United States District Court, N.D. Alabama, Middle Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
Sherry Slayton Tays appeals the Social Security
Commissioner's denial of her claim for a period of
disability and disability insurance benefits. On November 26,
2018, the magistrate judge entered a report in which he
recommended that the court affirm the Commissioner's
decision. (Doc. 16). On December 3, 2018, Ms. Tays filed
objections to the report and recommendation. (Doc. 17).
Pursuantto 28 U.S.C. § 636(b)(1)(C), this case is before
the court for a review of Ms. Tays's objections to the
report and recommendation.
Tays makes two objections to the magistrate judge's
report and recommendation. First, Ms. Tays objects to the
magistrate judge's finding that a November 5, 2016
physician statement from Dr. Huma Khusro is chronically
irrelevant.Second, Ms. Tays objects to the magistrate
judge's conclusion that the ALJ gave proper weight to
consulting physician Dr. Robert Estock. The court examines
each objection below.
Dr. Khusro's November 5, 2016 Physician
issued her decision on October 20, 2016. (R. 21-30). On
December 6, 2016, Ms. Tays submitted evidence that post-dates
the ALJ's decision, including a November 5, 2016
physician statement from Dr. Khusro. (R. 15-16). The Appeals
Council held that Dr. Khusro's statement was not
chronologically relevant because it did not relate to the
period at issue. (R. 2). The magistrate judge's report
recommends affirming the decision, explaining that "the
Appeals Council concluded that the November 5, 2016,
statement from Dr. Khusro reflected a time period later than
that considered by the ALJ," and "[t]he Appeals
Council did not need to give a more detailed explanation or
to address each piece of evidence individually." (Doc.
16 at 30 citing Mitchell v. Commissioner, Social Security
Administration, 771F.3d 780 (11th Cir. 2014)).
Tays argues that the magistrate judge's recommendation
should not be adopted because Mitchell does not
control the analysis. The court agrees that Mitchell
does not control. In Mitchell, the Appeals Council
considered the additional evidence that the claimant
presented regarding his claim but found that "the
information did not provide a basis for changing the
ALJ's decision." Mitchell, 771 F.3d at 782.
On appeal, the claimant argued that the Appeals Council
"was required to provide a discussion of the new
evidence" submitted to it. Id. The Eleventh
Circuit found that there was no reason to doubt the Appeals
Council's statement that it considered the additional
evidence, and the Appeals Council was not required "to
provide a detailed discussion of [the] new evidence when
denying a request for review." Id. at 783.
does not apply here for two reasons. First, there is no
indication that the Appeals Council considered Dr.
Khusro's statement. Second, Ms. Tays's challenge on
appeal with respect to the statement is not that the Appeals
Council was required to provide a discussion of this evidence
but rather that the Appeals Council erroneously failed to
consider the statement because it was not chronologically
the Appeals Council did not consider Dr. Khusro's
statement, the court must determine whether the Appeals
Council erred in failing to consider the
evidence. Washington v. Soc. Sec.
Admin., Comm 'r, 806 F.3d
1317, 1320-21 (11th Cir. 2015). '"With a
few exceptions, a claimant is allowed to present new evidence
at each stage of the administrative process,' including
before the Appeals Council." Washington
v. Soc. Sec. Admin.,
Comm'r, 806 F.3d 1317, 1320
(11th Cir. 2015) (quoting Ingram v. Soc. Sec.
Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)). The
Appeals Council must review evidence that is new, material,
and chronologically relevant. Ingram, 496 F.3d at
1261. The court reviews de novo whether supplemental evidence
is new, material, and chronologically relevant.
Washington, 806 F.3d at 1321.
Appeals Council did not commit legal error when it refused to
consider Dr. Khusro's statement because the statement is
not chronologically relevant. Evidence is chronologically
relevant if it relates to the period on or before of the AL
J's decision. 2OC.F.R. § 404.970(b). A medical
evaluation conducted after the ALJ's decision may be
chronologically relevant if it pertains to conditions that
preexisted the ALJ's opinion. Washington, 806
F.3d at 1322-23 (citing Boyd v. Heckler, 704 F.2d
1207, 1211 (11th Cir. 1983)). In Washington, a
consultative examiner provided an opinion regarding a
claimant's mental condition. Although the opinion
post-dated the ALJ's decision, the Eleventh Circuit found
that the opinion was chronologically relevant because the
examiner indicated in his report that he based his opinion on
the claimant's reports that "he had experienced
hallucinations throughout this life" and on the state of
the claimant's cognitive abilities before the ALJ issued
a decision. Washington, 806 F.3d at 1322. In
addition, the consultative examiner reviewed the
claimant's "mental health treatment records from the
period before the ALJ's decision reflecting that [the
claimant] repeatedly reported experiencing auditory and
visual hallucinations." Washington, 806 F.3d at
Khusro's statement is unlike the consultative
examiner's report in Washington. Dr. Khusro
completed a pre-printed form in which she noted that Ms.
Tays's bipolar disorder rendered her unable to work. (R.
16). Although the statement explains that Ms. Tays was
diagnosed with bipolar disorder in 2007, the statement
expressly states that Ms. Tays is unable to work because of
her "current condition." (R. 16). The statement
does not demonstrate that Dr. Khusro relied on reports that
Ms. Tays experienced disabling symptoms during the relevant
time period or that Dr. Khusro reviewed treatment records
from before the ALJ's decision that speak to Ms.
Tays's bipolar disorder. (R. 16). Because Dr.
Khusro's statement "was not chronologically
relevant, the Appeals Council was not required to consider
it." Hargress v. Soc. Sec. Admin., Comm 'r,
874 F.3d 1284, 1291 (11th Cir. 2017).
Dr. Khusro's statement were chronologically relevant,
remand is not required because the statement is not material.
For supplemental evidence to be material, the evidence must
be "relevant and probative so that there is a reasonable
possibility that it would change the administrative
result." Hyde v. Bowen, 823 F.2d 456, 459 (11th
Cir. 1987). Statements that a claimant is
"disabled" or "unable to work" are not
medical opinions entitled to any special deference.
See 20 C.F.R. § 404.1527(d)(1). Dr.
Khusro's November 5, 2016 conclusory statement that Ms.
Tays is permanently disabled contains no objective medical
findings or other evidence that undermines the ALJ's
determination based on her review of the medical evidence as
Dr. Khusro's November 5, 2016 statement is neither
chronologically relevant nor material, the Appeals Council
did not commit reversible error by failing to consider the
Dr. Estock's Opinion
Tays objects to the magistrate judge's finding that the
ALJ "provided proper clarity in her reasoning in
adopting most of Dr. Estock's opinion." (Doc. 17 at
11) (citing Doc. 16 at 24). "[T]he ALJ must state with
particularity the weight given to different medical opinions
and the reasons therefor." Winschel v. Comm 'r
of Soc. Sec,631 F.3d 1176, 1179 (11th Cir. 2011).
"In the absence of such a statement, it is impossible
for a reviewing court to determine whether the ultimate
decision on the merits of the claim is rational and supported
by substantial evidence." Id. (internal
quotations omitted). Thus, "when the ALJ fails to state
with at least some measure of ...