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Griffin v. Berryhill

United States District Court, N.D. Alabama, Middle Division

March 29, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          John E. Ott Chief United States Magistrate Judge.

         Plaintiff Tammy Griffin ("Griffin" or "Plaintiff) brings this action pursuant to 28 U.S.C.§ 405(g), seeking review of the final decision of the Acting Commissioner of the Social Security Administration ("Commissioner")[1] denying her application for Disability Insurance Benefits. (Doc. I).[2] She also has filed a motion to remand this case to the Commissioner for further proceedings pursuant to Social Security Ruling ("SSR") 16-3p (2016 WL 1119029 (2016)), which modified the criteria for determining the intensity and persistence of a claimant's symptoms. (Doc. 11). Upon review of the record, the court finds that the Commissioner's decision is due to be affirmed and the motion to remand is due to be denied.


         Griffin filed an application for a period of disability and Disability Insurance Benefits (“DIB”) with the Social Security Administration on July 13, 2012.[3] (R. 27, 37, 130-137, 162).[4] The Social Security Administration initially denied Griffin's claim on August 31, 2012. (R. 73-86). Griffin then requested a hearing before an Administrative Law Judge (“ALJ”). (R. 87-88). On October 9, 2013, the ALJ conducted a hearing, at which Griffin, her attorney, and a vocational expert all appeared. On November 22, 2013, the ALJ issued his decision denying Griffin's claim. (R. 27-37). On January 9, 2014, Griffin requested that the Social Security Appeals Council review the ALJ's decision. (R. 10-13). The Appeals Council denied Griffin's request for review on April 11, 2015, which finalized the Commissioner's decision. (R. 1-7). On June 10, 2015, Griffin filed this action for judicial review under 42 U.S.C. § 405(g).


         This court must determine (1) whether the Commissioner's decision is supported by the substantial evidence, and (2) whether the Commissioner applied the proper legal standards. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence is what “a reasonable person would accept as adequate to support a conclusion.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004). It is “more than a scintilla, but less than a preponderance.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Accordingly, the court reviews the ALJ's factual findings with deference. See Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). By contrast, the court reviews questions of law de novo, applying close scrutiny to the ALJ's legal conclusions. Id. In determining whether the Commissioner's decision is supported by new evidence, the court must consider new evidence submitted to the Social Security Appeals Council. Ingram v. Commissioner of Social Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).


         To qualify for DIB a claimant must establish disability on or before the date she was last insured for disability insurance benefits. See 42 U.S.C. §§ 423(a)(1)(E) & (c); 416(i)(3). The term “disability” is defined as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i).

         To determine the claimant's disability status, the Commissioner employs a five-step evaluation of the evidence in the record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The Commissioner must determine whether the claimant (1) is engaged in substantial gainful activity; (2) has a severe medically determinable physical or mental impairment that (3) meets CFR list criteria and duration requirements; (4) has the residual functional capacity to perform the requirements of her past relevant work, or (5) is capable of doing any other work. See 20 C.F.R. § 404.1512(a) & 404.1520(a). At step four, the claimant must demonstrate that she cannot perform her past relevant work. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). If the claimant can still do her past relevant work, she will be deemed not disabled. 20 C.F.R. § 404.1520(a)(4)(iv).


         Griffin was 45 years old at the time of the ALJ's decision. (R. 31). Griffin has a high school level education. (Id.) At the administrative hearing, Griffin testified that she last worked in July 2012 when she tried to return to work cleaning houses. (Id.) Before July 2012, Griffin last worked in March 2012 as an associate inspecting auto parts. (Id.) Griffin's past relevant work experience includes delivering auto parts, road construction, finishing columns and porch railings, waiting tables and cooking, gas station attendant, and substitute teaching. (Id.) Applying the five-part test, the ALJ found as follows: First, Griffin did not engage in substantial gainful activity since March 9, 2012, the alleged onset date of her disability. (R. 30). Second, Griffin had the following “severe” medically determinable physical impairments: degenerative disk disease, degenerative joint disease, thoracic outlet syndrome, history of cervical fusion, fibromyalgia, and migraines. (R. 29). Third, none of Griffin's impairments met the Code of Federal Regulations list requirements. Fourth, Griffin had the residual functional capacity (“RFC”) to perform light, unskilled work, except work that includes climbing ropes, ladders, or scaffolds; unprotected heights; hazardous machinery; more than occasional stooping, crouching, crawling, or kneeling; and more than occasional ambulation over uneven surfaces. (R. 30). Accordingly, the ALJ concluded that Griffin was not disabled at any time from March 9, 2012, through November 22, 2013, the date of his decision. (R. 37).

         V. DISCUSSION

         Griffin alleges that the Appeals Council erred by failing to considerer the additional evidence that was presented to it without considering whether the records were chronologically relevant. (Doc. 6 at 3, 14-16). Griffin further alleges that the ALJ's decision is not based on substantial evidence when the additional evidence is considered. (Id. at 16-18). Griffin also has moved for an order of remand, arguing that the recent passage of SSR 16-3p, which became effective March 28, 2016, renders the ALJ's consideration of credibility in his subjective symptom analysis improper. (Doc. 11). Griffin asks this court to remand the case to allow the ALJ to review her claim, consider the additional evidence, and apply the new standard set forth in SSR 16-3p. (Id.)

