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Black v. Berryhill

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

April 5, 2018

JOSEPH BLACK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          John E. Ott Chief United States Magistrate Judge.

         Plaintiff Joseph Black brings this action seeking judicial review of a final adverse decision of the Acting Commissioner of the Social Security Administration (“Commissioner”) denying his application for Supplemental Security Income (“SSI”). (Doc.[1] 1). He also has filed a motion to remand the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 14). The case has been assigned to the undersigned United States Magistrate Judge pursuant to this court's general order of reference. The parties have consented to the jurisdiction of this court for disposition of the matter. (Doc. 18). See 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(a). Upon review of the record and the relevant law, the undersigned finds that the Commissioner's decision is due to be affirmed and that Black's motion to remand is due to be denied.


         On January 3, 2013, Black filed an application for SSI, alleging disability beginning November 24, 2010. (R.[2] 64, 129). Following the initial denial of his application (R. 64), Black requested a hearing before an Administrative Law Judge (“ALJ”), which was held on September 26, 2014. (R. 40-63). Prior to the hearing, Black amended his alleged onset date to January 3, 2013. (R. 205). The ALJ issued an unfavorable decision on March 10, 2015, finding that Black was not disabled. (R. 20-35).

         Black requested Appeals Council Review and submitted additional evidence regarding his alleged disability. (R. 16, 212-67). The Appeals Council denied Black's request for review on July 9, 2016. (R. 1-5). Black then filed this action for judicial review under 42 U.S.C. § 405(g).


         The court's review of the Commissioner's decision is narrowly circumscribed. The function of the court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court must “scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.

         The court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, it must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).


         To qualify for SSI under the Social Security Act, a claimant must show the inability to engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c (a)(3)(A). A physical or mental impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c (a)(3)(D).

         Determination of disability under the Social Security Act requires a five step analysis:

At the first step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. [20 C.F.R.] § 416.920(a)(4)(i), (b). At the second step, the ALJ must determine whether the impairment or combination of impairments for which the claimant allegedly suffers is “severe.” Id. § 416.920(a)(4)(ii), (c). At the third step, the ALJ must decide whether the claimant's severe impairments meet or medically equal a listed impairment. Id. § 416.920(a)(4)(iii), (d). Where … the ALJ finds that the claimant's severe impairments do not meet or equal a listed impairment, the ALJ must then determine, at step four, whether she has the residual functional capacity (“RFC”) to perform [his] past relevant work. Id. § 416.920(a)(4)(iv), (e)-(f). “[RFC] is an assessment … of a claimant's remaining ability to do work despite [her] impairments.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Finally, if the claimant cannot perform her past relevant work, the ALJ must then determine, at step five, whether the claimant's RFC permits her to perform other work that exists in the national economy. 20 C.F.R. § 416.920(a)(4)(v), (g).

Adams v. Comm'r, Soc. Sec. Admin., 586 F. App'x 531, 533 (11th Cir. 2014).[3]The claimant bears the burden of proving that he is disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The regulations “place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work.” Id.


         Black was born in 1972 and has an 8th grade education. (R. 34, 150). He has past relevant work experience as a commercial cleaner, kitchen helper, auto mechanic, and chauffer. (R. 34, 59).

         On January 3, 2013, Black filed his current claim for SSI, alleging onset of disability due to depression, bipolar disorder, high cholesterol, short term memory problems, and chronic obstructive pulmonary disease (“COPD”).[4] (R. 64, 149). Following a hearing, the ALJ found that Black has the following severe impairments: COPD with a history of tobacco abuse, bipolar disorder, anxiety disorder, and personality disorder. (R. 22). He also found that Black 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. pt. 404, subpt. P, app. 1. (R. 24). The ALJ determined that Black's impairments could reasonably be expected to cause some of his alleged symptoms, but that Black's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely credible. (R 33).

         The ALJ found that Black had the residual functional capacity (“RFC”) to perform light work with multiple restrictions, including (among other restrictions) being limited to the performance of repetitive and routine tasks; work requiring little to no judgment and no more than simple work-related decisions; occasional and casual interaction with the general public, coworkers, and supervisors; and work dealing primarily with things as opposed to people. (R. 32). Based on that RFC finding and testimony from a vocational expert, the ALJ determined that Black could not perform any of his past relevant work. (Id.) However, based on Black's age, education, work experience, and RFC, the ALJ found that jobs existed in significant numbers in the national economy that Black could perform, including production assembler, small products assembler, and packing line worker. (R. 34-35). Accordingly, the ALJ determined Black had not been under a disability since January 3, 2013. (R. 35).


