ECHOLS v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TAMMY ECHOLS, )

)

Plaintiff, )

)

v. ) 1:22CV480

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Tammy Echols, brought this action pursuant to 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 claim for Disability Insurance

Benefits (“DIB”). (Docket Entry 1.) Defendant has filed the

certified administrative record (Docket Entry 5 (cited herein as

“Tr. __”)), and both parties have moved for judgment (Docket

Entries 9, 13; see also Docket Entry 10 (Plaintiff’s Memorandum);

Docket Entry 12 (Defendant’s Brief)). For the reasons that follow,

the Court should remand this matter for further administrative

proceedings.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 482-91), alleging a disability

onset date of November 8, 2017 (see Tr. 482, 485). Upon denial of

that application initially (Tr. 245-60, 313-21) and on

reconsideration (Tr. 261-76, 323-30), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 331-32).

Plaintiff, her attorney, and a vocational expert (“VE”) attended

the hearing. (Tr. 212-44.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 277-94.)

The Appeals Council thereafter granted Plaintiff’s request for

review (Tr. 300-05, 389-92, 606-10), and remanded the matter back

to the ALJ to “[e]valuate [Plaintiff]’s headache condition to

determine its severity and impact, if any[,] on [Plaintiff]’s

ability to perform work-related activities in accordance with

Social Security Ruling 19-4p[, Titles II and XVI: Evaluating Cases

Involving Primary Headache Disorders, 2019 WL 4169635 (Aug. 26,

2019) (‘SSR 19-4p’)]” (Tr. 302).

The ALJ convened a new hearing, attended by Plaintiff, her

attorney, and a VE. (Tr. 181-211.) The ALJ thereafter issued a

decision deeming Plaintiff not disabled under the Act (Tr. 15-38),

and Plaintiff requested review of that decision with the Appeals

Council (Tr. 462-64, 622-31). The Appeals Council denied review

(Tr. 1-7), thereby making the ALJ’s ruling the Commissioner’s final

decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2022.

2

2. [Plaintiff] has not engaged in substantial gainful

activity since November 8, 2017, the alleged onset date.

3. [Plaintiff] has the following severe impairments:

spine disorder; dysfunction of major joints; chronic pain

syndrome; and headaches.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

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 . . . . In an eight-hour

workday, she can sit for six hours and stand as well as

walk for three hours. With the use of the left upper

extremity, she can frequently push; pull; feel; and reach

overhead and all other directions. Additionally, she can

frequently crouch and occasionally stoop. However, she

can never crawl or climb ramps and stairs.

. . .

6. [Plaintiff] is capable of performing past relevant

work as a Medical Analyst and Medical Intake. 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 November 8, 2017, through

the date of this decision.

(Tr. 20-37 (bold font and internal parenthetical citations

omitted).)

3

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 . . . review of [such a] decision . . . is extremely limited.”

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

those limitations, the Court should remand this case for further

administrative proceedings.

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, “a

reviewing 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 brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

4

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 Social Security 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 disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the 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.

5

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

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

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s 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

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).2 A finding adverse to the

claimant at any of several points in the SEP forecloses an award

1 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).

2 “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

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

6

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

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 [RFC].” Id. at 179.3 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. 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

3 “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.

7

both [the 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 government 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 567.4

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ’s failure to properly account for the work-

related limitations that would result from [Plaintiff]’s headache

disorder in the RFC is harmful error” (Docket Entry 10 at 5 (bold

font and single-spacing omitted)); and

2) “[t]he new and material evidence in [Plaintiff]’s claim

supports a conclusion that remand for further consideration is

appropriate” (id. at 18 (bold font and single-spacing omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 12 at 10-22.)

4 A claimant thus can qualify as disabled 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

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

1. Evaluation of Headaches

In Plaintiff’s first issue on review, she maintains that

“[t]he ALJ’s failure to properly account for the work-related

limitations that would result from [Plaintiff]’s headache disorder

in the RFC is harmful error.” (Docket Entry 10 at 5 (bold font and

single-spacing omitted) .) More specifically, Plaintiff contends

that “the ALJ faill[ed] to clearly identify what impact

[Plaintiff’s] headaches, and accompanying symptoms and medication

side effects, [] ha[d] on her ability to perform work-related

activities and account for them in the RFC as the ALJ was directed

to do in the [Appeals Council’s] remand order.” (Id. at 6.)° In

that regard, Plaintiff notes that “there is no appreciable

difference between the ALJ’s RFC conclusion in [her first decision]

in August 2020 and her RFC conclusion in [her post-remand decision]

in October 2021.” (Id.; see also id. at 6-7 (comparing language of

2020 and 2021 RFCs (citing Tr. 29, 288)).) In Plaintiff’s view,

“the frequency of her headaches, the related symptoms including the

medication side effects of fatigue and drowsiness she experience □□□

would [have], at a minimum, result[ed] in off-task behaviors, a

° Plaintiff additionally argues “that the ALJ’s failure to perform the

function-by-function assessment and provide a ‘narrative discussion describing

how the evidence supports’ the ALJ’s conclusions as required by [Social Security

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

Functional Capacity in Initial Claims, 1996 WL 374184 (July 2, 1996) (‘SSR 96-

8p’)] is error.” (Docket Entry 10 at 13-14 (quoting SSR 96-8p, 1996 WL 374184,

at *7); see also id. at 14-15 (citing, inter alia, Thomas v. Berryhill, 916 F.3d

307, 311 (4th Cir. 2019), Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018),

Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016), and Mascio v. Colvin, 780

F.3d 632, 636 (4th Cir. 2015)).)

need for unscheduled work breaks and unscheduled absenteeism at a

frequency that would [have] preclude[d] competitive work[, which

wa]s consistent with her testimony and other reports in the

record.” (Id. at 8; see also id. at 8-10 (detailing her subjective

statements and evidence she believes supported the inclusion of

work-preclusive RFC restrictions (citing Tr. 191-92, 194-95, 198-

99, 201, 223-24, 229-31, 545, 547, 551, 564, 569, 582, 851, 859,

893, 915, 928-29, 937, 943, 1027-28, 1287, 1435-36, 1454-55, 1458-

61)).) Plaintiff further contests the sufficiency of the ALJ’s

explanation for rejecting Plaintiff’s assertion that her headaches

would cause her to miss at least one day of work per week. (See

id. at 10-13.) For the reasons explained more fully below,

Plaintiff’s contentions have merit and warrant remand.

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

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

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

10

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.” SSR 96-8p, 1996

WL 374184, at *1.

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, the

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

would prove futile in cases where the ALJ does not discuss

functions that are irrelevant or uncontested,” id. at 636 (internal

quotation marks omitted), but that “‘remand may be appropriate

where an ALJ fails to assess a claimant’s capacity to perform

11

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, although the Court should find that the ALJ both complied

with the Appeals Council’s remand order and conducted the proper

function-by-function analysis, the ALJ’s evaluation of Plaintiff’s

headache disorder nonetheless warrants remand, because the ALJ’s

decision fails to supply the necessary “accurate and logical

bridge,” Woods, 888 F.3d at 694 (internal quotation marks omitted),

between the evidence and her findings that Plaintiff’s headache

disorder (A) qualified as a severe impairment at step two of the

SEP (see Tr. 20), but (B) would not cause Plaintiff to miss at

least one day of work per week (see Tr. 29, 35).

With regard to Plaintiff’s headache disorder, the ALJ provided

the following analysis:

Notably, MRI imaging of the cervical spine from October

28, 2020, showed mild non-compressive disc bulge and

right-sided facet arthritis, which was assessed as a

possible cause or [Sic] regional discomfort - rather than

radiating discomfort. Repeat MRI imaging of the head was

also performed on October 28, 2020. The clinical

impression did not show any appreciable change from the

July of 2018 study that was performed over three years

[sic] earlier.

