological relevance

rationales), recommendation adopted, 2019 WL 3413244 (D.S.C. July

29, 2019) (unpublished), with, e.g., Arndt v. Kijakazi, No.

4:19CV98, 2021 WL 5905646, at *6 (N.D. Ind. Dec. 14, 2021)

(unpublished) (noting that “the [Appeals] Council never stated that

it was dismissing the evidence for a lack of good cause[ and,

t]hus, the [c]Jourt will not affirm on those grounds”), Dara L. v.

Saul, No. 1:19CV104, 2021 WL 1169653, at *4 n.4 (D. Utah Mar. 26,

2021) (unpublished) (“Where the Appeals Council did not reject the

evidence for failure to establish good cause for missing the [five-

day] deadline, the court does not reach this issue.”), Rankin v.

Saul, No. 1:19CV1195, 2020 WL 702749, at *22 (D.S.C. Feb. 12, 2020)

(unpublished) (refusing to adderss Commissioner’s good cause

argument where Appeals Council found evidence “not new and

material”), and Emmons v. Saul, Civ. No. 19-102, 2020 WL 376708, at

*5 (D.N.M. Jan. 23, 2020) (unpublished) (declining to consider

whether the plaintiff had good cause for failing to submit

additional evidence earlier, where Appeals Council rejected

additional evidence based on lack of chronological relevance).

26

Here, Plaintiff made no arguments directed at establishing

good cause before the Appeals Council (see Tr. 23, 26, 329) or in

her opening brief to this Court (see Docket Entry 13), the

Commissioner argued lack of good cause in support of her Motion for

Judgment on the Pleadings (see Docket Entry 16 at 18-24), and,

although Plaintiff addressed good cause in her Reply, she did not

raise the Appeals Council’s “reasonable probability” rationale as

a barrier to the Court’s consideration of good cause (see Docket

Entry 17 at 1-2). Moreover, the Appeals Council did not expressly

waive the good cause requirement in any of its notices to Plaintiff

(see Tr. at 1-3, 17). See Vahey v. Saul, Civ. No. 18-350, 2019 WL

3763436, at *6 n.6 (D. Haw. Aug. 9 2019) (unpublished) (“As far as

the [c]ourt can tell, the Appeals Council did not explicitly waive

the good cause requirement as it did for some claimants after the

new [version of Section 404.970] went into effect.”}. Under such

circumstances, the Court should follow the reasoning of cases like

Sewell, Y.F.L., Zimmerman, and Howell, and assess whether Plaintiff

has shown good cause under Section 404.970 for the untimely

submission of the Sater Opinions.

As discussed above, Plaintiff posits that the fact that the

Sater Opinions “did not yet exist at the time when the ALJ made his

ruling on April 27, 2020” (Docket Entry 17 at 1) qualifies as “an

unavoidable circumstance” preventing timely submission under

Section 404.970(b) (3) (id. at 2). Many courts, however, have

27

rejected such an argument. See, e.g., Frasca v. Commissioner of

Soc. Sec., No. CV 20-10194, 2021 WL 4077540, at *8 (D.N.J. Sept. 8,

2021) (unpublished) (holding that “a plaintiff must go beyond

stating that evidence is new in order to fulfill the good cause

requirement”); Marquez v. Saul, No. 1:20CV110, 2021 WL 2073510, at

*5 (D.N.M. May 24, 2021) (unpublished) (“[T]hat [the new] opinions

were dated after the ALJ’s decision . . . on [its] face [does not]

present the sort of ‘unusual, unexpected, or unavoidable

circumstance[s] beyond [the plaintiff’s] control’ that would

warrant waiver of the Commissioner’s evidentiary-submission

deadlines.”); Smith v. Berryhill, No. CV 1:18-337, 2019 WL 1549036,

at *21 (D.S.C. Mar. 6, 2019) (unpublished) (“[The p]laintiff may

not use the date of the [new evidence], which was [crea]ted after

the hearing and days before the ALJ’s decision was rendered, to

automatically qualify as a good cause exception because it

undermines the purpose of the rule.”), recommendation adopted, 2019

WL 1533171 (D.S.C. Apr. 9, 2019) (unpublished); Scherer v.

