United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
plaintiff, Peggy Battles, appeals from the decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying her applications for
Supplemental Security Income (“SSI”), a period of
disability, and Disability Insurance Benefits
(“DIB”). Ms. Battles timely pursued and exhausted
her administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C.
§§ 405(g), 1383(c)(3).
Battles was forty-seven years old at the time of the
Administrative Law Judge's (“ALJ's”)
decision, and she has a tenth grade education. She has past
work as a restaurant assistant manager, combination working
manager/stocker, cashier, produce manager, and retail
stocker. (Tr. at 126.) Ms. Battles claims that she became
disabled on December 21, 2012, the date of her fourth knee
surgery. (Tr. at 112.) She claims to suffer from numerous
physical and mental problems including major depressive
disorder, panic disorder, posttraumatic stress disorder,
severe back pain due to degenerative disc disease, severe
neck pain due to cervical degenerative disc disease, joint
pain due to osteoarthritis, chronic hypertension, severe
bilateral wrist pain due to carpal tunnel syndrome s/p
arthroscopic surgery in 2011, severe bilateral foot pain,
severe headaches, obesity, and insomnia.
Social Security Administration has established a five-step
sequential evaluation process for determining whether an
individual is disabled and thus eligible for DIB or SSI.
See 20 C.F.R. §§ 404.1520, 416.920;
see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001). The evaluator will follow the steps in order
until making a finding of either disabled or not disabled; if
no finding is made, the analysis will proceed to the next
step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to
determine whether the plaintiff is engaged in substantial
gainful activity (“SGA”). See Id.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the
plaintiff is not engaged in SGA, the evaluator moves on to
the next step.
second step requires the evaluator to consider the combined
severity of the plaintiff's medically determinable
physical and mental impairments. See Id.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
individual impairment or combination of impairments that is
not classified as “severe” and does not satisfy
the durational requirements set forth in 20 C.F.R.
§§ 404.1509 and 416.909 will result in a finding of
not disabled. See 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). The decision depends
on the medical evidence contained in the record. See Hart
v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971)
(concluding that “substantial medical evidence in the
record” adequately supported the finding that plaintiff
was not disabled).
the third step requires the evaluator to consider whether the
plaintiff's impairment or combination of impairments
meets or is medically equal to the criteria of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
See 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the criteria of a listed impairment
and the durational requirements set forth in 20 C.F.R.
§§ 404.1509 and 416.909 are satisfied, the
evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
plaintiff's impairment or combination of impairments does
not meet or medically equal a listed impairment, the
evaluator must determine the plaintiff's residual
functional capacity (“RFC”) before proceeding to
the fourth step. See Id. §§ 404.1520(e),
416.920(e). The fourth step requires the evaluator to
determine whether the plaintiff has the RFC to perform the
requirements of his past relevant work. See Id.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the
plaintiff's impairment or combination of impairments does
not prevent him from performing his past relevant work, the
evaluator will make a finding of not disabled. See
fifth and final step requires the evaluator to consider the
plaintiff's RFC, age, education, and work experience in
order to determine whether the plaintiff can make an
adjustment to other work. See Id. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). If the plaintiff can
perform other work, the evaluator will find him not disabled.
Id.; see also 20 C.F.R. §§
404.1520(g), 416.920(g). If the Plaintiff cannot perform
other work, the evaluator will find him disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v), 404.1520(g),
the sequential evaluation process, the ALJ first found that
Ms. Battles meets the insured status requirements of the
Social Security Act through December 31, 2017. (Tr. at 114.)
He next determined that Ms. Battles has not engaged in SGA
since the alleged onset of her disability, December 21, 2012.
(Id.) According to the ALJ, Plaintiff's
osteoarthritis, bilateral carpal tunnel syndrome, s/p
bilateral releases, bilateral degenerative joint disease of
the knees, s/p right knee bicompartmental arthroplasty,
obesity, depression, anxiety, and posttraumatic stress
disorder are considered “severe” based on the
requirements set forth in the regulations. (Id.)