Despite the imaging findings, [Plaintiff] reported that

she had experienced thirty headache days in the month

preceding the appointment on April 21, 2021. While this

was a noted increase from her report at an earlier visit

and the in file headache log, she subjectively described

her ability to function with her medication as

12

‘fair/average’ despite intermittent drowsiness as a

medication side effect. Overall, her statement of

function on April 21, 2021 is consistent with improvement

because she previously described her ability to function

as “not so good” on January 4, 2021.

The [ALJ] also notes that upon inquiry during the August

25, 2021 hearing [Plaintiff] testified that the frequency

of her headaches had increased since her initial accident

in November of 2017. Notably, she also expressly stated

that prior to worsening the “medication could keep it

under control [because] if it start[ed] coming on and

[she] t[ook] the medication it would go away with the

exception of the severe ones.” She went on to state that

the medications were not as effective. With the addition

of Topiramate, [Plaintiff] stated that her headaches did

not resolve but instead made her feel sleepy though she

was reportedly unsure how long she slept during the day.

While [Plaintiff] testified that she experienced

significant difficulties in her day-to-day activities and

stated that she relied on her husband and daughter for

assistance with self-care, driving, and chores due to

exertional, postural, and manipulative limitations, her

testimony was not forthcoming regarding the care that she

provided for her twenty-month-old grandchild - which she

readily reported to her provider the previous month.

[The “PHYSICAL Residual Function Capacity Medical Source

Statement” dated April 12, 2021 by Ayeshia C. Powell, NP,

(“Nurse Powell”) and Dr. Kofi Doonquah] vaguely refers to

the proposed frequency of the unscheduled breaks and does

not outline a basis for the assessed limitations in off-

task behavior and absenteeism beyond general [sic] noting

that the conclusion was reached based on [Plaintiff]’s

history, medical file, progress notes, physical

examinations, and imaging. Thus, the April 21, 2021

opinion is minimally persuasive.

Based on the foregoing, the [ALJ] finds [Plaintiff] has

the above [RFC] assessment, which is supported by the

record. The [RFC] restriction to light exertional tasks

with left upper extremity limitations accounts for

[Plaintiff]’s headaches and related symptoms. . . . In

making this finding, the [ALJ] considered SSR 19-4p as

13

well as the hypothetical limitations proposed by

[Plaintiff]’s representative during the hearing. On the

basis of [Plaintiff]’s January 4, 2021 assertion that she

experienced headaches greater than fifteen days in a

thirty-day period and her hearing testimony, her

representative asserted that [Plaintiff] would require

unscheduled absences at least one day per week, which

would include times where she would need to leave early,

arrive late, or miss an entire day of work, secondary to

fifteen or more “severe” headache days in a thirty-day

period. However, SSR 19-4p expressly states that _a

finding of disability will not be ‘based on a _person’s

statement of symptoms alone.’ Nevertheless, the [ALJ]

fully considered [Plaintiff]’s longitudinal history of

treatment engagement for headaches and reports of pain.

By [Plaintiff]’s own testimony, she had not experienced

fifteen “severe” headache days consistently dating back

to her alleged onset date of disability. In fact, she

testified that previously her medication “could keep [the

headaches] under control [because] if it start[ed] coming

on and she took the medication it would go away with the

exception of the severe ones.” However, as of the date

of the hearing, she stated that she “just ha[d] headaches

regardless of what.” Notably, [Plaintiff]’s purportedly

contemporaneous headache log from September of 2020

through October of 2020 did not document daily headaches

and expressly indicated that her symptoms were “mild” on

at least four days and only required her to remain in bed

“all day” on one occasion. Furthermore, on October 28,

2020, [Plaintiff] underwent an MRI of the cervical spine

and the findings revealed mild findings. Furthermore,

MRI imaging of the head also from October 28, 2020 did

not show any appreciable change from July of 2018.

Later, on July 1, 2021, [Plaintiff] reported that she had

been caring for her twenty-month-old grandson despite her

difficulties. Overall, the totality of the evidence does

not support a finding that the severity and frequency of

the headaches as well as medication side effects would

result in unscheduled absences at least one day per week.

(Tr. 32-35 (emphasis added) (internal parenthetical citations

omitted) .)

As the above-quoted language makes clear, the ALJ did evaluate

the impact of Plaintiff’s headache disorder in accordance with the

14

Appeals Council’s remand order and on a function-by-function basis.

The ALJ explicitly noted that, to account for Plaintiff’s

headaches, the RFC included limitations on lifting, carrying,

pushing, pulling, reaching, and feeling (see Tr. 35), but did not

include absence from work at least once per week (see Tr. 34-36).

Thus, the question before the Court narrows to whether the ALJ

supported those findings with substantial evidence. For the

reasons that follow, the Court should find that the ALJ did not.

Plaintiff first faults the ALJ for “dismiss[ing] the impact of

[Plaintiff’s] headaches . . . because . . . SSR 19-4p ‘expressly

states that a finding of disability will not be “based on a

person’s statement of symptoms alone.”’” (Docket Entry 10 at 11

(quoting Tr. 35 (in turn quoting SSR 19-4p, 2019 WL 4169635, at

*2)).) Plaintiff notes that the quoted language in SSR 19-4p cites

to 20 C.F.R. § 404.1529 (see id. (citing SSR 19-4p, 2019 WL

4169635, at *2 n.10)) which, in turn, “sets forth a two-step

framework for evaluating a claimant’s symptoms” (id.), as well as

that “[t]he ALJ concluded earlier in the decision that

[Plaintiff’s] headaches were a severe impairment that could

reasonably be expected to produce the pain and other symptoms

alleged” (id. at 11-12 (citing Tr. 30)).

As Plaintiff correctly observes, because the ALJ had already

made the part one finding under Section 404.1529 in Plaintiff’s

favor (see Tr. 30), the ALJ had thereby found the existence of

15

objective medical evidence of a headache disorder that could

reasonably cause the pain and other symptoms alleged by Plaintiff

and thus the ALJ would not have based any finding regarding the

disabling effects of Plaintiff’s headaches on her subjective

statements alone. In Arakas v. Commissioner of Soc. Sec. Admin.,

983 F.3d 83 (4th Cir. 2020), the United States Court of Appeals for

the Fourth Circuit “reiterate[d] the long-standing law in [that

Clircuit that disability claimants are entitled to rely exclusively

on subjective evidence to prove the severity, persistence, and

limiting effects of their symptoms,” Arakas, 983 F.3d at 98

(emphasis added). In other words, under the appropriate

circumstances, an ALJ may choose to rely exclusively on a

claimant’s subjective symptom reports to find disabling symptoms.°

Accordingly, to the extent the ALJ intended to convey that SSR 19-

barred her from basing the part two determination regarding the

intensity, persistence, and limiting effects of Plaintiff’s

headache symptoms on her subjective statements alone, the ALJ

erred.

8 Arakas, however, does not compel ALJs to consider only subjective

evidence, as such a requirement would conflict with both the Act and its

implementing regulations, which plainly require ALJs to consider a variety of

factors, including objective medical evidence, in evaluating the intensity,

persistence, and limiting effects of symptoms. See 42 U.S.C. § 423(d) (5) (A)

(“Objective medical evidence of pain .. . established by medically acceptable

clinical or laboratory techniques (for example, deteriorating nerve or muscle

tissue) must be considered in reaching a conclusion as to whether [an] individual

is under a disability.” (emphasis added)); 20 C.F.R. § 404.1529(c) (directing

ALJs to assess a claimant’s medical history, medical signs and laboratory

findings, daily activities, testimony about nature and location of pain,

medication and other treatment used to alleviate pain, along with medical

opinions from examining and non-examining sources).

