United States District Court, N.D. Alabama, Middle Division
E. Ott, Chief United States Magistrate Judge.
Linda Tomlin Johnson appeals from the decision of the
Commissioner of the Social Security Administration (the
“Commissioner”) denying her application for
disability insurance benefits (“DIB”) under the
Social Security Act (“SSA”). (Doc.
Johnson timely pursued and exhausted her administrative
remedies, and the Commissioner's decision is ripe for
review pursuant to 42 U.S.C. § 405(g). For the reasons
discussed below, the court finds that the Commissioner's
decision is due to be affirmed.
was sixty years old at the time of the decision. (R. 20,
95-96).She graduated from high school and has past
work experience as a waitress. (R. 121-22, 288). She alleges
disability based on cellulitis, anxiety, abdominal pain, an
irregular heartbeat, and flesh-eating bacteria. (R. 287).
protectively filed an application for a period of disability
and DIB on May 5, 2015, alleging that she became disabled on
April 29, 2015. (R. 11, 154, 243-46). Her application was
denied initially, (R. 154), and Johnson requested a hearing
before an Administrative Law Judge (“ALJ”), (R.
178). A video hearing was held on August 9, 2017. (R.
89-123). Following the hearing, the ALJ denied her claim. (R.
8-25). Johnson appealed the decision to the Appeals Council
(“AC”). After reviewing the record, the AC
declined to further review the ALJ's decision. (R. 1-7).
That decision became the final decision of the Commissioner
and is now ripe for review. See Frye v. Massanari,
209 F.Supp.2d 1246, 1251 (N.D. Ala. 2001) (citing Falge
v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)).
Statutory and Regulatory Framework
establish her eligibility for disability benefits, 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 twelve months.” 42
U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see
also 20 C.F.R. § 404.1509. The Social Security
Administration employs a five-step sequential analysis to
determine an individual's eligibility for disability
benefits. 20 C.F.R. § 404.1520(a).
the Commissioner must determine whether the claimant is
engaged in “substantial gainful activity.”
Id. “Under the first step, the claimant has
the burden to show that he is not currently engaged in
substantial gainful activity.” Reynolds-Buckley v.
Comm'r of Soc. Sec., 457 Fed.Appx. 862, 863
(11th Cir. 2012). If the claimant is engaged in substantial
gainful activity, the Commissioner will determine the
claimant is not disabled. 20 C.F.R. § 1520(a)(4)(i). At
the first step, the ALJ determined Johnson has not engaged in
substantial gainful activity since April 29, 2015, the
alleged onset date. (R. 13).
claimant is not engaged in substantial gainful activity, the
Commissioner must next determine whether the claimant suffers
from a severe physical or mental impairment or combination of
impairments that has lasted or is expected to last for a
continuous period of at least twelve months. 20 C.F.R. §
1520(a)(4)(ii). An impairment “must result from
anatomical, physiological, or psychological abnormalities
which can be shown by medically acceptable clinical and
laboratory diagnostic techniques.” See Id. at
§ 404.1521. Furthermore, it “must be established
by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by [the claimant's]
statement of symptoms.” Id.; see also
42 U.S.C. § 423(d)(3). An impairment is severe if it
“significantly limit[s the claimant's] physical or
mental ability to do basic work activities.” 20 C.F.R.
§ 404.1522(a). “[A]n impairment can be considered
as not severe only if it is a slight abnormality which has
such a minimal effect on the individual that it would not be
expected to interfere with the individual's ability to
work, irrespective of age, education, or work
experience.” Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984); see also 20 C.F.R. §
404.1521. A claimant may be found disabled based on a
combination of impairments, even though none of his
individual impairments alone is disabling. 20 C.F.R. §
404.1520. The claimant bears the burden of providing medical
evidence demonstrating an impairment and its severity.
Id. at § 404.1521. If the claimant does not
have a severe impairment or combination of impairments, the
Commissioner will determine the claimant is not disabled.