However, he determined that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. at 119.) The ALJ determined that Plaintiff has the RFC
to perform sedentary work that requires no operation of foot
controls, bilaterally; no climbing ladders, ropes, or
scaffolds; no exposure to excessive vibration, unprotected
heights, uneven terrain, or hazardous, moving machinery; no
more than occasionally climbing ramps and stairs, balancing,
stooping, kneeling, crouching, or crawling; no more than
frequent handling and fingering, bilaterally; can understand,
remember, and carry out simple instructions for periods of
two hours at a time over an eight-hour day with normal
mid-morning, lunch, and mid-afternoon breaks; and can
tolerate occasional decision-making, occasional changes to
her work environment, and occasional interaction with the
public, co-workers, and supervisors. (Tr. at 121.)
to the ALJ, Ms. Battles cannot perform any of her past
relevant work. (Tr. at 126.) The ALJ further noted that
Plaintiff is a “younger individual aged 45-49, ”
she has a “limited education, ” and she is able
to communicate in English, as those terms are defined in the
regulations. (Id.) With the assistance of a
vocational expert (“VE”), the ALJ found Plaintiff
could perform a significant number of jobs in the national
economy including document scanner, table worker, and
addressing clerk. (Tr. at 127.) Accordingly, the ALJ found
Plaintiff was not under a disability as defined in the Social
Security Act from December 21, 2012 through the date of his
Standard of Review
Court's role in reviewing claims brought under the Social
Security Act is a narrow one. The scope of its review is
limited to determining (1) whether there is substantial
evidence in the record as a whole to support the findings of
the Commissioner, and (2) whether the correct legal standards
were applied. See Stone v. Comm'r of Soc. Sec.,
544 F. App'x 839, 841 (11th Cir. 2013) (citing
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155,
1158 (11th Cir. 2004)). This Court gives deference to the
factual findings of the Commissioner, provided those findings
are supported by substantial evidence, but applies close
scrutiny to the legal conclusions. See Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
this Court may not decide facts, weigh evidence, or
substitute its judgment for that of the Commissioner.
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005) (quoting Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004)). “The substantial evidence
standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing
two inconsistent conclusions from the evidence does not
prevent an administrative agency's finding from being
supported by substantial evidence.'” Parker v.
Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J.,
dissenting) (quoting Consolo v. Fed. Mar.
Comm'n, 383 U.S. 607, 620 (1966)). Indeed, even if
this Court finds that the proof preponderates against the
Commissioner's decision, it must affirm if the decision
is supported by substantial evidence. Miles, 84 F.3d
at 1400 (citing Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)).
no decision is automatic, for “despite th[e]
deferential standard [for review of claims], it is imperative
that th[is] Court scrutinize the record in its entirety to
determine the reasonableness of the decision reached.”
Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987)
(citing Arnold v. Heckler, 732 F.2d 881, 883 (11th
Cir. 1984)). Moreover, failure to apply the correct legal
standards is grounds for reversal. See Bowen v.
Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Battles alleges that the ALJ's decision should be
reversed and remanded for four reasons. First, she
believes that the ALJ erred in finding her subjective
complaints of pain not credible because Social Security
Ruling (“SSR”) 16-3p, which became effective on
March 28, 2016, applies retroactively to her case and
eliminates consideration of a claimant's credibility from
an ALJ's analysis. Second, Plaintiff challenges the
weight given by the ALJ to some of the medical sources in her
case. Specifically, she contends that the ALJ erred in giving
little weight to the opinion of her treating physician, Dr.
Keithan, and to the opinions of one-time consultative
examiners Dr. Ripka and Dr. Wilson. Third, Plaintiff asserts
that the ALJ should have found that her impairments meet or
medically equal Listings 1.02, 12.04 and 12.06 at step three
of the sequential evaluation process. Fourth, she argues that
the Appeals Council refused to review new evidence she
submitted solely because it was dated after the ALJ's
decision without considering whether the new evidence was
actually chronologically relevant and/or material, and that
the ALJ's decision was not based on substantial evidence
when the evidence to the Appeals Council is considered.
Credibility Determination and SSR 16-3p
contends that the ALJ erred in evaluating her credibility
under SSR 16-3p, which became effective on March 28, 2016.
Plaintiff argues that this rule modification is retroactive
and credibility is no longer an issue.