16

Next, Plaintiff asserts “that the ‘inconsistencies’ identified

by the ALJ are not supported on closer review.” (Docket Entry 10

at 12.) More specifically, Plaintiff points out that, “in July

2021[, she] did report caring for her 20 month old grandson at [a]

doctor visit,” but that “the ALJ fail[ed] to note that [Plaintiff]

reported that the child’s mother left town and that ‘in

[Plaintiff’s] physical condition[,]’ caring for her grandson had

been very difficult.” (Id. (citing Tr. 35, and quoting Tr. 1460).)

Plaintiff further observes that “[h]er treatment

provider . . . wrote a letter to support [Plaintiff] with

assistance with childcare in the daytime while her husband [wa]s at

work.” (Id. (citing Tr. 1460-61).) According to Plaintiff,

“th[at] evidence, when considered in context, reveals that

[Plaintiff] was not able to care for her 20-month old grandson

independently as a result of her combined impairments.” (Id.; see

also id. (citing Woods, 888 F.3d at 694-95, for proposition that

“[a]n ALJ may not consider the type of activities the claimant can

perform without also considering the extent to which she can

perform them”).)

On balance, the Court should find that, in evaluating the

severity of Plaintiff’s symptoms, the ALJ placed too much

significance on the presence of Plaintiff’s grandson in her home

and failed to consider the qualifying facts surrounding his care by

Plaintiff. Although the ALJ correctly observed that Plaintiff did

17

not mention her grandson’s presence in her home at the hearing on

August 25, 2021 (see Tr. 32 (finding Plaintiff’s “testimony [] not

forthcoming regarding the care that she provided for her

twenty-month-old grandchild – which she readily reported to her

provider the previous month”); see also Tr. 186 (reflecting

Plaintiff’s response “[m]y husband[]” to ALJ’s question “[w]ho

live[d] with [her]?”)), the ALJ neglected to acknowledge that 1)

Plaintiff apparently did not choose to take custody and care of her

grandson, as the record reflects that the child’s mother abandoned

him in Plaintiff’s home (see Tr. 1460); 2) Plaintiff described the

unexpected burden of caring for the child with Plaintiff’s physical

limitations as “difficult” to her neurology providers (id.); and 3)

Plaintiff procured a letter from her neurology providers to assist

her with obtaining daytime child care for the child (see Tr.

1461).7 Viewed in the proper context, this involuntary,

approximately three-month time period that Plaintiff’s grandson

required her care during the daytime while her husband worked, and

which caused her “difficult[y]” (Tr. 1460), reasonably could not

have significantly countered Plaintiff’s “testi[mony] that she

experienced significant difficulties in her day-to-day activities

and [] that she relied on her husband and daughter for assistance

7 Although the ALJ did not review subsequent records from Plaintiff’s

neurologist that she submitted to the Appeals Council, those records reflect

that, by September 23, 2021, Plaintiff had placed her grandson in daycare, “which

ha[d] relieved a lot of stress off of her.” (Tr. 148.)

18

with self-care, driving, and chores due to exertional, postural,

and manipulative limitations” (Tr. 32).

Additionally, Plaintiff challenges the salience of the ALJ’s

observation that Plaintiff “admitt[ed] in her ‘own testimony’ that

[she] had not experienced fifteen severe headache days consistently

dating back to her [alleged onset date of disability].” (Docket

Entry 10 at 12 (quoting Tr. 35).) Plaintiff contends that her

“headache condition has progressively worsened over the course of

her claim” and thus that her “testimony that her headaches have

worsened over time – and become less responsive to medication –

appears to be consistent with the overall treatment records” (id.).

The ALJ pointed out that, at the hearing, Plaintiff’s attorney

relied on Plaintiff’s August 25, 2021, hearing testimony and her

“January 4, 2021 assertion that she experienced headaches greater

than fifteen days in a thirty-day period . . . [to] assert[] that

[Plaintiff] would require unscheduled absences at least one day per

week.” (Tr. 35 (referencing Tr. 210, 1435).) The ALJ further

noted that Plaintiff testified that “previously her medication

‘could keep [the headaches] under control [because] if it start[ed]

coming on and she took the medication it would go away with the

exception of the severe ones.’” (Id. (purporting to quote Tr.

194).) The ALJ thus observed that, “[b]y [Plaintiff]’s own

testimony, she had not experienced fifteen ‘severe’ headache days

19

consistently dating back to her alleged onset date of disability”

(id.).

As an initial matter, the ALJ construed Plaintiff’s testimony

regarding the progression of her headaches out of context. The

following exchange took place between Plaintiff and her attorney at

the hearing:

Q . . . [I]n going back to, you know, when you had

your accident, when you stopped working in November

of 2017, not quite four years ago, in terms of the

severe headaches over the last four

years, . . . has the frequency of the severe

headaches been about the same, have they gotten

more frequent, have they gotten less frequent over

the last four years, or what?

A More frequent. Because I used to could go like

four days. It would be like maybe four times a

week. Now, I’m having ‘em every day now.

Q Okay. Now you’re having some kind of headache

every day. Whereas, used to, you could go several

days without any headache, is that what you’re

saying?

A Without feeling severe headaches. It wasn’t where

you could -

Q Okay.

A You know, let me put it like this. The medication

could keep it under control. If it start coming

on, and I take the medication, it will go away

except if it’s a_ severe one. But now I just have

headaches [INAUDIBLE]. They just stay.

Q Okay. So, the medications are not as effective as

they used to be.

A Yes.

20

(Tr. 193-94 (emphasis added).) Fairly read, Plaintiff’s testimony

reflects that, even before the frequency of her severe headaches

increased to a daily occurrence, she experienced up to four severe

headaches per week that medication could not fully control, which

could translate to more than 15 severe headache days per month.®

Moreover, Plaintiff complained of headaches to her

orthopedists in February 2018 (see Tr. 859), July 2018 (see Tr.

850), and July 2019 (see Tr. 893 (resulting in referral to headache

specialist)), reported “continuous[]” left-sided headaches rated

eight out of ten on the pain scale with photophobia to consultative

examiner Dr. Steven Burgess on January 28, 2019 (Tr. 824), alleged

between 10 and 18 severe headaches and between 10 and 18 moderate

headaches in a four-week period during all four of her visits to

Dr. Marshall C. Freeman at the Headache and Wellness Center from

August to October 2019 (see Tr. 915, 923, 930, 937), as well as

asserted that she experienced no days in a 30-day period without a

headache to her neurology provider in November 2020 (see Tr. 1439).

Because Plaintiff’s testimony and the record evidence reflect that

she reported frequent, severe headaches throughout a majority of

the relevant period in this case, the ALJ’s observation that

Plaintiff did not allege having 15 severe headaches days per month

dating back to her onset date (see Tr. 35) does not provide a

® Other aspects of Plaintiff’s testimony indicating that, at times,

“several days” (Tr. 194) could go by “without feeling severe headaches” (id.)

would still translate into severe headaches at least eight days a month.

21

sufficient rationale to reject Plaintiff’s assertion that her

headaches would cause her to miss at least one day of work per

week.

