United States District Court, N.D. Alabama, Middle Division
E. Ott Chief United States Magistrate Judge.
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") denying her application for Disability
Insurance Benefits. (Doc. I). 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.
filed an application for a period of disability and
Disability Insurance Benefits (“DIB”) with the
Social Security Administration on July 13,
2012. (R. 27, 37, 130-137, 162). 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.
STANDARD OF REVIEW
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.
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).
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.
FINDINGS OF THE ALJ
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).
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.
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)
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.
The Appeals Council properly declined review based on the
additional evidence submitted in this case.
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).
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).
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
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,
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 ...