Commissioner published SSR 16-3p on March 24, 2016, and
explicitly established the effective date for the ruling as
March 28, 2016. See SSR 16-3p, 2016 WL 1237954, at
*1 (March 24, 2016). SSR 16-3p was intended to supersede
former SSR 96-7p, and was enacted for the purpose of
providing “guidance about how we evaluate statements
regarding the intensity, persistence, and limiting effects of
symptoms in disability claims under Titles II and XVI of the
Social Security Act.” SSR 16-3p, 2016 WL 1119029 (March
16, 2013), at *1. Specifically, SSR 16-3p
eliminat[ed] the use of the term “credibility”
from [the Social Security Administration's]
sub-regulatory policy, as our regulations do not use this
term. In doing so, we clarify that subjective symptom
evaluation is not an examination of an individual's
character. Instead, we will more closely follow our
regulatory language regarding symptom evaluation.
Consistent with our regulations, we instruct our adjudicators
to consider all of the evidence in an individual's record
when they evaluate the intensity and persistence of symptoms
after they find that the individual has a medically
determinable impairment(s) that could reasonably be expected
to produce those symptoms. We evaluate the intensity and
persistence of an individual's symptoms so we can
determine how symptoms limit ability to perform work-related
activities for an adult . .
In evaluating an individual's symptoms, our adjudicators
will not assess an individual's overall character or
truthfulness in the manner typically used during an
adversarial court litigation. The focus of the evaluation of
an individual's symptoms should not be to determine
whether he or she is a truthful person. Rather, our
adjudicators will focus on whether the evidence establishes a
medically determinable impairment that could reasonably be
expected to produce the individual's symptoms and given
the adjudicator's evaluation of the individual's
symptoms, whether the intensity and persistence of the
activities or, for a child with a title XVI disability claim,
limit the child's ability to function independently,
appropriately, and effectively in an age-appropriate manner.
Id. at *1-2, 10 (alterations and ellipses supplied).
asserts that even though SSR 16-3p was not adopted until
after her case was decided in September 2014, it should be
applied retroactively. However, according to the Supreme
Court, “[r]etroactivity is not favored in the law,
” and administrative rules will not be construed to
have retroactive effect unless Congress expressly empowers
the agency to promulgate retroactive rules and the language
of the rule explicitly requires retroactive application.
Bowen v. Georgetown University Hosp., 488 U.S. 204,
208 (1988). The retroactivity of SSR 16-3p has not been
directly addressed by any circuit court of appeals in a
published decision. Nonetheless, the Eleventh Circuit has
twice recently declined to apply SSR 16-3p retroactively in
unpublished cases. See Green v. Comm'r, 2017 WL
3187048, at *4 (11th Cir. July 27, 2017); Lara v.
Comm'r, 2017 WL 3098126, at *8 n.6 (11th Cir. July
cites Cole v. Colvin, 831 F.3d 411 (7th Cir. 2016),
a Seventh Circuit case which neither endorsed nor otherwise
discussed retroactive application of SSR 16-3p. She also
cites Mendenhall v. Colvin, No. 3:14-cv-3389, 2016
WL 4250214 (C.D. Ill. Aug. 10, 2016), a non-binding
out-of-circuit district court case which cited to a Seventh
Circuit case to find an exception to the rule in
Bowen, 488 U.S. at 208, where the new rule clarifies
rather than changes existing law. See Mendenhall,
2016 WL 4250214, at *3 (citing Pope v. Shalala, 998
F.2d 473, 482-483 (7th Cir. 1993), overruled on other grounds
by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)).
However, contrary to the reading of Pope urged in
Mendenhall, the Pope court did not remand
for reconsideration under a new regulation, and it explicitly
held that applying a regulation that is a mere clarification
of an existing regulation “is no more retroactive in
its operation than is a judicial determination construing and
applying a statute to a case in hand.” Pope,
998 F.2d at 483. That is, rather than remand the case for
reconsideration under the new regulation, the Pope
court considered the clarification and affirmed the ALJ's
decision. See Id. at 486-87.
the Supreme Court's holding in Bowen and the
absence of any binding precedent directing that SSR 16-3p is
to apply retroactively, the Court is not persuaded that SSR
16-3p applies retroactively to the ALJ's September 2014
decision in this case.
SSR 16-3p did apply retroactively, the ALJ did not violate it
in this case. As an initial matter, SSR 16-3p does not alter
the methodology for evaluating a claimant's symptoms, but
rather explains that the Commissioner eliminated the use of
the term “credibility” from this consideration,
as “subjective symptom evaluation is not an examination
of an individual's character.” SSR 16-3p, 2016 WL
1119029, at *1. Even though the ALJ used the term
“credibility, ” he did not assess Plaintiff's
general, or “overall” character for truthfulness.