Plaintiff next contests the ALJ’s reliance on Plaintiff’s

“headache log” to discount her subjective complaints of disabling

headaches. (Docket Entry 10 at 13 (referencing Tr. 35, and citing

Tr. 1287).) The ALJ deemed “[n]otabl[e]” that Plaintiff’s

“purportedly contemporaneous headache log from September of 2020

through October of 2020 did not document daily headaches and

expressly indicated that her symptoms were ‘mild’ on at least four

days and only required her to remain in bed ‘all day’ on one

occasion.” (Tr. 35.) As Plaintiff argues, however, her “headache

log . . . only covered a period of 19 days” and, “[w]ithin that

period[, she] noted 11 moderate to severe headache days including

at least [one] for which she stayed in bed all day, [four] mild

headaches and [four] days that appear to have been free of

headaches.” (Docket Entry 10 at 13 (emphasis added) (citing Tr.

1287).) Given that the headache log covered only 19 days of a

relevant period spanning nearly four years, as well as the fact

that Plaintiff testified that her headaches had increased in

frequency over time (see Tr. 194), the log’s contents, documenting

15 out of 19 days with some degree of headache in the fall of 2020,

did not provide a sound basis for the ALJ to reject Plaintiff’s

22

assertion that her headaches would cause her to miss work at least

once per week.

Plaintiff also objects to the ALJ’s reliance on “mild cervical

MRI findings and stable imaging of her brain as evidence

[Plaintiff’s] headaches [we]re not as severe as alleged.” (Docket

Entry 10 at 13 (referencing Tr. 35, 1391-92, 1399-1400).) In that

regard, Plaintiff points out that “SSR 19-4p . . . specifically

notes that imaging scans are used to ‘rule out other possible

causes of headaches . . . meaning that an unremarkable MRI is

consistent with a primary headache disorder diagnosis’ and that

imaging ‘may be useful in ruling out other possible causes of

headache symptoms.’” (Id. (quoting SSR 19-4p, 2019 WL 4169635, at

*4).)

In this case, the record does not establish whether Plaintiff

has a primary headache disorder, i.e., “headaches [that] occur

independently and are not caused by another medical condition,” SSR

19-4p, 2019 WL 4169635, at *3, or a secondary headache disorder,

i.e., “headaches [that] are symptoms of another medical condition

such as fever, infection, high blood pressure, stroke, or tumors,”

id. Plaintiff’s providers have questioned whether her cervical

disc disease caused and/or contributed to her headaches (see Tr.

1028), as well as whether her on-the-job fall onto her left side

caused “some type of neuralgia following a physically traumatic

insult” (Tr. 1460; see also id. (deeming it “still unclear what

23

[wa]s causing [Plaintiff’s] issues”)). In light of that

uncertainty as to the cause of Plaintiff’s headaches, her cervical

spine MRI (which showed disc bulges and facet arthritis (see Tr.

1392)) and head MRI (which revealed numerous foci of T2 and FLAIR

signal in Plaintiff’s white matter leading to a differential

diagnosis of small vessel disease versus demyelinating disease

versus migraine versus vasculitis (see Tr. 1400)) did not provide

a compelling ground for the ALJ to discount the severity of

Plaintiff’s headaches.

In short, the ALJ complied with the Appeals Council’s remand

order and conducted a function-by-function analysis of the impact

of Plaintiff’s headaches on her ability to function, but did not

support that analysis with substantial evidence, warranting remand.

2. New and Material Evidence

In Plaintiff’s second and final assignment of error, she

contends that “[t]he new and material evidence in [her] claim

supports a conclusion that remand for further consideration is

appropriate.” (Docket Entry 10 at 18 (bold font and single-

spacing omitted).) In particular, Plaintiff asserts that “a

diagnosis of multiple sclerosis [(‘MS’)] was confirmed in December

2021” (id. at 19 (citing Tr. 113-15)), and that “[t]he basis for

her diagnosis appear[ed] to be MRI imaging of her brain on December

24

14, 2021” (id. (referencing Tr. 121))9 and “exam findings including

generalized weakness, increased muscle tone of the cervical

paraspinal muscles and upper trapezius muscles, reduced motor

strength at 4/5 of the left lower extremity, diminished upper

extremity reflexes and brisk lower extremity reflexes” (id. (citing

Tr. 115) (collectively “New MS Evidence”). According to Plaintiff,

“[r]emand for new and material evidence is appropriate where four

prerequisites are met[:] . . . (1) ‘[the evidence] must be relevant

to the determination of disability at the time the application was

first filed and not merely cumulative[; ] (2) [the evidence must

be] material to the extent that the [Commissioner]’s decision might

reasonably have been different had the new evidence been before

her[’; (3) Plaintiff must make] a showing of ‘good cause for [her]

failure to submit the evidence when the claim was before the

[Commissioner’;] . . . and [(4) Plaintiff] must present to the

remanding court at least a general showing of the nature of the new

evidence.” (Id. at 18 (quoting Borders v. Heckler, 777 F.2d 954,

955 (4th Cir. 1985)) (internal quotation marks and citations

omitted).) In Plaintiff’s view, “the new evidence satisfies all

four of the requirements necessary to establish that it is new and

material evidence (id. at 19), and that “[r]emand for further

consideration [of the new evidence] by the ALJ is appropriate” (id.

9 Plaintiff cited transcript page 122 as containing the MRI of her head

(see Docket Entry 10 at 19 (citing Tr. 122)), but that report actually appears

at page 121 (see Tr. 121).

25

at 21). For the reasons more fully explained below, the Court

should remand this matter for the ALJ to consider the New MS

Evidence under sentence four of 42 U.S.C. § 405(g).

As an initial matter, the parties appear to disagree whether

sentence four or six of Section 405(g) constitutes the proper

authority under which to evaluate the New MS Evidence. (Compare

id. at 18 (arguing that New MS Evidence satisfies the four

requirements under Borders for sentence six remand), with Docket

Entry 12 at 19 (contending that, “where evidence is tendered only

to the Appeals Council, the [C]ourt reviews the full record,

including the Appeals Council submission, to test the ALJ's

decision for substantial evidence,” which represents standard under

sentence four of Section 405(g) (citing Meyer v. Astrue, 662 F.3d

700, 704 (4th Cir. 2011), and Wilkins v. Secretary, Dep’t of Health

& Human Servs., 953 F.2d 93, 96 (4th Cir. 1991))).) The choice

between those two types of remands turns on whether the Appeals

Council has already considered the new evidence and incorporated

that evidence into the record before the Court. Where the Appeals

Council has considered and incorporated the new evidence, the Court

must address the new evidence under sentence four of Section

405(g). See Meyer, 662 F.3d at 704 (noting that court would apply

sentence four standard and “review the record as a whole including

any new evidence that the Appeals Council specifically incorporated

. . into the administrative record” (emphasis added) (internal

26

quotation marks omitted)); Wilkins, 953 F.2d at 96 (“The Appeals

Council specifically incorporated [the treating psychiatrist]’s

letter . . . into the administrative record. Thus, we must review

the record as a whole, including the new evidence, in order to

determine whether substantial evidence supports the

[Commissioner]’s findings.” (emphasis added)). In contrast, if the

Appeals Council declined to consider and to incorporate the new

evidence into the record, the Court must evaluate the new evidence

under sentence six of Section 405(g). See Shalala v. Schaefer, 509

U.S. 292, 297 n.2 (1993) (“Sentence-six remands may be ordered

. . . where new, material evidence is adduced that was for good

cause not presented before the agency.” (citations omitted));

Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012) (“Evidence

that has been rejected by the Appeals Council cannot be considered

[under sentence four] to reevaluate the ALJ’s factual findings.”).

As described more fully below, the circumstances surrounding the

Appeals Council’s handling of the New MS Evidence favors a finding

that the Appeals Council considered and incorporated that evidence

into the record and thus that the Court should evaluate that

evidence under the sentence four framework.