Id. at § 404.1520(a)(4)(ii). At the second
step, the ALJ determined Johnson has the following severe
impairments: degenerative joint disease of the cervical
spine, degenerative disc disease of lumbar and thoracic
spine, and obesity. (R. 14). The ALJ specifically found her
anxiety, mitral valve prolapse, and cellulitis with status
post septicemia to be nonsevere. (R. 14-16).
claimant has a severe impairment or combination of
impairments, the Commissioner must then determine whether the
impairment meets or equals one of the “Listings”
found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§§ 404.1520(a)(4)(iii) & (d); 404.1525;
404.1526. The claimant bears the burden of proving his or her
impairment meets or equals one of the Listings.
Reynolds-Buckley, 457 Fed.Appx. at 863. If the
claimant's impairment meets or equals one of the
Listings, the Commissioner will determine the claimant is
disabled. 20 C.F.R § 404.1520(a)(4)(iii) and (d). At the
third step, the ALJ determined Johnson did not have an
impairment or combination of impairments that meet or
medically equal the severity of one of the Listings. (R. 16).
claimant's impairment does not meet or equal one of the
Listings, the Commissioner must determine the claimant's
residual functional capacity (“RFC”) before
proceeding to the fourth step. 20 C.F.R. § 404.1520(e).
A claimant's RFC is the most she can do despite his
impairment. See Id. at § 404.1520. At the
fourth step, the Commissioner will compare the assessment of
the claimant's RFC with the physical and mental demands
of the claimant's past relevant work. Id. at
§ 404.1520(a)(4)(iv). “Past relevant work is work
that [the claimant] [has] done within the past 15 years, that
was substantial gainful activity, and that lasted long enough
for [the claimant] to learn to do it.” Id.
§ 404.1560(b)(1). The claimant bears the burden of
proving that her impairment prevents him from performing her
past relevant work. Reynolds-Buckley, 457 Fed.Appx.
at 863. If the claimant is capable of performing her past
relevant work, the Commissioner will determine the claimant
is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv) &
proceeding to the fourth step, the ALJ determined Johnson has
the RFC to perform a limited range of light work as defined
in 20 C.F.R. § 404.1567(b). (R. at 16-19). More
specifically, the ALJ found Johnson had the following
limitations with regard to light work:
the claimant can occasionally climb ramps and stairs, stoop,
kneel, and crouch. She should never climb ladders, ropes or
scaffolds, nor should she crawl. The claimant can have only
occasional exposure to vibration as well as hazards such as
unprotected heights and dangerous machinery.
(Id.). At the fourth step, the ALJ determined
Johnson was capable of performing her past relevant work as a
waitress. (Id. at 19-20). With this determination,
the inquiry ended. Id. at § 404.1520(a)(4)(iv).
The ALJ found Johnson had not been under a disability as
defined by the SSA since April 29, 2015. (R. 20).
Standard of Review
of the Commissioner's decision is limited to a
determination whether that decision is supported by
substantial evidence and whether the Commissioner applied
correct legal standards. Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). A district
court must review the Commissioner's findings of fact
with deference and may not reconsider the facts, reevaluate
the evidence, or substitute its judgment for that of the
Commissioner. Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1260 (11th Cir. 2007); Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Rather, a district court must “scrutinize the record as
a whole to determine whether the decision reached is
reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983) (internal citations omitted). 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. A district court
must uphold factual findings supported by substantial
evidence, even if the preponderance of the evidence is
against those findings. Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
district court reviews the Commissioner's legal
conclusions de novo. Davis v. Shalala, 985
F.2d 528, 531 (11th Cir. 1993). “The
[Commissioner's] failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted
mandates reversal.” Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
makes four arguments in favor of remand. First, she contends
the Appeals Council failed to review new, material, and
chronologically relevant evidence from her treating
physician. Second, Johnson asserts that the ALJ failed to
show good cause for rejecting the opinion of her treating
physician. Third, Johnson argues the ALJ's finding that
she can perform her past relevant work is not supported by
substantial evidence and is not in accordance with proper
legal standards. Finally, she contends that the ALJ did not
comply with SSR 96-8P in formulating her RFC. The court
addresses each argument below.