Instead, he determined, in accordance with SSR 16-3p, whether
Plaintiff's subjective complaints were supported by the
medical evidence and consistent with other information in the
record, as explained further below. See Cole, 831
F.3d at 412 (“The change in wording [from SSR 96-7p to
SSR 16-3p] is meant to clarify that administrative law judges
aren't in the business of impeaching claimants'
character; obviously administrative law judges will continue
to assess the credibility of pain assertions by applicants,
especially as such assertions often cannot be either credited
or rejected on the basis of medical evidence.”).
the ALJ's consideration of Plaintiff's subjective
symptoms violate existing regulations, which have not
changed. See 20 C.F.R. §§ 404.1529,
416.929. When a claimant attempts to prove disability based
on her subjective complaints, she must provide evidence of an
underlying medical condition and either objective medical
evidence confirming the severity of her alleged symptoms or
evidence establishing that her medical condition could be
reasonably expected to give rise to her alleged symptoms.
See 20 C.F.R. § 416.929(a), (b); Wilson v.
Barnhart, 284 F.3d 1219, 1225-26 (11th Cir. 2002). If
the objective medical evidence does not confirm the severity
of the claimant's alleged symptoms but the claimant
establishes that she has an impairment that could reasonably
be expected to produce her alleged symptoms, the ALJ must
evaluate the intensity and persistence of the claimant's
alleged symptoms and their effect on her ability to work.
See 20 C.F.R. § 416.929(c), (d);
Wilson, 284 F.3d at 1225-26. An ALJ is not required
to accept a claimant's allegations of pain and/or
symptoms. Wilson, 284 F.3d at 1225- 26. However, the
ALJ must “[explicitly articulate] the reasons
justifying a decision to discredit a claimant's
subjective pain testimony.” Moore v. Barnhart,
405 F.3d 1208, 1212 n.4 (11th Cir. 2005) (citing Cannon
v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988)).
Further, when the reasoning for discrediting is explicit and
supported with substantial evidence, “the record will
not be disturbed by a reviewing court.” Foote v.
Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).
than to restate portions of her hearing transcript, Plaintiff
does not explain how the ALJ erred in evaluating her
credibility. Nonetheless, in this case, the ALJ's
decision reveals that he properly assessed Plaintiff's
subjective complaints of pain. Plaintiff testified that her
carpal tunnel releases and knee replacements were all
unsuccessful; that she cannot sit for longer than 30 minutes
or stand for longer than 15 to 20 minutes at a time; that she
has problems manipulating things with her hands and fingers;
she is unable to turn her head to the left; she does not
drive or do much cleaning; her pain is a 7 out of 10; her
current pain medications are ineffective; she spends 95% of
her waking hours lying in bed; she only sleeps two hours per
night; she hallucinates at night; and she unintentionally
lost 60 pounds over a period of a few months due to
depression. (Tr. at 73-77.) Based on the overall evidence as
explained by the ALJ, the ALJ found that Plaintiff's
medically determinable impairments could reasonably be
expected to cause her alleged symptoms, but that
Plaintiff's statements concerning the intensity,
persistence, and limiting effects of her symptoms were not
entirely credible. (Tr. at 121-22).
evidence supports the ALJ's credibility determination. As
noted by the ALJ, Plaintiff's allegations were
inconsistent with the evidence of record, including the
findings of Dr. Upadhyay and consultative examiner, Dr.
Iyers. (Tr. 123). Dr. Upadhyay, Plaintiff's former pain
management specialist, whom she saw three times in October
and November 2012 and January 2013, identified neck pain into
the left shoulder as her chief complaint but characterized
her neck as having good range of motion. (Tr. at 478.) At her
March 2013 consultative examination with Dr. Iyers, Plaintiff
reported a two-year history of neck pain but Dr. Iyers also
found that she had full neck and upper extremity range of
motion. (Tr. at 518.) The ALJ also discussed how
Plaintiff's allegations regarding her hand and finger
limitations were also inconsistent with the evidence of
record, including Dr. Sparks's treatment notes. (Tr. at
430-32.) Dr. Sparks performed Plaintiff's carpal tunnel
release and released her to return to work in October 2011,
noting that Plaintiff said her hands were “doing
good.” (Id.) The ALJ also explained ...