Plaintiff’s counsel requested review with the Appeals Council

on December 17, 2021 (Tr. 462-64) and, on December 20, 2021, the

Appeals Council sent Plaintiff’s counsel a letter acknowledging the

request for review and allowing Plaintiff 25 days to submit

27

“additional evidence” that “is new, material, and relates to the

period on or before the date of the hearing decision.” (Tr. 10.)

Additionally, the Appeals Council advised Plaintiff’s counsel that

she “must also show there is a reasonable probability that the

additional evidence would change the outcome of the ([ALJ’s]

decision,” as well as “good cause for why [Plaintiff] missed

informing [the SSA] about or submitting it earlier.” (Id.)*°

Thereafter, Plaintiff’s counsel submitted the New MS Evidence to

the Appeals Council (see Tr. 112-15, 121), along with arguments

that the evidence gualified as “new and material” and “require[d]

remand” (Tr. 628 (bold font omitted)).*!

The New MS Evidence consists of an MRI of Plaintiff’s head on

December 14, 2021, which showed:

[s]ecattered foci of T2 hyperintensity within the white

matter of the cerebral hemisphere including deep, juxta

cortical and periventricular white matter. Several small

foci are new since prior MRI in the bilateral frontal

lobes. No enhancing lesion identified. No posterior

fossa or callosal lesion. Differential diagnosis

include[s] demyelinating disease, chronic

microangiopathic changes, vasculitis, autoimmune and

other inflammatory/infectious processes.

'° On February 8, 2022, the Appeals Council granted Plaintiff’s request for

another 30 days to submit arguments or new evidence. (See Tr. 8-9, 624.)

'l The record does not divulge the date on which Plaintiff’s counsel sent

the new evidence to the Appeals Council, but she must have sent it between the

dates of the new evidence (December 14, 2021 (see Tr. 121) and December 16, 2021

(see Tr. 112-15)), and the date of the Appeals Council’s decision denying review

(April 27, 2022 (see Tr. 1)). Additionally, Plaintiff’s counsel sent in other

new evidence to the Appeals Council (see Tr. 51-111, 117-120, 122-80), which the

Appeals Council declined to exhibit (see Tr. 2, 5-6). Plaintiff did not include

such other evidence in her arguments before this Court that new evidence requires

remand. (See Docket Entry 10 at 18-21.) As such, the Court should not consider

such other new evidence further.

28

(Tr. 121 (emphasis added).) The New MS Evidence also includes a

post-MRI visit to Highland Neurology on December 16, 2021 (see Tr.

112-15), at which Nurse Powell documented “increased muscle tone

[left greater than right] to [Plaintiff’s] cervical paraspinal

muscles and upper trapezius,” “4/5” strength in Plaintiff’s hip

flexion, biceps, triceps, and dorsiflexion on the left,

“diminished” deep tendon reflexes in Plaintiff’s upper extremities

and “pathologically brisk” deep tendon reflexes in Plaintiff’s

lower extremities. (Tr. 115.) Nurse Powell offered the following

analysis of the MRI of Plaintiff’s head:

I reviewed MRI brain images and compared this to the one

last year with Dr. Doonquah who comments that there are

no active lesions however [Plaintiff’s] lesion burden is

great and may have increased from the last exam however

there are so many lesions it is difficult to tell. The

conclusion is this is likely MS and should be treated.

I called [Plaintiff] after her visit once a plan was

devised. I spoke to her about MS and the goals of

treatment to reduce further disability. She comments

that she is 50 [years old] and dependent on using a cane

to ambulate and the chronic pain, headaches, decreased

mobility as well as balance issues have taken a toll on

her quality of life. She says that her sister has MS and

the prospects scare her so she is ready for treatment. []

All questions/concerns were addressed. It was

recommended by the physician that [Plaintiff] try either

tecfidera or Kesempta.

(Tr. 114 (emphasis added).)12

The Appeals Council denied Plaintiff’s request for review on

April 27, 2022, remarking as follows:

12 Plaintiff reports “that she was awarded [DIB] with an onset date of

December 14, 2021[,] consistent with the confirmation of her [MS] diagnosis on

a subsequent application for benefits.” (Docket Entry 10 at 20 (citing Docket

Entry 10-2).)

29

[Plaintiff] submitted evidence from Highland Neurology,

November 18, 2021 through December 17, 2021, 55 pages and

Cone Health, December 14, 2021, 26 pages. The ALJ

decided your case through October 20, 2021. This

additional evidence does not relate to the period at

issue. Therefore, it does not affect the decision about

whether you were disabled beginning on or before October

20, 2021.

(Tr. 2 (emphasis added).) Consistent with the language emphasized

above, the Appeals Council noted that it “ha[d] received additional

evidence which it [wa]s making part of the record,” that

“consist[ed] of . . . [the rlequest for review from [Plaintiff’s

counsel] received December 17, 2021,” a “[rlepresentative brief

from [Plaintiff’s counsel] dated December 17, 2021,” a

“[rlepresentative brief from [Plaintiff’s counsel] dated January 8,

2022,” and a “[rlepresentative brief from [Plaintiff’s counsel]

dated March 10, 2022,” which the Appeals Council exhibited as

“Exhibit B30,” “Exhibit 17E,” “Exhibit 18E,” and “Exhibit 19E,”

respectively (Tr. 5 (emphasis added); see also Tr. 462-64 (Ex. 30B

- request for review), 622-23 (Ex. 17E - brief), 624-27 (Ex. 18E -

brief), 624-27 (Ex. 19E - brief)). Although the Appeals Council

did not include the New MS Evidence on the list of items it “ma[de]

part of the record” (Tr. 5), it appears in the administrative

transcript before this Court immediately following the Appeals

Council’s decision denying review and bears transcript page numbers

112 through 115 and 122 (see Tr. 112-15, 122), consistent with

administrative guidance, see Hearings, Appeals, and Litigation Law

Manual (“HALLEX”), § I1-3-5-20 (“Evaluation of Additional Evidence”

30

(Dec. 16, 2020) (providing that Appeals Council “will evaluate all

additional evidence it receives, but will only mark as an exhibit

and make a part of the official record additional evidence it

determines meets the requirements of 20 [C.F.R. §] 404.970(a) (5)-

(o),” but that such evidence “will be included in the certified

administrative record if the case is appealed to Federal court”

(emphasis added)).

That chain of events presents the Court with two possible

interpretations of the state of the record. On one hand, the Court

could find that the Appeals Council 1) considered the New MS

Evidence by examining it and then finding that it “d[id] not relate

to the period at issue” and “d[id] not affect the decision about

whether [Plaintiff] wlas] disabled beginning on or before October

20, 2021” (Tr. 2), and 2) incorporated the New MS Evidence into the

record by including it in the administrative transcript before this

Court immediately following the decision denying review (see Tr.

112-15, 122), such that Section 405(g)’s sentence four should

apply. On the other hand, the Court could view the Appeals

Council’s refusal to “mak[{e the New MS Evidence] part of the

record” (Tr. 5) as an indication that the Appeals Council neither

considered nor incorporated the New MS Evidence into the record,

thereby making sentence six the appropriate framework for decision.

