United States District Court, N.D. Alabama, Middle Division
E. Ott Chief United States Magistrate Judge.
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). 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.
January 3, 2013, Black filed an application for SSI, alleging
disability beginning November 24, 2010. (R. 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).
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).
STANDARD OF REVIEW
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.
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
STATUTORY AND REGULATORY FRAMEWORK
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. §
of disability under the Social Security Act requires a five
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).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.
FINDINGS OF THE ALJ
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,
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”). (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).
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.
APPEALS COUNCIL DECISION
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).
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
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. (Doc. 14). Each argument will be addressed
Dr. Wilson's Psychological Evaluation
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. (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.
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).
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).
Black has accurately observed, the Appeals Council omitted
Dr. Wilson's Psychological Evaluation from the
administrative record. 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 “chronologically
relevant” even though the evidence was based on a
psychological examination of the claimant that was ...