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Yarbrough v. Berryhill

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

March 20, 2018





         On August 19, 2014, the claimant, Stepahnie McKoy Yarbrough, protectively applied for disability and disability insurance benefits under Title II of the Social Security Act because of back pain, hypertension, obesity, depression, and anxiety.[1] The Commissioner denied the claims on December 12, 2014 because of lack of evidence. The claimant timely requested a hearing before an Administrative Law Judge, who held a hearing on December 15, 2015. (R. 100-06, 191-95, 260-68).

         In a decision dated February 10, 2016, the ALJ found the claimant not disabled under Title II. The claimant filed a timely request for a hearing before the Appeals Council on April 8, 2016 and submitted new evidence to it. The Appeals Council considered the new evidence but denied the claimant's appeal because that evidence did not provide a basis for changing the ALJ's decision. Thus, the ALJ's decision became the final decision of the Commissioner on August 1, 2016. (R. 1-6, 25-38).

         The claimant has exhausted her administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court REVERSES AND REMANDS the decision of the Commissioner because the Appeals Council failed to adequately evaluate the claimant's new evidence.


         The issue before the court is whether the Appeals Council erred by failing to adequately evaluate the claimant's new, chronologically relevant, and material evidence.


         The standard for reviewing the Commissioner's decision is limited. This court must affirm the Commissioner's decision if the ALJ applied the correct legal standards and if substantial evidence supports her factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         “No . . . presumption of validity attaches to the [Commissioner's] legal claims.” Walker, 826 F.2d at 999. This court does not review the ALJ's factual determinations de novo. The court will affirm those factual determinations that are supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

         The court must keep in mind that opinions such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity (RFC), and the application of vocational factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is entitled to Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look only to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).


         The issue upon which the court will reverse the Commissioner's decision in this case involves evidence submitted by the claimant to the Appeals Council after the ALJ's decision. Generally, a claimant may present new evidence at each stage of the administrative process. Washington v. Comm'r of Soc. Sec. Admin., 806 F.3d 1317, 1320 (11th Cir. 2015). The Appeals Council has the discretion to not review the ALJ's denial of benefits. See 20 C.F.R. § 416.1470(b). But, in making its decision whether to review the ALJ's decision, the Appeals Council “must consider new, material, and chronologically relevant evidence” that the claimant submits. Hargress v. Soc. Sec. Admin., 874 F.3d 1284, 1290-91 (11th Cir. 2017); Washington, 806 F.3d at 1320.

         Evidence is material if a reasonable possibility exists that it would change the administrative result. Washington, 806 F.3d at 1321. Evidence is chronologically relevant if “it relates to the period on or before the date of the [ALJ] hearing decision.” Hargress, 874 F.3d at 1291. Medical opinions based on treatment occurring after the date of the ALJ's decision may still be chronologically relevant if the records upon which the doctor bases his opinion relate to the period on or before the date of the ALJ's decision. See Washington, 806 F.3d at 1323. The claimant can show that a medical opinion dated after the ALJ's decision is chronologically relevant if it is based on a “review of the claimant's medical history and [her] report of symptoms during the relevant time period and there was no evidence of a decline in [her] condition since the ALJ's decision.” Ashley v. Comm'r of Soc. Sec. Admin., 707 F. App'x 939, 944 (11th Cir. 2017) (citing Washington, 806 F.3d at 1322-23); see also Hargress, 874 F.3d at 1291 (discussing Washington, 806 F.3d at 1319, 1322-23).

         This court has the authority to remand a case based on such new, material, and chronologically relevant evidence pursuant to 42 U.S.C. §405(g) under a sentence four remand or reversal. See 20 C.F.R. §§ 404.940, 404.946. “To obtain a sentence four remand, the claimant must show that, in light of the new evidence submitted to the Appeals Council, the ALJ's decision to deny benefits is not supported by substantial evidence in the record as a whole.” Hearn v. Soc. Sec. Admin., 619 F. App'x 892, 894 (11th Cir. 2015) (citing Ingram v. Comm'r Soc. Sec. Admin., 496 F.3d 1253, 1266-67 (11th Cir. 2007)). When the evidence submitted to the Appeals Council “undermine[s] the substantial evidence supporting the ALJ's decision, ” the Appeals Council errs in failing to review the ALJ's decision. Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 785 (11th Cir. 2014). “The Appeals Council must grant the petition for review if the ALJ's ‘action, findings, or conclusion is contrary to the weight of the evidence, ' including the new evidence.” Hargress, 874 F.3d at 1291 (citing Ingram, 496 F.3d at 1261.

         V. FACTS

         The claimant was fifty-one years of age at the time of the ALJ's final decision; had completed high school and two years of college; has past relevant work as a health care administrator and officer manager; and alleges disability based on back pain, hypertension, obesity, depression, and anxiety. (R. 192, 262).

         Evidence of Physical and Mental Impairments in the Record Before the ALJ

         The claimant sought treatment on February 18, 2014 at Cullman Heart & Urgent Care for increased back pain that radiated to her leg for the past two days. She reported that sitting increased her pain. The claimant could walk heel to toe; had no balance issues; and reported no numbness. The nurse practitioner diagnosed sciatica and lumber radiculopathy and gave the claimant an injection of Toradol/Decadron for pain. The claimant returned for a follow-up on July 2, 2014 again complaining of increased low back pain for five days; the nurse practitioner gave the claimant another Toradol/Decadron injection for pain. (R. 393, 397).