See Patricia C. v. Berryhill, No. 4:17CV58, 2019 WL 254981, at *2

& n.3 (W.D. Va. Jan. 2, 2019) (unpublished) (observing that, where

31

Appeals Council found new evidence “did not show a reasonable

probability that it would change the outcome of the [ALJ’s]

decision” and “did not consider and exhibit th[e new] evidence,”

but copy of that evidence appeared in administrative transcript

before the court, “[t]he Commissioner’s practice of mixing into the

certified copy of the record evidence that her agency has expressly

refused to ‘consider and exhibit[]’ present[ed] an awkward

procedural posture for judicial review” and, because the court

“might [in the future] have to choose which part of § 405(g)’s text

— sentence four or sentence six — governs th[e c]ourt’s authority

to review the Commissioner’s final decision[,] . . . the [c]ourt

welcome[d] the parties’ input on how best to proceed under § 405(g)

when the Commissioner files a certified transcript of the record of

the underlying administrative proceedings that contains evidence

the Appeals Council has explicitly declined to accept, consider,

and/or incorporate into that record” (internal citations omitted)),

recommendation adopted sub nom. Coleman v. Berryhill, 2019 WL

254672 (W.D. Va. Jan. 17, 2019) (unpublished).

Further complicating matters, the Fourth Circuit has evaluated

cases pursuant to both sentence four and sentence six when

confronted with new evidence first presented to the Appeals

Council. Compare Wiebusch v. Commissioner, Soc. Sec. Admin., No.

20-1590, 2022 WL 2965653, at *2-3 (4th Cir. July 27, 2022)

(unpublished) (reviewing case under sentence four standard where

32

Appeals Council found new evidence consisting of treating physician

questionnaire did not show reasonable probability it would change

outcome of ALJ’s decision but not addressing sentence six or

whether Appeals Council had considered or incorporated new

evidence), with Jackson v. Astrue, 467 F. App’x 214, 218 (4th Cir.

2012) (holding that, where Appeals Council rejected new evidence

because it “d[id] not provide a basis for changing the [ALJ]’s

decision[,] . . . [the court’s] proper disposition is to remand

pursuant to sentence six of § 405(g) which authorizes a remand upon

a showing of new material evidence” (emphasis added)).

District courts within the Fourth Circuit similarly take

different approaches to cases involving new evidence presented to

(but not exhibited by) the Appeals Council. See, e.g., Montoya v.

Kijakazi, No. 1:20CV1157, 2022 WL 562945, at *7 (M.D.N.C. Jan. 11,

2022) (unpublished) (Webster, M.J.) (deciding case under sentence

four framework because “[the p]laintiff appear[ed] to be seeking a

sentence four remand,” where Appeals Council failed to acknowledge

new evidence submitted by the plaintiff and thus that evidence did

not appear in administrative transcript, but also noting that

“analysis and result [] would essentially be the same even if [the

pllaintiff sought a remand pursuant to sentence six” (emphasis

added)), recommendation adopted, 2022 WL 561533 (M.D.N.C. Feb. 24,

2022) (unpublished) (Biggs, J.); Sales v. Saul, No. 1:19CV476, 2020

WL 4735308, at *4 (M.D.N.C. Aug. 14, 2020) (unpublished) (Webster,

33

M.J.) (where “[the p]laintiff submitted additional information to

the Appeals Council . . .[, and t]he Appeals Council determined

that such evidence d[id] not show a reasonable probability that it

would change the outcome of the [ALJ’s] decision,” but included the

new evidence in the Court’s administrative transcript, “the Court

conclude[d] that the proper course [ wa]s to remand this matter

[under sentence four of 42 U.S.C. § 405(g)] for further

administrative proceedings.” (internal quotation marks and

citations omitted)), recommendation adopted, slip op. (M.D.N.C.

Sept. 1, 2020) (Eagles, J.); Donald C. v. Saul, No. 5:18CV63, 2019

WL 9056721, at *11 (W.D. Va. Aug. 19, 2019) (unpublished) (finding

that, because Appeals Council concluded that newly submitted

evidence did not raise reasonable probability of changing outcome

of case and “did not consider and exhibit th[at] evidence,” the

plaintiff’s contention regarding the new evidence constitutes “an

argument that the case should be remanded under sentence six of 42

U.S.C. § 405(g) to enable the Commissioner to consider additional

evidence in the first instance” (emphasis added)); Lauder v. Saul,

No. 1:18CV480, 2019 WL 3457706, at *9-10 (M.D.N.C. July 31, 2019)

(unpublished) (Peake, M.J.) (denying remand under sentence four

because “no meaningful possibility [existed] - much less a

reasonable probability - that the additional evidence would change

the outcome of the decision,” even where Appeals Council did not

exhibit new evidence because it “d[id] not relate to the period at

34

issue” but new evidence appeared in administrative transcript),

recommendation adopted, slip op. (M.D.N.C. Aug. 22, 2019) (Eagles,

J.); Johnson v. Acting Comm’r of Soc. Sec. Admin., No. 9:18CV90,

2019 WL 2717860, at *6 n.4 (D.S.C. June 27, 2019) (unpublished)

(“The Appeals Council ultimately decided that . . . it would not

‘consider’ or ‘exhibit’ the evidence because there was not a

reasonable probability it would change the outcome of the

case... . The Appeals Council therefore denied review and would

not consider this new evidence after making a determination that

the medical records provided no basis to change the ALJ’s decision.

Further, the medical records are included in the transcript and

noted as ‘Medical Evidence of Record.’ Accordingly, this remand is

appropriate under sentence four of 42 U.S.C. $ 405(g).”

(underscoring added) (italics in original)); Coleman v. Berryhill,

No. 6:17CV2613, 2019 WL 850902, at *5 (D.S.C. Feb. 22, 2019)

(unpublished) (noting that Appeals Council did not incorporate new

evidence into the record, but finding sentence four remand

appropriate “because it was an error of law [for the Appeals

Council] to not consider and exhibit such evidence”); Hawks v.

Berryhill, No. 1:17CV1021, 2018 WL 6728037, at *5 n.6, *8 n.9

(M.D.N.C. Dec. 21, 2018) (unpublished) (noting that the plaintiff

did not request sentence six remand and could “not argue [for a

sentence four remand based on the fact] that the [new evidence],

when considered as part of the administrative record as a whole,

35

render [ed] the ALJ's decision unsupported by substantial

evidence[,] . . . because . . . the Appeals Council declined to

incorporate the [new evidence] into the administrative record”

(emphasis added)), recommendation adopted, 2019 WL 359999 (M.D.N.C.

Jan. 29, 2019) (unpublished) (Schroeder, C.J.); Jones v. Berryhill,

No. 1:17CV703, 2018 WL 3849914, at *6-7 (M.D.N.C. Aug. 13, 2018)

(unpublished) (denying remand under sentence six where Appeals

Council found new evidence “d[id] not show a reasonable probability

that it would change the outcome of the decision” and “did not

consider and exhibit th[e new] evidence,” and administrative

transcript before the Court did not contain new evidence),

recommendation adopted, slip op. (M.D.N.C. Sept. 4, 2018)

(Schroeder, C.J.); Brown v. Colvin, No. 7:14CV283, 2015 WL 7307320,

at *6 (E.D.N.C. Oct. 27, 2015) (unpublished) (“To the extent that

the lack of formal incorporation of the additional evidence into

the record signifies that it remains outside the record,

notwithstanding its inclusion in the transcript of proceedings,

this evidence is appropriately treated as having been submitted for

the first time to th[e] court and therefore as being subject to

sentence six of 42 U.S.C. § 405(g),” but also finding that

“[rJemand [wa]s [] warranted [under sentence four] if the [new

evidence was] deemed to have become part of the record by virtue of

the Appeals Council’s consideration of [it], even if not formally

36

incorporated into the record” (emphasis added)), recommendation

adopted, 2015 WL 7306453 (E.D.N.C. Nov. 19, 2015) (unpublished).