         A. NEW EVIDENCE

         The applicable standard is clear:

[A] claimant is generally allowed to introduce new evidence at each stage of the process and the Appeals Council must consider the evidence if it is new, material, and chronologically relevant. Ingram v. Comm'r of Soc. Sec., 496 F.3d 1253, 1261 (11th. Cir. 2007). Evidence is material under this standard if “there is a reasonable possibility that the new evidence would change the administrative outcome.” Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). In order to be chronologically relevant, the new evidence must “relate to the period on or before the date of the [ALJ] hearing decision.” 20 C.F.R. § 404.970(b) (2016). Evidence is not chronologically irrelevant solely because it is dated after the ALJ decision if it still relates back to the relevant period of time. See Washington v. SSA, 806 F.3d 1317, 1322 (11th Cir. 2015) (holding that treating physician's opinion give[n] after ALJ decision was still chronologically relevant because Plaintiff told the doctor he had experienced hallucinations before and the doctor examined medical records from the relevant period). When the claimant presents new evidence, the Appeals Council must grant review when the ALJ's decision is against the weight of the current record. Harrison v. Comm'r of Soc. Sec., 569 F.Appx. 874, 881 (11th Cir. 2014). Yates v. Colvin, 2016 WL 4447464, *6 (N.D. Ala. Aug. 24, 2016) (J. Proctor).[5]

         In Yates, the claimant offered additional medical records from her doctor during her appeal to the Appeals Council. The records evidenced a worsening headache, concern over the increased size of an existing cyst, and uncontrolled depression after the date of the ALJ's decision. Id. at *7. Rejecting her claim, Judge Proctor found that there was no indication that the doctor relied on medical records from the relevant period. Id. Judge Proctor further found that even if the additional evidence was chronologically relevant, it was not material “as there was not a reasonable possibility that it would change the administrative outcome.” Id.

         1. The Appeals Council properly declined review based on the additional evidence submitted in this case.

         The new evidence that was presented to the Appeals Council in this case consists of (1) a “Physical Capabilities Form” dated February 13, 2014, from Dr. Byron Nelson (R. 9) and a March 19, 2012 examination form from Dr. Myron Wilson (R. 370-72); (2) a March 17, 2014 MRI report from Ft. Payne Imaging (R. 8); and (3) Gadsden Regional Medical Center records from August 15, 2000 through August 3, 2010. (Doc. 6 at 2; R. 223-25, 342-69). The Appeals Council reviewed the foregoing documents and determined that the records from Dr. Wilson and Gadsden Regional did not provide a sufficient basis for altering the ALJ's determination and that the Ft. Payne Imaging report and Dr. Nelson's report were “about a later time” and did “not affect the decision” concerning Griffin's disability on November 22, 2013. (R. 2). Griffin argues that the Appeals Council erred because it did not consider whether the imaging report and the “Physical Capacities Form” were chronologically relevant. (Doc. 6 at 2). She further argues that these records substantiate her claims of debilitating pain and severe limitations. (Id. at 16). The Commissioner responds that the records did not concern the relevant period before the disability date and even if they are chronologically relevant, they do not demonstrate that the ALJ's decision was erroneous. (Doc. 7 at 4-12).

         a. Background

         Griffin was injured on March 9, 2012, when “she felt a pop in her back moving a bin of parts while at work.” (R. 33). Medical records from her immediate visit to the Dekalb Regional Medical Center, including x-ray imaging of her lumbar spine, revealed “[t]he clinical impression [of] acute muscular spasm and acute lumbar strain.” (R. 32). A subsequent MRI on March 23, 2012, showed normal lordotic alignment, unremarkable paravertebral soft tissues, and normal marrow signal in her lower spine. (R. 296). Her L1-5 discs remained preserved, and she had mild facet hypertrophy at ¶ 4-L5. (Id.) She had modest desiccation at ¶ 5-S1, and a small disc bulge and endplate bar. (Id.) The overall impression was modest L5 degenerative disc disease with left eccentric forminal narrowing, no focal disc protrusion or herniation, and facet hypertrophy of the lumbar spine. (R. at 32, 296).

         Griffin underwent physical therapy in April 2012. During therapy she described her pain level as 7 at rest and 10 with activity. (R. 32). She also complained that pain limited her lumbar motion. (Id.)

         During her May 2, 2012 examination at St. Vincent's Orthopedics, she reported lower back pain. Her physical examination revealed no apparent distress and minimal pain on extension. (R. 33, 243). “The impression was low back pain with possible mild chemical radiculitis in the left lower extremity.” (Id. at 33, 244). She again reported back pain during her May 9, 2012 examination. She stated that she had been back at work, but she was not able to tolerate the pain from standing on concrete. (R. 242). Dr. J. Todd Smith wanted her to continue at work, but with a restriction of no “long standing or walking.” (Id.) Her June 5, 2012 visit revealed she had “severe degenerative changes at ¶ 5-S1.” (Id. at 241). She was diagnosed with “chemical radiculitis left lower extremity, and [a] small disc herniation at the L5-S1 level with degenerative disc disease.” (Id.) However, Dr. Smith continued her at work with the same restrictions. A mere three weeks later, “she was described as having severe collapse at ¶ 5-S1.” (Id. at 33, 240). The visit records also note she had “significant L5-S1 degenerative disc disease, low back pain, and left lower extremity radicular symptoms.” (Id.). Griffin was also noted as being at her “maximum medical improvement” on July 11, 2012. (Id. at 33, 239).

         Griffin was seen by Dr. Martin Jones at Neurological Surgery Associates on July 23, 2012. After reviewing Griffin's x-rays and MRI scan, Dr. Jones stated that he believed Griffin's injury “represents an aggravation of her underlying condition.” (R. 294). He concluded that Griffin could return to work without restrictions related to her work injury. (Id.) He also noted that “[s]he may [need] restrictions to ...

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