United States District Court, N.D. Alabama, Northeastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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. 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,
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).
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.
issue before the court is whether the Appeals Council erred
by failing to adequately evaluate the claimant's new,
chronologically relevant, and material evidence.
STANDARD OF REVIEW
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).
. . . 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).
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.
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.
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
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).
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.
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).
of Physical and Mental Impairments in the Record Before 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).
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.
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).
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.”
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.
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.
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).
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).
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).
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.
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
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