On balance, three facts before the Court in this case favor

analyzing Plaintiff’s New MS Evidence under the sentence four

framework. First, unlike in Hawks and Jones, the New MS Evidence

appears in the administrative transcript before the Court, albeit

in the “Court Transcript Index” portion rather than the “Exhibits”

portion of the record (see Tr. 112-15, 122). The inclusion of the

New MS Evidence in the Court’s official record of proceedings lends

support to the notion that the Court can consider it as part of a

sentence four analysis. See Harvey v. Berryhill, No. CV 0:18-48,

2019 WL 2062446, at *3-5 (D.S.C. Feb. 25, 2019) (unpublished)

(remanding case under sentence four where Appeals Council found new

evidence “d[id] not relate to the period at issue” but included new

evidence in the court’s administrative transcript), recommendation

adopted sub nom. Harvey v. Commissioner of Soc. Sec. Admin., 2019

WL 1219153 (D.S.C. Mar. 15, 2019) (unpublished); West v. Berryhill,

No. 18CV92, 2019 WL 362259, at *6 (D. Haw. Jan. 29, 2019)

(unpublished) (“The [c]ourt notes that the Appeals Council also

stated that [the new evidence] would not be exhibited. [The new

evidence], however, can be found in the [administrative transcript]

of this case. Unlike other medical evidence, though, [the new

evidence is] not exhibited in the sense that [it] ha[s] been

assigned an exhibit number, but, instead, placed in that part of

37

the [administrative transcript] concerning ‘Documents Related to

Administrative Process Including Transcript of Oral Hearing, if

applicable.’ Nonetheless, as far as this [c]lourt is concerned,

[the new evidence is] part of the certified transcript of record in

this case. As a result, the [c]ourt may remand this case to the

ALJ pursuant to Sentence Four .. . .” (emphasis added) (internal

citations omitted)).'

Second, unlike in Donald C. and Jones, the Appeals Council

here did not explicitly state that it “did not consider”

Plaintiff’s New MS Evidence. (See Tr. 2, 5-6.) The omission of

the “did not consider” language from the Appeals Council’s decision

suggests that it did consider the New MS Evidence in making its

determination that the New MS Evidence did not relate to the period

at issue. See Vahey v. Saul, No. 18CV350, 2019 WL 3763436, at *9

(D. Haw. Aug. 9, 2019) (unpublished) (observing that, in other

cases, “the Appeals Council had stated that it did not ‘consider

and exhibit’ the evidence; whereas, [in the case before the court],

'3 Indeed, some district courts hold that merely submitting evidence to the

Appeals Council, regardless of whether the Appeals Council “considers” or

“exhibits” that evidence, makes that evidence part of the official record and

outside the purview of a sentence six remand. See Burgos v. Kijakazi, No.

8:20CV2497, 2022 WL 843594, at *4 (M.D. Fla. Mar. 22, 2022) (unpublished) (“As

[the pllaintiff submitted the [new evidence] during the administrative

proceedings, and the Appeals Council explicitly addressed those records and found

that they did not .. . relate[] to the period at issue, no basis for remand

under sentence six exists as to the [new evidence].” (emphasis added)); Barbara

H. v. Saul, No. 19 CV 50011, 2020 WL 3469163, at *5 (N.D. Ill. June 25, 2020)

(holding that merely “present[ing]” new evidence to Appeals Council, regardless

of grounds given by Appeals Council for denying review, precludes district court

from ordering sentence six remand).

38

the Appeals Council said only that it did not ‘exhibit’ the

evidence”).

Third, the applicable regulation requires the Appeals Council

to consider new evidence only if the claimant shows “good cause”

for failing to submit the evidence at least five days prior to the

hearing before the ALJ,** and the Appeals Council here did not

expressly find that Plaintiff lacked good cause to submit the New

MS Evidence (see Tr. 2). If the Appeals Council implicitly found

that Plaintiff showed good cause for failing to submit the New MS

Evidence to the ALJ, then Section 404.970 required the Appeals

Council to consider that evidence. See Vahey, 2019 WL 3763436, at

*6 (noting that, “under the new [version of Section 404.970], the

Appeals Council could only ‘consider’ evidence upon a showing of

good cause” and, given that Appeals Council’s “denial letter [wa]s

devoid of any good cause discussion,” the possibility existed that

‘4 The applicable regulation provides, in pertinent part, as follows:

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

(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.

(bo) The Appeals Council will only consider additional evidence under

paragraph (a)(5) of this section if [the claimant] show[s] good

cause for not informing [the Appeals Council] about or submitting

the evidence as described in § 404.935 [which requires claimants to

submit evidence at least five days prior to the ALJ hearing].

20 C.F.R. § 404.970 (2017) (emphasis added).

39

“the Appeals Council implicitly found good cause [and ] considered

the [new] evidence,” thus making the evidence “part of the

record”). Under these factual circumstances, the Court should

analyze the New MS Evidence under the framework of sentence four of

Section 405(g).

“[B]lecause [the Appeals Council] denied review, the decision

of the ALJ became ‘the final decision of the [Commissioner]

Meyer, 662 F.3d at 704 (quoting Wilkins, 953 F.2d at 96). A court

should “uphold the factual findings underpinning the Commissioner’s

final decision ‘if they are supported by substantial evidence and

were reached through application of the correct legal standard.’”

Id. (quoting Craig, 76 F.3d at 589). “In making th{[at]

determination, [the Court] ‘review[s] the record as a whole’

including any new evidence that the Appeals Council ‘specifically

incorporated . . . into the administrative record.’” Id. (quoting

Wilkins, 953 F.2d at 96). Significantly, the Court “review[s] for

substantial evidence the ALJ’s decision, not the Appeals Council’s

denial of [the plaintiff]’s request that the Council review the

ALJ’s decision due to the newly submitted [evidence].” Wiebusch,

2022 WL 2965653, at *2 n.3. For the reasons explained in more

detail below, the Court should find that the New MS Evidence

renders the ALJ’s decision finding Plaintiff not disabled

unsupported by substantial evidence.

40

Most significantly, the ALJ did not find MS even a medically

determinable impairment at step two, let alone a severe impairment

(see Tr. 20-21), and rejected the MS diagnosis opined by a

physician who performed Plaintiff’s lumbar puncture based on the

following rationale:

. . . [O]n October 28, 2020, [Plaintiff] underwent an MRI

of the head. The findings showed multiple foci of

abnormal T2 and FLAIR signal throughout the cerebral

hemispheric white matter, which were non-specific and did

not show any appreciable change since the July of 2018

study.

Nearly two months later, on December 18, 2020, a lumbar

puncture was performed. The post-procedure diagnosis of

[MS] was assessed by Mark Boles, M.D. However, [Nurse]

Powell later indicated that [Plaintiff]’s work-up was

inconclusive with regard to the diagnosis of [MS].

(Tr. 26 (emphasis added) (internal parenthetical citations

omitted).) Thus, the New MS Evidence fills a critical evidentiary

gap in the medical evidence of record by providing a more

definitive diagnosis of MS to explain the abnormal findings on

earlier MRIs of Plaintiff’s head that had previously remained

unexplained (see Tr. 748 (7/25/18 MRI of the brain reflecting

“[m]ultiple small white matter hyperintensities in the subcortical

and deep white matter . . . most consistent with chronic

microvascular ischemia”), 1399-1400 (10/28/20 MRI of the head

showing numerous foci of T2 and FLAIR signal affecting deep and

subcortical white matter and a differential diagnosis of small

vessel disease versus demyelinating disease versus migraine

headaches versus vasculitis)).