Berryhill, No. 2:17CV53, 2018 WL 3069205, at *3 (N.D.W. Va. Apr. 4,

2018) (unpublished) (“Nothing in the record indicates that there

was any reason [the treating physician]’s findings were not

presented to the ALJ other than the fact that the assessments had

not yet taken place . . . . This is not one of the circumstances

provided by [Section 404.970(b)] that would constitute good cause

thereby allowing the Appeals Council to consider such evidence.”),

28

recommendation adopted, 2018 WL 1960531 (N.D.W. Va. Apr. 26, 2018)

(unpublished). Moreover, Plaintiff’s argument glosses over the

procedural progression of her DIB claim, which makes clear that

Plaintiff had ample opportunity to obtain opinion evidence from Dr.

Sater in a timely manner but simply failed to do so.

Plaintiff first retained her hearing counsel in connection

with her request for reconsideration in April of 2018. (Tr. 119-

20.) On June 18, 2019, the ALJ notified Plaintiff and her counsel

that he would hear Plaintiff’s case on October 31, 2019. (Tr. 149-

77.) On October 24, 2019, Plaintiff’s counsel sent the ALJ a

letter “[p]ursuant to the 5 day rule” advising him “that all of the

medical records [counsel was] aware of ha[d] been e-filed except

for . . . medical records . . . from [Cone Health Behavioral Health

Hospital] from June 13, 2019 through to the present.” (Tr. 326.)

In that letter, Plaintiff’s counsel did not mention that she

intended to obtain or submit opinion evidence from any provider.

(See id.)10

At the beginning of the hearing, the ALJ inquired whether

Plaintiff’s counsel was “satisfied the record [wa]s complete” and

whether “there [were] additional exhibits,” to which Plaintiff’s

counsel responded that “[t]he one thing that [sh]e mentioned in the

five-day letter did come in and [sh]e did submit it,” and that she

10 The record reflects that Dr. Sater had treated Plaintiff for her

multiple sclerosis symptoms since at least November 23, 2016. (See Tr. 364-68.)

29

“believe[d] other than ongoing appointments that [Plaintiff] ha[d],

the record [wa]s complete.” (Tr. 62 (emphasis added) .) During

another preliminary discussion between the ALJ and Plaintiff’s

hearing counsel, the following discussion occurred:

ALJ: Are there any medical opinions in the evidence that

I need to be aware of?

ATTY: No, I don’t think so, Your Honor. Trying to get

doctors these days to write letters, they - most of them

are overworked and it’s just tougher than it used to be.

So there aren’t any.

ALJ: Yeah. Well, I appreciate that. But anything, even,

you. know, mention [sic] in an office visit note

of . . . [Plaintiff] tells me she’s applied for

disability and I certainly support her in that - language

along those lines?

ATTY: I don’t think there’s anything like that. ....

ALJ: Any work restrictions or limitations from any of the

doctors, you know, [Plaintiff] should not lift or carry

more than 20 pounds or anything like that?

ATTY: No. But I think [Plaintiff’s] doctors were in

agreement with [her] coming out of work in 2016, weren’t

they?

[PLAINTIFF]: [T]hey would not take me out of work, but I

decided -

ATTY: She decided to leave work in 2016, but her doctors

were fully on board at that point.

ALJ: Is that documented?

ATTY: I don’t think they mention it. I_read through

everything last night and I don’t think they mentioned it

specifically.

(Tr. 63-64 (emphasis added).) Despite that discussion, Plaintiff’s

hearing counsel did not thereafter request that the ALJ hold the

30

record open to permit counsel to obtain such opinion evidence.

(See Tr. 64-88.)