Evidence Submitted to Appeals Council
first argues that the Appeals Council failed to adequately
consider the additional evidence she submitted along with her
request for review. (Doc. 12 at 13-22). Johnson lists this
evidence as including medical records from Riverview Regional
Medical Center dated September 3, 2015, Dr. Henry Born's
Clinic dated November 18, 2015 to April 11, 2018, and Gadsden
Regional Medical Center dated March 15, 2017. (Id.
at 13). She also complains that the Council failed to review
and consider the medical source statements from Dr. Born
dated April 11, 2018. (Id.). The Commissioner argues
that the decision is due to be affirmed because the Council
did not err in failing to consider the evidence because the
medical source statements did not create a reasonable
probability of changing the outcome of the ALJ's
decision. (Doc. 18 at 4-11). The Commissioner further argues
that because Johnson has not challenged the Council's
conclusions that the other medical records would not change
the outcome of the decision, this aspect of the claim is
abandoned. (Id. at 5, n.2). The court agrees with
general matter, a claimant is entitled to present evidence at
each stage of the administrative process. Hargress v.
Comm'r of Soc. Sec., 883 F.3d 1302, 1308 (11th Cir.
2018). If a claimant presents evidence after the ALJ's
decision, the Appeals Council must consider it if it is new,
material, and chronologically relevant. See Washington v.
Soc. Sec. Admin., 806 F.3d 1317, 1320 (11th Cir. 2015);
Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d
1253, 1261 (11th Cir. 2007). Evidence is material if a
reasonable possibility exists that the evidence would change
the administrative result. Washington, 806 F.3d at
1321. New evidence is chronologically relevant if it
“relate[s] to the period on or before the date of the
[ALJ's] hearing decision.” 20 C.F.R. §
404.970(c), 416.1470(c) (2016). 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.
Ingram, 496 F.3d at 1261 (quotation marks omitted).
issue here are two forms completed by Johnson's treating
physician, Dr. Henry Born, that Johnson submitted to the
Appeals Council. (R. 2, 87-88). The first is a
“physical capacity form, ” dated April 11, 2018.
(R. 87). The second is a “mental health source
statement, ” also dated April 11, 2018. (R. 88). The
Appeals Council concluded that this new evidence did not
relate to the period at issue, and, therefore, it did not
affect the decision. (R. 2). The court first addresses the
physical capacity form and then moves on to the mental health
one-page physical capacity form describes Johnson's
conditions as “degenerative arthritis, mitral valve
prolapse, [and] anxiety.” (R. 87). The form describes
the side effects Johnson experiences from her medications as
“fatigue” and “lethargy.”
(Id.). As far as limitations, Dr. Born circled the
following on the form concerning her physical capacities:
Johnson can sit for two hours, stand for less than 30
minutes, and would be expected to lay down, sleep or sit with
legs propped for two hours in an 8-hour day. (Id.).
It further states Johnson would be expected to be off task
30% in an 8-hour day and would miss 6 days in a 30-day period
due to physical symptoms. (Id.). The form states the
limitations exist back to April 15, 2015, and are expected to
last twelve or more months. (Id.).
conceded by the Commissioner, “Dr. Born's opinion
regarding Plaintiff['s] physical limitations is arguably
chronologically relevant” because the form stated the
limitation applied to the time before the ALJ's decision
and Dr. Born treated Plaintiff during the relevant time.
(Doc. 18 at 6). The Commissioner argues, however, that the
conclusion by the Appeals Council is essentially harmless
error because Dr. Born's opinion concerning Johnson's