Herfield v. Berryhill (S.D. Fla. Mar. 29, 2017) (Magistrate Judge Patrick M. Hunt)

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Included: Plaintiff’s Brief, Plaintiff’s Reply Brief, Supplemental Reply Brief, Report and Recommendation, Plaintiff’s Reply to Commissioner’s Objections to Report and Recommendation, and Order

Issues briefed:

  1. 1)  The Appeals Council erred by failing to remand for consideration of new and material evidence undermining the ALJ’s conclusions.

  2. 2)  The ALJ erred by not properly rejecting the opinions of Dr. Eidelson, Ms. Herfield’s treating physician.

  3. 3)  The ALJ reversibly erred by relying on a defective evaluation of ms. Herfield subjective complaints and credibility.

  4. 4)  The ALJ did not carry the commissioner’s burden at step five of the sequential evaluation process.

The court remanded because the “Appeals Council erred by failing to submit the new evidence to the ALJ” and the “failure to submit the new evidence prejudiced the Plaintiff in that there is a reasonable possibility that it would have changed the administrative result” as this “evidence was new, non-cumulative and chronologically relevant.” R&R at 12. At issue was the fact that the claimant “underwent additional surgery mere weeks after the ALJ’s decision.” Id. The court elaborated:

The record shows that since 2012, Plaintiff was advised that her degenerative condition was going to require multiple surgeries over time and it did. The records from 2012 corroborate this diagnosis. The testimony of Dr. Eidelson and the new medical records reference Plaintiff’s condition, symptoms and treatment prior to the ALJ decision, clearly satisfying the requirement that they be chronologically relevant.

Id. at 13. In rejecting the Commissioner’s argument the new evidence was “simply cumulative,” the court found that “the records should be reviewed by the ALJ to determine if they present greater functional limitations than the ALJ thought existed.” Id. Moreover, the “new evidence of additional lumbar facet blocks, transforaminal injections and treatment with Vicodin, serves to strengthen the evidence in the record demonstrating a more extensive and frequent treatment regimen.” Id. Accordingly, the “ALJ should have been provided with the opportunity to evaluate all of the new evidence and the Appeals Council failed to provide this critical evidence.” Id.

The court thus held:

Based on the reasons the ALJ stated in her decision for denying Plaintiff’s claim and her finding that Plaintiff could perform light work, the undersigned finds the documents at Tr. 16-39 and the new evidence at 881, 882, 885, 890 and 893, as well as Dr. Eidelson’s sworn testimony, Tr. 860-880, are material because there is a reasonable possibility that the new evidence would change the administrative outcome. Accordingly, in light of the evidence that was not included in the record, the undersigned finds that Plaintiff was prejudiced and that a remand to address the issues presented is warranted.

Id. at 14. The court concluded that the “record was not fully and fairly developed and, as a result, the claimant was prejudiced.” Id. at 15.