Following the ALJ’s unfavorable decision, Plaintiff’s hearing

counsel requested review with the Appeals Council (Tr. 187-89) and

submitted reasons she disagreed with the ALJ’s decision (Tr. 22-23,

25-27, 328-30), along with new evidence including the Sater

Opinions (Tr. 8-16, 28-34, 331-35). In her brief to the Appeals

Council, Plaintiff’s hearing counsel stated that, after Plaintiff

“told [Dr. Sater] that she was denied disability[, he ] insisted on

writing a letter and filling out a form about [Plaintiff’s multiple

sclerosis” (Tr. 22, 26, 329), but counsel made no argument

regarding good cause for her failure to submit that evidence at

least five business days prior to the ALJ’s hearing (see Tr. 22-23,

25-27, 328-30). The Appeals Council thereafter advised counsel

that, “[i]f [she] ha[d] more information, [she] must send it to

[the Appeals Council] within 25 days.” (Tr. 17.) The Appeals

Council further informed counsel that she could “send [the Appeals

Council] a statement about the facts and the law in [Plaintiff’s]

case or additional evidence,” which Plaintiff’s counsel must “show

is new, material, and relates to the period on or before the date

of the [ALJ’s] hearing decision,” as well as that she must also

show a reasonable probability that the additional evidence would

change the outcome of the [ALJ’s] decision[, and] . . . good cause

for why [she] missed informing [the ALJ] about or submitting it

31

earlier.” (Id. (emphasis added).) So far as the record reflects,

Plaintiff’s counsel did not submit anything further to the Appeals

Council.

As the above-described facts make clear, Dr. Sater treated

Plaintiff since at least November 23, 2016 (see Tr. 364-68), and

Plaintiff’s hearing counsel represented Plaintiff since April 2,

2018 (see Tr. 119-20) and thus Plaintiff’s hearing counsel had two

years to obtain opinion evidence from Dr. Sater and submit it to

the ALJ in a timely manner, but did not do so. Although

Plaintiff’s above-quoted hearing testimony that her doctors “would

not take [her] out of work” in 2016 (Tr. 64) might explain why

hearing counsel, at least initially, did not obtain opinion

evidence from Dr. Sater, Plaintiff admitted that the ALJ’s denial

of her DIB claim in April 2020 prompted her to finally obtain the

Sater Opinions (see Tr. 22, 26, 329). Those facts, however, simply

do not demonstrate “unusual, unexpected, or unavoidable

circumstance[s] beyond [Plaintiff or her hearing counsel’s]

control,” 20 C.F.R. § 404.970 (b) (3). See Wooding v. Commissioner

of Soc. Sec., No. 4:10CV6, 2010 WL 4261268, at *6 (W.D. Va. Oct.

29, 2010) (unpublished) (finding “damaging” the “[p]laintiff’s own

admission that the [vocational specialist]’s report was submitted

32

simply to provide an after-the-fact contradiction of the ALJ’s

findings”).11

Moreover, counsel’s observation during the hearing that “most

[health care providers] are overworked and it’s just tougher than

it used to be [to obtain written opinions from such providers]”

(Tr. 63) falls far short of demonstrating that she “actively and

diligently sought evidence from a source and the evidence was not

received,” 20 C.F.R. § 404.970(b)(3)(iv). See Marquez, 2021 WL

2073510, at *5 (“[N]othing in the record indicates when [the

plaintiff] first requested th[e new] statement from [her treating

physician], [or] what efforts she made to ensure that it was timely

submitted to the Commissioner before the ALJ’s hearing. In other

words, there is no indication in the record that the [plaintiff]

‘actively and diligently’ sought [the treating physician]’s

opinions on mental limitations but was nonetheless unable to

procure them before the deadline to do so.” (internal citations and

11 The SSA’s notice of final rule regarding the revisions to Section

404.970 make clear that the five-day rule would apply to neither 1) “evidence of

ongoing treatment, which was unavailable at least 5 business days before the

hearing,” nor 2) additional evidence “a new representative” sought to introduce

if the “new representative c[ould] show that a prior representative did not

adequately uphold his or her duty to the claimant.” Ensuring Program Uniformity

at the Hearing and Appeals Council Levels of the Administrative Review Process,

81 Fed. Reg. 90987-01, 90991 (Dec. 16, 2016) (emphasis added). The Sater

Opinions do not qualify as “evidence of ongoing treatment,” id., because they

reflect opinions discussing Plaintiff’s treatment that occurred prior to the

ALJ’s decision and do not reference (or enclose) office visits post-dating the

ALJ’s decision (see Tr. 28-29, 34). Moreover, as Plaintiff’s hearing counsel

submitted the Sater Opinions to the Appeals Council, she could not have argued

that “a prior representative did not adequately uphold his or her duty to

[Plaintiff],” id. (emphasis added).

