United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
Melinda Kay Rothschild applied for supplemental security
income under the Social Security Act, alleging a disability
onset date of September 11, 2005. R. 147-52. She later
amended her onset date to July 30, 2014. R. 45. At the
administrative level, the Commissioner (the
“Commissioner”) of the Social Security
Administration (“SSA”) denied Rothschild's
claim. R. 78-81. Rothschild requested a hearing before an
Administrative Law Judge (“ALJ”). R. 75-77. The
ALJ held a hearing and subsequently found Rothschild not to
be disabled. R. 33 & 41-58. Rothschild requested that the
Appeals Council review the ALJ's decision and the Appeals
Council denied her request. R. 1. The Commissioner's
final decision is subject to judicial review. 42 U.S.C.
§§ 405(g) & 1383(c)(3). Rothschild subsequently
filed her complaint seeking review in this court of the
Commissioner's final decision.
to 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal
Rules of Civil Procedure, the parties have consented to the
full jurisdiction of the undersigned United States Magistrate
Judge. Doc. 8. Based upon a review of the evidentiary record,
the parties' briefs, and the relevant authority, the
court finds that the Commissioner's decision is due to be
REVERSED and REMANDED for the reasons set out below.
STANDARD OF REVIEW
court reviews a Social Security appeal to determine whether
the Commissioner's decision “is supported by
substantial evidence and based upon proper legal
standards.” Lewis v. Callahan, 125 F.3d 1436,
1439 (11th Cir. 1997). The court will reverse the
Commissioner's decision if it is convinced that the
decision was not supported by substantial evidence or that
the proper legal standards were not applied. Carnes v.
Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). The
court “may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the
Commissioner, ” but rather it “must defer to the
Commissioner's decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1997) (internal quotation marks and alterations
omitted). “Even if the evidence preponderates against
the [Commisioner's] factual findings, [the court] must
affirm if the decision reached is supported by substantial
evidence.” Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). Moreover, reversal is not warranted
even if the court itself would have reached a result contrary
to that of the factfinder. See Edwards v. Sullivan,
937 F.2d 580, 584 n.3 (11th Cir. 1991).
substantial evidence standard is met “if a reasonable
person would accept the evidence in the record as adequate to
support the challenged conclusion.” Holladay v.
Bowen, 848 F.2d 1206, 1208 (11th Cir. 1988) (internal
quotation marks omitted) (quoting Boyd v. Heckler,
704 F.2d 1207, 1209 (11th Cir. 1983)). The requisite
evidentiary showing has been described as “more than a
scintilla, but less than a preponderance.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983). The court must scrutinize the entire record to
determine the reasonableness of the decision reached and
cannot “act as [an] automaton in reviewing the
[Commissioner's] decision.” Hale v. Bowen,
831 F.2d 1007, 1010 (11th Cir. 1987). Thus, the court must
consider evidence both favorable and unfavorable to the
Commissioner's decision. Swindle v. Sullivan,
914 F.2d 222, 225 (11th Cir. 1990).
court will reverse the Commissioner's decision on plenary
review if the decision applies incorrect law or fails to
provide the court with sufficient reasoning to determine that
the Commissioner properly applied the law. Grant v.
Astrue, 255 Fed.Appx. 374, 375-76 (11th Cir. 2007)
(citing Keeton v. Dep't of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). There is
no presumption that the Commissioner's conclusions of law
are valid. Id.
STATUTORY AND REGULATORY FRAMEWORK
qualify 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 12 months.” 42 U.S.C. §
423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental
impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities
which are demonstrated by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §
423(d)(3). A claimant bears the burden of proving that he is
disabled, and he is responsible for producing evidence to
support his claim. See Ellison v. Barnhart, 355 F.3d
1272, 1276 (11th Cir. 2003) (per curiam).
determination of disability under the Social Security Act
requires a five-step analysis. 20 C.F.R. § 404.1520(a).
The Commissioner must determine in sequence:
(1) Is the claimant performing substantial gainful activity?
(2) Does she have a severe impairment?
(3) Does she have a severe impairment that equals one of the
specific impairments set forth in 20 C.F.R. Pt. 404, Sub pt.
P, App. 1?
(4) Is the claimant able to perform past relevant work?
(5) Is the claimant unable to perform other work given her
residual functional capacity (“RFC”), age,
education, and work experience?
See Frame v. Comm'r, Soc. Sec. Admin., 596
Fed.Appx. 908, 910 (11th Cir. 2015); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).
“An affirmative answer to any of the above questions
leads either to the next question, or, on steps three and
five, to a finding of disability. A negative answer to any
question, other than step three, leads to a determination of
‘not disabled.'” McDaniel v. Bowen,
800 F.2d 1026, 1030 (11th Cir. 1986) (quoting 20 C.F.R.
§ 416.920(a)-(f)). “Once the finding is made that
a claimant cannot return to prior work the burden of proof
shifts to the [Commissioner] to show other work the claimant
can do.” Foote v. Chater, 67 F.3d 1553, 1559
(11th Cir. 1995) (citing Gibson v. Heckler, 762 F.2d
1516 (11th Cir. 1985)).
was 49 years old when she applied for Supplemental Security
Income and 52 years old at the time of the ALJ's
decision. R. 147. Rothschild has her GED, and she previously
worked as a waitress. R. 206. She has alleged that she
suffers from the disabilities of bipolar disorder,
depression, migraines, and rheumatoid arthritis. R. 205.