         On July 12, 2014, the claimant presented to American Family Care after hurting her back in a car accident the day before. The claimant complained of increased back pain as a result of the accident. Dr. Eileen Gallagher noted the claimant's prior prescriptions for Metformin, Micardis, Nexium, and Prozac. Her blood pressure was 132/82, and she weighed 206.4 pounds. Dr. Gallagher assessed a back strain and back pain with sciatica; gave the claimant an injection of pain medications; and prescribed Percocet for five days after confirming “with the ADPH-PDH [that the claimant] had not receive[d] any pain medication in last 6 months-only listing is Alpraxolam fro[m] Dr. Corliss on 2/19/14.” (R. 301-02).

         The claimant returned to Cullman Heart & Urgent Care on August 6, 2014, complaining of continued lower back pain radiating to her right leg that worsened since her July accident. The claimant's physical examination revealed tenderness to palpation in the lower lumbar area, and the doctor prescribed Narco and Ultram for pain. (R. 391-92).

         At the request of the Disability Determination Service, the claimant completed a “Function Report-Adult” on September 9, 2014. In that report, the claimant noted that she had a laminectomy at L-5 and S-1 years ago that caused her inability to lift, and that her back pain has worsened since her car accident in July. She stated that she was placed on medical leave in April 2012, and she resigned in May 2012 because she “wasn't healthy.”

         The claimant stated she lives with her husband and elderly mother, who she helps sometimes by bringing her water and calling for help when she falls. The claimant's husband feeds the pets; helps her mother get up when she falls; and helps the claimant fill her “pill box.” The claimant's typical day involves lying on a heating pad; doing back exercises and stretches; brushing teeth; taking a shower, but never a bath because sitting in the tub hurts her back; and reading and finding coupons in the paper.

         She cannot sit for long durations because of her back pain and can walk about a half mile before she has to rest. The claimant can dress herself except she needs help with her socks; cannot shave her legs; and needs assistance using the toilet if her back pain is “irritated or strained.” She can prepare simple meals like cheese toast, sandwiches, and frozen dinners, but can no longer cook like she used to because she cannot stand for long durations. She can sweep a “short time”; only does laundry “by piece at a time” because the clothes are too heavy to lift; does not go outside often; can drive only a short duration because of her back pain and sciatica; and shops in small stores for necessities.

         The claimant stated she had a hysterectomy but could not take hormone replacements because of her rare blood disorder Factor Five Leiden. She became depressed in 2012 and had her Xanax increased three times because her depression worsened. She has no hobbies; has no church or social club affiliations; and no longer cares about how she looks. She has severe anxiety and wakes up sweating with a rapid heart rate; has severe focus and clarity issue; is unable to concentrate; never finishes anything at one time; and procrastinates. (R. 291-298).

         The claimant's mother completed a “Function Report-Adult-Third Party, which was undated, that mirrored the limitations explained in the claimant's “Function Report.” (R. 283-90).

         After suffering increased back pain for four days, the claimant returned to Cullman Heart & Urgent Care on November 3, 2014. She described her back pain as constant that radiates to her right leg and said lying down helps decrease the pain. The doctor gave her another Toradol/Decadron injection for the pain. (R. 504-05).

         On November 25, 2014, at the request of the Disability Determination Service, Dr. Jack L. Bentley, Jr. reviewed the claimant's medical records and conducted a consultative psychiatric examination of the claimant. The claimant told Dr. Bentley that she began experiencing psychiatric issues in 2011 after a tornado nearly destroyed her home. She reported that she has “felt on the verge of a 'nervous breakdown' for the past three years”; has never had formal psychiatric treatment but has taken “multiple SSRIs [prescribed] by her PMD”; takes Prozac and Xanax that have done “little to alleviate the severity of her psychiatric difficulties”; and suffers from crying spells, severe depression, panic attacks, obsessive thinking, pacing, restlessness, and occasional periods of rage. Her teenage son also suffers from anxiety, and she worries about him. She told Dr. Bentley that she functioned for 27 years as an administrator for 15 different doctor groups, but could not handle the stress anymore and went on medical leave and then resigned in May 2014.

         The claimant reported “moderate to severe sleep disturbance” because of her racing thoughts, obsessive thinking, and severe back pain. She can do “a variety of household chores, ” but has to rest frequently; rarely leaves home because she has to take care of her mother; has no hobbies; and does not socialize except with close family.

         Dr. Bentley's physical examination of the claimant showed she weighed 204 pounds, which the claimant said was a gain of 40 pounds since May 2014. She was “severely depressed and cried profusely throughout the evaluation.” Dr. Bentley noted evidence of the claimant's anxiety, restlessness, agitation and obsessional thinking during the interview. “She appeared on the verge of a panic attack” during the examination. She was alert and oriented; had normal attire and grooming; had normal psychomotor skills; could recall one of three objects after five minutes; could recite six digits forward and four backwards; spelled the word “world” backwards; could perform serial ...

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