         Black sought Appeals Council review of the ALJ's decision. (R. 16). His counsel submitted three briefs to the Appeals Council. (R. 212-67). The second brief, dated November 12, 2015, was submitted with “new and material evidence” consisting of a Psychological Evaluation of Black performed by Dr. David Wilson on August 13, 2015, and medical records from CED Mental Health Center dated August 4 through August 19, 2014. (R. 248).

         The Appeals Council denied Black's request for review. (R. 1-5). In its written denial, the Appeals Council stated: “[W]e considered the reasons you disagree with [the ALJ's] decision and the additional evidence listed on the enclosed Order of Appeals Council. … We found that this information does not provide a basis for changing the [ALJ's] decision.” (R. 2). The three briefs submitted by Black's counsel are listed as exhibits on the Appeals Council's order and are part of the administrative record. (R. 5, 212-67). Dr. Wilson's Psychological Evaluation of Black and the new CED records, however, are not listed on the order and are not included in the record.


         Black argues five grounds of error: (1) the Appeals Council refused to consider Dr. Wilson's Psychological Evaluation because it was dated after the date of the ALJ's decision; (2) the ALJ failed to give proper weight to the opinion of Dr. Richard Grant, a treating psychiatrist; (3) the ALJ substituted his own opinion for that of Dr. Robert Storjohann, an examining psychologist; (4) the ALJ failed to state adequate reasons for finding him not credible; and (5) the ALJ failed to assess the intensity and persistence of his symptoms pursuant to Social Security Ruling (SSR) 16-3p. (Doc. 10). Separately, Black has moved for a remand of the case pursuant to 42 U.S.C. § 405(g) to require the Appeals Council to consider the submissions it omitted from the administrative record, specifically Dr. Wilson's Psychological Evaluation and the records from CED Mental Health.[5] (Doc. 14). Each argument will be addressed below.

         A. Dr. Wilson's Psychological Evaluation

         Black argues that the Appeals Council refused to consider Dr. Wilson's Psychological Evaluation because it was dated after the date of the ALJ's decision. He contends that this “new evidence” establishes his eligibility for benefits under Listing 12.05C.[6] (Doc. 10 at 21-33). The Commissioner responds that the Appeals Council did consider Dr. Wilson's Psychological Evaluation and that, even with this new evidence, Black has not established his eligibility for benefits under Listing 12.05C. (Doc. 13 at 7-14). The court agrees with the Commissioner.

         Dr. Wilson conducted his psychological evaluation of Black on August 13, 2015, five months after the ALJ issued his decision. (Doc. 14-1). In addition to meeting with Black, Dr. Wilson reviewed a number of Black's medical records, including a Mental Health Source Statement prepared by Dr. Richard Grant on November 17, 2014; CED records from December 20, 2007 through June 24, 2014; a Consultative Examination performed by Dr. Jack Bentley on January 17, 2008; Quality of Life records from April 22, 2008 through July 23, 2013; a Consultative Examination performed by Dr. Robert Storjohann on July 28, 2010; and a Consultative Examination performed by Dr. June Nichols on April 30, 2013. (Doc. 14-1 at 1). Of particular significance here, Dr. Wilson tested Black's intelligence using the Wechsler Adult Intelligence Scale test (the WAIS-IV). Black received a full scale IQ score of 70, which placed him “in the low end of the Borderline Range of Intellectual Functioning.” (Id. at 5). Dr. Wilson noted that Black “had deficits in all areas, but … had extremely deficient Working Memory and severely deficient Processing Speed.” (Id.) (emphasis omitted).

         As noted, Black's counsel submitted a copy of Dr. Wilson's Psychological Evaluation along with her second brief to the Appeals Council. (See R. 248). When a claimant presents evidence after the ALJ's decision, as Black has done here, the Appeals Council must consider the evidence if it is “new, material, and chronologically relevant.” Beavers v. Soc. Sec. Admin, 601 F. App'x 818, 821 (11th Cir. 2015) (citing 20 C.F.R. § 404.970(b)). The new evidence must not be cumulative of other evidence in the record. Id. The Appeals Council must grant the claimant's petition for review if the ALJ's “action, findings, or conclusion is contrary to the weight of the evidence, ” including the new evidence. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007) (quotation marks omitted).

         As Black has accurately observed, the Appeals Council omitted Dr. Wilson's Psychological Evaluation from the administrative record.[7] Relying on Washington v. Soc. Sec. Admin., 806 F.3d 1317 (11th Cir. 2015), Black contends that the Appeals Council erred when it “refused to review” Dr. Wilson's evaluation “solely because it was dated after the ALJ decision without considering whether the evaluation was chronologically relevant.” (Doc. 10 at 21). Black's reliance on Washington is misplaced. In Washington, the Eleventh Circuit determined that new evidence a claimant submitted to the Appeals Council was ‚Äúchronologically relevant‚ÄĚ even though the evidence was based on a psychological examination of the claimant that was ...

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