# ECHOLS v. KIJAKAZI

> District Court, M.D. North Carolina · May 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10254399

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254399

## How later opinions describe it (automated extraction)

- 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)
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254399. Public record. Not legal advice.