Naish v. Berryhill

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On December 3, 2014, the claimant, Jeremy Dwayne Naish, protectively applied for disability and disability insurance benefits under Title II of the Social Security Act, as well as supplemental security income under Title XVI, because of tendonitis in the right Achilles tendon, reflex sympathetic dystrophy, obesity, panic disorder with agoraphobia, post-traumatic stress disorder, and major depressive disorder. The Commissioner denied the claims on April 29, 2015. The claimant timely requested a hearing before an Administrative Law Judge, who held a hearing on February 1, 2017. (R. 35; Doc. 1).

         In a decision dated March 16, 2017, the ALJ found the claimant not disabled within the meaning of the Social Security Act and, therefore, ineligible for disability, disability insurance benefits, and supplemental security income. The claimant filed a timely request for review of the ALJ's decision by the Appeals Council on March 28, 2017 and submitted new evidence of knee and low back pain to it. (R. 10-26).

         The Appeals Council denied the claimant's request for review on October 26, 2017, indicating that the new evidence submitted by the claimant on June 20, 2017 did not relate to the period at issue. Thus, the ALJ's decision became the final decision of the Commissioner. (R. 32-48, 6, 9-29, 1-4).

         The claimant has exhausted his 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 erred when it declined to review the claimant's new evidence.

         II. ISSUE PRESENTED^[1]

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

         III. STANDARD OF REVIEW

         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 his 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).

         IV. LEGAL STANDARD

         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 [his] report of symptoms during the relevant time period and there was no evidence of a decline in [his] condition since the ALJ's decision.” Ashley v. Comm'r of Soc. Sec. Admin., 707 Fed.Appx. 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 Fed.Appx. 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 thirty-six years of age and weighed slightly more than 300 pounds at the time of the ALJ's final decision; had completed high school; has past relevant work as a corrections officer, head corrections officer, manager of fast food service, and tool repair clerk; and alleges disability based on tendonitis of the right Achilles tendon, reflex sympathetic dystrophy, obesity, panic disorder with agoraphobia, post-traumatic stress disorder, major depressive disorder, and back pain. (R. 59-63, 68-71, 10-26; Doc. 1).

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

         On November 6, 2009, after the claimant failed a comprehensive course of conservative therapy including a boot, nonsteroidal anti-inflammatories, and stretching exercises, Dr. William Krauss performed surgery on the claimant to repair his Achilles tendon. The procedure included a right Achilles tendon debridement, right Strayer procedure, excision of Haglund's deformity, and detachment and reattachment of the right Achilles tendon. (R. 329).

         The claimant presented to Southlake Orthopaedics after experiencing prolonged burning, aching, and stabbing pain in his hand on February 1, 2013. He underwent various tests which showed electrophysiologic changes consistent with bilateral carpal tunnel syndrome. Dr. Ekkehard Bonatz eventually recommended surgery to alleviate the claimant's pain, but he declined because of a high deductible. (R. 623-25).

         On November 24, 2014, the claimant returned to Southlake Orthopaedics complaining of severe burning, aching, sharp, and throbbing pain in his right ankle. The claimant reported that he felt a pop in his ankle while walking up the stairs. He noted that the pain is aggravated by standing and walking and that he often wakes from his sleep because of it. He also mentioned an associated history of swelling, bruising, and range-of-movement limitations. Dr. Kraus diagnosed the claimant with a fractured osteophyte at the insertion of the Achilles tendon and placed him in a medical boot. The claimant returned six weeks later complaining that his symptoms had not improved. On January 16, 2015, Dr. Kraus performed a second surgery on the claimant's right Achilles tendon. The procedure included a right open Achilles ...