41

In Meyer, the Fourth Circuit remanded on the basis of new

evidence submitted to the Appeals Council that filled an

evidentiary gap in the record, reasoning as follows:

On consideration of the record as a whole, we simply

cannot determine whether substantial evidence supports

the ALJ’s denial of benefits here. The ALJ emphasized

that the record before it lacked “restrictions placed on

the claimant by a treating physician,” suggesting that

this evidentiary gap played a role in [the ALJ’s]

decision. [The plaintiff] subsequently obtained this

missing evidence from his treating

physician[,] . . . [and] other record evidence credited

by the ALJ conflicts with the new evidence.

Meyer, 662 F.3d at 707. As in Meyer, Plaintiff here has filled the

evidentiary gap in the record by supplying evidence containing a

more definite diagnosis of MS in lieu of the inconclusive findings

in her prior MRIs. (See Tr. 112-15, 121, 748, 1399-1400.)

Moreover, as Plaintiff points out, the MS diagnosis also helps

to “explain many of [her] symptoms, including pain, fatigue,

weakness, gait disturbance, [and] balance difficulties” (Docket

Entry 10 at 19), which “are consistent with her diagnosis of [MS]”

(id. at 20 (citing “Multiple Sclerosis, Symptoms and Causes,” Mayo

Clinic, www.mayoclinic.org/diseases-conditions/multiple-

sclerosis/symptoms-causes/syc-20350269)). Indeed, Plaintiff’s

providers previously could not provide an explanation for many of

her persistent and varied symptoms. (See Tr. 841 (orthopedist’s

remark on 12/15/18 that Plaintiff’s symptoms “[were] something that

she [wa]s probably going to have to live with” and that she

“m[ight] be as good as she gets”), 844 (orthopedist’s 11/17/18

42

comment that he “believe[d Plaintiff’s] symptoms [we]re real, but

[that] there m[ight] not be anything [the orthopedist] could do” to

further relieve them), 848 (orthopedist noting on 8/22/18 that

objective testing had provided “no explanation for [Plaintiff’s]

ongoing symptoms”), 1288 (Plaintiff’s report to Nurse Powell on

10/9/20 that, “even before [Plaintiff] fell [on November 8, 2017],

she would have various non-explained aches and pains and sensory

issues” (emphasis added)), 1439 (Plaintiff’s statement to Nurse

Powell on 11/19/20 that Plaintiff “had various nonspecific symptoms

of muscle aching, numbness, and tingling involving the

extremities[ t]hat w[ere] probably mild previously . . . and then

worsened markedly after [the] fall [on November 8, 2017]” (emphasis

added)), 1460 (Nurse Powell’s remark on July 1, 2021, that “it

[wa]s still unclear what [wa]s causing [Plaintiff’s] issues”

because the “findings were inconclusive [for MS]” (emphasis

added)).)

Another district court recently had occasion to evaluate new

evidence that the Appeals Council found did not relate to the

period prior the ALJ’s decision, and remanded the case because the

new evidence provided a definitive diagnosis to explain the

plaintiff’s progressively worsening symptoms:

. . . [B]y the time of [the p]laintiff’s

[neuropsychological follow-up] testing [three months

after the ALJ’s unfavorable decision], he reported to

[his neurologist] that “[he could]n’t remember anything”

and his memory was “getting worse.” Following the

testing, [the neurologist] noted that [the p]laintiff was

43

showing a decline in his neuropsychological testing

“despite only mildly worsened or stable psychiatric

features.” [The neurologist] further stated that “[t]he

degree of impairment is significant” and that [the

pllaintiff needs assistance with his activities of daily

living. [The neurologist] upgraded [the plaintiff’s]

diagnosis to a major neurocognitive disorder (as opposed

to the previously diagnosed minor disorder), and noted

that the worsening over one year was “suggestive of a

progressive neurodegenerative disease.” [The

neurologist] discussed [the p]laintiff’s plans for the

future with him, and both [the p]laintiff and his sister

indicated he may need to move closer to his sister for

more assistance. Although the medical records

surrounding the diagnosis are not included in the

transcript now before the [c]ourt, a letter submitted by

[a n]Jurse [p]lractitioner . . . indicates that [the

plilaintiff was diagnosed by the [neurologist] with early

onset Alzheimer’s Disease [eight months after the ALJ’s

unfavorable decision].

[T]he [c]ourt finds that the new evidence is material, in

that [the neurologist]’s . . . report indicates that

Plaintiff’s condition was “worsening over one year,”

which was suggestive of a “progressive neurodegenerative

disease.” Given the ALJ’s acknowledgement of [the

plilaintiff’s deficits, [the neurologist]’s suggestion and

[nJurse [p]lractitioner[’s ] letter could have influenced

the ALJ to decide [the pllaintiff’s application

differently.

Randall G. v. Commissioner of Soc. Sec., No. 1:20CV1041, 2022 WL

3209584, at *7 (W.D.N.Y. Aug. 9, 2022) (unpublished) (emphasis

added) (internal citations omitted); see also Farrell v. Astrue,

692 F.3d 767, T7771 (7th Cir. 2012) (“[The new evidence’s]

materiality is [], in our view, beyond question: the ALJ’s decision

unequivocally rests in part on the determination that there is no

evidence that [a fibromyalgia] diagnosis has been confirmed. [The

plaintiff]’s new evidence fills in that evidentiary gap by

44

providing exactly that confirmation. And this diagnosis, confirmed

[one month after the ALJ’s denial decision], relates to the period

on or before the date of the [ALJ] hearing decision . . . [because

i]t builds on the allusions to possible fibromyalgia in [a

physician]’s reports [predating the ALJ’s unfavorable decision].”);

Tribble v. Commissioner of Soc. Sec. Admin., No. 8:20CV2631, 2021

WL 8014690, at *16 (D.S.C. Sept. 30, 2021) (unpublished) (noting

that new evidence would relate to the period on or before the ALJ’s

decision if it showed “some new impairment was diagnosed that was

connected to [the p]laintiff’s treatment prior to the ALJ’s

decision”), recommendation adopted, 2022 WL 884238 (D.S.C. Mar. 25,

2022) (unpublished); Ledbetter v. Saul, No. 2:19CV79, 2021 WL

725823, at *6 (M.D. Tenn. Feb. 4, 2021) (unpublished) (“Because of

the degenerative nature of disc disease, [the Commissioner]’s

argument that the [CT] scan does not relate to the period at issue

is unconvincing. The CT scan is objective medical evidence. Had

it been available at the time of the hearing, there is a reasonable

probability that the ALJ would have assessed [a physician]’s

opinion and [the p]laintiff’s own [statements] regarding her

symptoms more favorably and reached a different decision.”),

recommendation adopted, 2021 WL 722403 (M.D. Tenn. Feb. 24, 2021)

(unpublished).

In sum, the New MS Evidence, when considered as part of the

record as a whole, renders the ALJ’s denial decision unsupported by

45

substantial evidence. Accordingly, the Court should remand this

matter for further proceedings under sentence four of 42 U.S.C.

§ 405(g).

III. CONCLUSION

Plaintiff has established errors warranting remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be vacated, and that this matter be remanded

under sentence four of 42 U.S.C. 405(g) for further administrative

proceedings, to include reevaluation by the ALJ of 1) the impact of

Plaintiff’s headaches on her RFC; and 2) the New MS Evidence and,

in light of that evidence, reconsideration of a) which of

Plaintiff’s impairments qualify as severe; b) whether Plaintiff’s

impairments meet or medically equal any listings; and c)

Plaintiff’s RFC. As a result, Plaintiff’s Motion for Summary

Judgment (Docket Entry 9) should be granted, and Defendant’s Motion

for Judgment on the Pleadings (Docket Entry 13) should be denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 12, 2023

46