33

some quotation marks omitted)); Howell, 2019 WL 3416613, at *11

(D.S.C. July 10, 2019) (unpublished) (finding good cause lacking

where the “[p]laintiff [alleg]ed only that he had difficulty in

obtaining additional testing and treatment; [and he] did not

explain, however, how he was suddenly able to pay for and obtain

the electrodiagnostic examination only two (2) months after the

ALJ’s unfavorable decision”).

In sum, Plaintiff has not demonstrated good cause under

Section 404.970(b) for her failure to inform the ALJ about or to

submit to the ALJ the Sater Opinions at least five business days

prior to the ALJ’s hearing. As such, the Appeals Council did not

err in rejecting the Sater Opinions.

c. Reasonable Probability

Even assuming, arguendo, that the Appeals Council’s

“reasonable probability” rationale precludes this Court from

finding Plaintiff lacked good cause for the untimely submission of

the Sater Opinions, Plaintiff still could not prevail, as the

Appeals Council did not err in rejecting the Sater Opinions because

they “d[id] not show a reasonable probability that [they] would

change the outcome of the [ALJ’s] decision” (Tr. 2).

On May 22, 2020, Dr. Sater completed a pre-printed form

entitled “Medical statement regarding multiple sclerosis for Social

Security Disability claim.” (Tr. 28-29.) On that form, Dr. Sater

indicated that Plaintiff’s multiple sclerosis caused her to

34

experience a “crossed adduction response at [the] left knee,”

“[a]taxia,” “[w]eakness,” “[s]tiffness,” “[d]ifficulty with bladder

control,” “[o]ther emotional disturbances,” “[s]ustained

disturbance of gross and dexterous movements,” “[s]ustained

disturbance of gait and station,” and “[e]xtreme limitation in the

ability to balance while standing or walking.” (Tr. 28.)

According to Dr. Sater, those symptoms would cause Plaintiff to

have “[m]arked” limitation in “[p]hysical functioning” (id.), and

would limit her to two hours total of work in a day, 15 minutes of

standing at one time and for one hour total, occasionally lifting

five pounds, no use of the left arm to work, and occasional to

frequent use of the right arm to work (Tr. 29).

Thereafter, on June 2, 2020, Dr. Sater penned a “[t]o whom it

may concern” letter in which he opined as follows:

After a large exacerbation [sic] October 2017 causing

severe left-sided weakness and clumsiness[, Plaintiff]

was switched to Tysabri, an[ intravenous] medication.

[Plaintiff] has significant physical impairments from the

multiple sclerosis. She has left-sided weakness and

spasticity involving the left leg and arm. She has a

spastic gait and reduced balance. Additionally, there is

reduced coordination with poor ability to do rapid

alternating movements on the left. Furthermore, from her

multiple spinal cord plaques, she has urinary urgency and

frequency, treated with transurethral Botox injections

into the bladder.

Additionally, she has cognitive dysfunction from her

[multiple sclerosis] with daily fatigue and cognitive

issues from the [multiple sclerosis] causing reduce [sic]

focus and attention. She also has depression.

35

Due to the combination of her physical and cognitive

impairments and her fatigue, I feel that she is disabled

and unable to work.

(Tr. 34.)

Although the Sater Opinions constitute the only opinions from

Plaintiff’s treating neurologist and conflict with the ALJ’s RFC

(compare Tr. 28-29, 34, with Tr. 41-42), those facts alone do not

mandate remand:

The plaintiff, relying on Meyer[ v. Astrue, 662 F.3d 700

(4th Cir. 2011)], argues that the [new] opinions meet the

reasonable probability standard because the

. . . evidence is the only opinion from the plaintiff’s

treating psychiatrist . . ., and because [one of the new

opinions] contains additional mental limitations not

consistent with the ALJ’s RFC. . . . However, Meyer does

not require remand in all cases where a treating

physician’s opinion was first submitted to the Appeals

Council. Indeed, such a policy of blanket remand when

the opinions are first submitted to the Appeals Council

would create an incentive for claimants to avoid

submitting treating physician opinions to the ALJ.

