KAREN E. SCOTT, Magistrate Judge.
In January 2014, Naomi A. ("Plaintiff") filed an application for supplemental security income ("SSI") alleging disability commencing November 20, 2013. Administrative Record ("AR") 413-23.
On October 15, 2015, an Administrative Law Judge ("ALJ") conducted a hearing at which Plaintiff, who was represented by counsel, appeared and testified, as did a vocational expert ("VE"). AR 272-313.
On December 5, 2015, the ALJ issued a decision denying Plaintiff's application. AR 130-52. At step two of the sequential evaluation process,
In so finding, the ALJ cited Plaintiff's consultative internal medicine examination with Dr. To in February 2014, at which Plaintiff complained of back pain for the past five years. AR 137, citing AR 607. The examination of Plaintiff's cervical and thoracolumber spine revealed mild tenderness on palpation, but no discernable limitation on any range of motion or evidence of radiculopathy. AR 137, citing AR 609-11.
The ALJ also cited August 2014 treatment notes from the La Puente Valley Medical Group ("LPVMG"), which stated that neck and back pain were "not present." AR 137, citing AR 901.
Last, the ALJ cited AR 714-19 for Plaintiff's "sporadic" physical therapy.
The ALJ found that Plaintiff did suffer from the medically determinable severe impairment of a seizure disorder. AR 135. Despite this impairment, the ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform the demands of medium work, specifically:
AR 140, citing 20 C.F.R. § 416.967.
Based on this RFC and the VE's testimony, the ALJ determined that Plaintiff could not perform her past relevant work as a machine packager or glass crusher. AR 145. The ALJ found, however, that Plaintiff could work as a dishwasher, Dictionary of Occupational Titles ("DOT") 318.687-010; dining room attendant, DOT 311.677-018; and patient transporter, DOT 35.677-014. AR 146-47. The ALJ concluded that Plaintiff was not disabled. AR 147.
After the ALJ's opinion, Plaintiff submitted to the Appeals Council a number of additional medical records, including a report on the lumbar x-rays ordered by LPVMG in October 2015. AR 2, 218. That report pre-dates the ALJ's decision.
AR 218 [copy at AR 163].
Plaintiff also submitted to the Appeals Council an MRI of her lumber spine performed on December 4, 2015, i.e., before the ALJ's decision.
Plaintiff argues that the ALJ erred at step two of the sequential evaluation by determining that Plaintiff's back impairment was non-severe. (Dkt. 26, Joint Stipulation ["JS"] at 4.) In so arguing, Plaintiff (and Respondent) assume that the Appeals Council considered the additional records submitted by Plaintiff and made them part of the administrative record. (
Thus, the Court interprets Plaintiff as asking this Court to consider and make part of the record the x-ray and MRI images discussed above.
Plaintiff's appeal therefore falls under "sentence six" of 42 U.S.C. § 405(g), which provides for district court review of the Social Security Administration's final decision.
To be material, the new evidence must bear "directly and substantially on the matter in dispute."
"To demonstrate good cause, the claimant must demonstrate that the new evidence was unavailable earlier."
Here, Plaintiff has demonstrated both materiality and good cause. The ALJ based his step-two finding regarding Plaintiff's back pain primarily on the absence of imaging studies. Apparently, imaging studies occurring around the time of the ALJ hearing and decision
The ALJ also erroneously concluded that Plaintiff's only treatment for back pain during the period of claimed disability was physical therapy. In July 2014, Plaintiff had requested and received a "Flector patch for back pain" from LPVMG.
In sum, given these records, there is a reasonable possibility that including the x-ray and MRI images in the record would have changed the outcome. As for good cause, the x-rays and MRI images were created almost contemporaneously with the ALJ hearing and decision. Defendant argues that the ALJ's error was harmless because the ALJ adopted an RFC based on Dr. To's opinions, and Dr. To considered Plaintiff's complaints of back pain. (JS at 11.) The Court is uncertain whether "harmless error" is the appropriate standard here, given that the ALJ did not "err," but rather did not have before him the new, material evidence discussed above. In any event, for the reasons discussed above, the new evidence is material and thus could have impacted the outcome of the proceedings. Furthermore, Dr. To's opinions pre-date the imaging studies. It is unclear that Dr. To or the state agency physicians would have assessed the same RFC if they had been able to review the imaging studies showing abnormalities affecting Plaintiff's lumbar spine.
Defendant also points out that in a May 11, 2016 treatment note, Plaintiff denied having any current back pain. (JS at 13, citing AR 78.) That note explains that Plaintiff had received six epidural injections to the lumber spine. AR 78. While a condition with symptoms that can be adequately controlled with conservative treatment may not be disabling, the ALJ never considered whether Plaintiff's back pain is sufficiently controlled by medication such that it does not more than minimally affect her ability to do basic work activities. Instead, the ALJ indicated that the AR was "devoid of . . . treatment of a back issue other than very sporadic physical therapy." AR 137. The Court cannot affirm the decision of the Social Security Administration on a ground on which the agency did not rely in reaching its decision.
On remand, the ALJ should evaluate the later-submitted evidence relevant to the period of claimed disability and determine its impact on the RFC findings and on the vocational findings.
For the reasons stated above, the Commissioner's decision that Plaintiff is not disabled is REVERSED and REMANDED for further proceedings consistent with this opinion.