Moseley v. Berryhill, Civ. No. 6:18-1389, 2019 WL 2107917, at *11

(D.S.C. Apr. 22, 2019) (unpublished) (internal parenthetical and

regulatory citations omitted), recommendation adopted, 2019 WL

2106181 (D.S.C. May 14, 2019) (unpublished). Moreover, the ALJ

here, unlike in Meyer, 662 F.3d at 707, did not specifically rely

on the lack of treating source medical opinions in the record in

denying Plaintiff’s DIB claim. (See Tr. 42-45.)

Furthermore, the ALJ’s discussion of the medical evidence

focused primarily on Dr. Sater’s treatment records, and the ALJ

noted the following pertinent findings:

36

• “according to a neurological note dated May 17,

2018, the motor strength in [Plaintiff’s] left arm

was only mildly reduced at 5-/5,” Plaintiff “was

tolerating [Tysabri] well,” “she had not

experienced a flare of the disease since she had

started using the drug in November 2017,” “her gait

and leg strength had improved,” “her Romberg was

negative, indicating that her balance was

unimpaired,” and “the motor strength in her left

leg . . . was slightly decreased at 5-/5” (Tr. 43

(citing Tr. 421, 425); see also Tr. 427-31 (7/12/18

office visit with Dr. Sater reflecting similar

improvement and mild findings on exam), 433-38

(10/23/18 Dr. Sater treatment note recording stable

symptoms and mild objective findings)); and

• “[i]n July [2019, Dr. Sater] again noted that

[Plaintiff] had not suffered any exacerbations of

her [multiple sclerosis] since she had started

taking Tysabri,” “that her gait was ‘mildly wide,’”

“that Adderall improved her fatigue, and that her

endurance had improved with exercise” (Tr. 43

(citing Tr. 812, 818)).

Significantly, those same treatment records form the basis of the

Sater Opinions. Thus, in light of the considerable improvement in

Plaintiff’s multiple sclerosis symptoms shown in Dr. Sater’s 2018

and 2019 treatment records, the ALJ clearly would not have credited

the Sater Opinions’ extreme restrictions (which conflict with Dr.

Sater’s own records). Consideration of the ALJ’s decision makes

clear that, contrary to Plaintiff’s arguments, the Sater Opinions

would have neither “undermine[d] the ALJ’s reasons for denying the

claim” nor “undercut the ALJ’s reasoning for finding so few

limitations in the RFC” (Docket Entry 13 at 11). See Burrell v.

Saul, No. 2:18CV2560, 2020 WL 2476974, at *13-14 (D.S.C. Jan. 15,

2020) (unpublished) (noting that “the conclusions in [the treating

37

physician]’s [p]hysical [c]apacities [e]valuation [we]re based on

his treatment notes — the same notes considered by the ALJ in

determining [the p]laintiff’s disability status,” and holding that,

“[g]iven that [the treating physician]’s opinion is based on and

reflective of information already in the record and considered by

the ALJ, . . . [the physician]’s subsequent check-the-box form does

not provide new and material evidence that would undermine the

ALJ’s prior findings”), recommendation adopted, 2020 WL 1270673

(D.S.C. Mar. 17, 2020) (unpublished); Moseley, 2019 WL 2107917, at

*11-12 (finding Appeals Council did not err in determining that new

evidence failed to raise reasonable probability of different

outcome, and noting that “elements of [the new psychiatric]

opinions [we]re refuted by evidence in the record before the ALJ —

including [psychiatrist]’s own records” and that, “although the ALJ

did not have the opportunity to review [the psychiatrist]’s [new]

opinions, [the ALJ] relied on substantial evidence in reaching his

conclusion that would have been relevant to the analysis of the

opinion under 20 C.F.R. §[] 404.1527(c)”).

Simply put, Plaintiff has not shown that the Appeals Council

erred in declining to consider the Sater Opinions because those

opinions “d[id] not show a reasonable probability that [they] would

change the outcome of the [ALJ’s] decision” (Tr. 2).

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I I I . C O N C L U S I O N

Plaintiff has not established an error warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

Judgment on the Pleadings (Docket Entry 12) be denied, that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 15)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 24, 2022

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