February 14, 2017 the ALJ held a hearing, and on June 1, 2017
the ALJ found Rothschild not to be disabled and denied the
claim. R. 20, 33 & 43. In her decision, the ALJ
determined that Rothschild does not have an impairment or
combination of impairments that meets or equals the severity
of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. R. 26. Examining Listing 12.04, the
ALJ determined that Rothschild's “mental
impairments do not cause at least two ‘marked'
limitations or one ‘extreme' limitation, ”
and thus “the ‘paragraph B' criteria are not
satisfied.” R. 27. The ALJ also found that the
“evidence fails to establish the presence of the
‘paragraph C' criteria.” R.
27. Rothschild requested review of the
ALJ's decision before the Appeals Council and presented
new evidence in the form of records from Gadsden
Psychological Services, L.L.C., including a psychological
evaluation by Dr. David Wilson dated August 28, 2017. R. 1
& 7-11. On February 8, 2018, the Appeals Council denied
review stating that it “found no reason under [its]
rules to review the [ALJ]'s decision.” R. 1. On
that date, the ALJ's decision became the final decision
of the Commissioner. On April 12, 2018, Rothschild initiated
this action. Doc. 1.
presents three issues to this court. She argues that (1) the
Appeals Council erred when it failed to consider new evidence
and review the ALJ's decision; (2) the ALJ failed to
apply Medical Vocational Guideline 201.12; and (3) the denial
of benefits was not based on substantial evidence because the
ALJ did not consider the new evidence in considering whether
Rothschild meets Listings 12.04 and 12.06, and the ALJ's
hypothetical question did not accurately encompass
Rothschild's RCF and limitations. R. 13-33. The court
agrees with Rothschild's first contention.
New Evidence Submitted to Appeals Council
first argues that “[t]he Appeals Council failed to
review new, material, and chronologically relevant, post
hearing submissions because the records were dated after the
date of the ALJ decision, without considering if the
submissions were chronologically relevant.” Doc. 10 at
13 (omitting emphasis and correcting capitalization). The
Commissioner responds that “[t]he Appeals Council did
not err when it declined to consider Dr. Wilson's . . .
evaluation because there was not a reasonable probability
that the evaluation would change the outcome of the
[ALJ]'s decision.” Doc. 11 at 5.
a few exceptions, the claimant is allowed to present new
evidence at each stage of this administrative process,
” including before the Appeals Council. Ingram v.
Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1261
(11th Cir. 2007) (citing 20 C.F.R. 404.900(b)). The Appeals
Council must review a case if it receives additional evidence
that is new, material, and chronologically relevant. 20
C.F.R. § 404.970(a)(5); Ingram, 496 F.3d at
1261. “[W]hether evidence meets the new, material, and
chronologically relevant standard ‘is a question of law
subject to [the court's] de novo review, '” and
“when the Appeals Council erroneously refuses to
consider evidence, it commits legal error and remand is
appropriate.” Washington v. Soc. Sec. Admin.,
Comm'r, 806 F.3d 1317, 1321 (11th Cir. 2015)
(quoting Threet v. Barnhart, 353 F.3d 1185, 1191
(10th Cir. 2003)). New noncumulative evidence is evidence
that was not previously presented to the ALJ and “found
to be wanting.” Hyde v. Bowen, 823 F.2d 456,
459 (11th Cir. 1987). Evidence is material when “there
is a reasonable possibility that the new evidence would
change the administrative outcome.” Id.
is chronologically relevant if it ‘relates to the
period on or before the date of the [ALJ] hearing
decision.'” McGriff v. Comm'r, Soc. Sec.
Admin., 654 Fed.Appx. 469, 472 (11th Cir. 2016) (quoting
20 C.F.R. §§ 404.970(b), 416.1470(b)); see also
Washington, 806 F.3d at 1323 (holding that a
physician's opinion subsequent to the ALJ's decision
could be chronologically relevant even though the physician
“never explicitly stated that his opinions related back
to the date of the ALJ's decision”). Even records
that postdate the ALJ's decision may be chronologically
relevant when they assess conditions existing prior to the
decision, the physician evaluated medical records from before
the ALJ's decision, and there is no evidence of
deterioration. Washington, 806 F.3d at 1322.
has established that Dr. Wilson's report is new because
the evidence did not exist at the time of the ALJ's
decision and the report was not previously in the record
reviewed by the ALJ. See Washington, 806 F.3d at
1321 n.6 (finding that physician's opinions not
previously included in the record were new and
noncumulative). And Dr. Wilson performed a reading and
comprehension test which is not reflected elsewhere in the
record. R. 10. Therefore, Dr. Wilson's report is
addition, Rothschild argues that Dr. Wilson's report is
chronologically relevant, and the Commissioner does not
appear to contest chronological relevance. See Doc.
11 at 5-14. Dr. Wilson reviewed Rothschild's medical and
psychiatric records predating the ALJ's decision and
Rothschild told Dr. Wilson about symptoms throughout her
life. R. 7-9. In addition, Dr. Wilson's opinion relates
back to a period before the ALJ's decision. R. 10-11. For
these reasons, the court finds that Rothschild has
established that Dr. Wilson's evaluation is
chronologically relevant. See Washington, 806 F.3d
at 1322 (holding that physician's opinion based on
post-decision examination was chronologically relevant where
physician understood the claimant had symptoms prior to the
ALJ's decision, reviewed the claimant's pre-decision
records, and indicated that his opinions related back to the
period before the ALJ's decision).
Dr. Wilson's report is material because there is a
reasonable probability that the Commissioner's
consideration of the report would change the administrative
outcome. Rothschild contends that Dr. Wilson's report is
material because it is “consistent with medical records
of severe depression” and would establish that
Rothschild had an impairment that meets Listings 12.04 and
12.06. Doc. 10 at 23. The Commissioner responds that substantial
evidence supports the ALJ's findings that Rothschild did
not satisfy the criteria of Listing 12.04 or 12.06. Doc. 11
at 10 & 14. For the following reasons, the court finds
that Dr. Wilson's report is material.
Wilson diagnosed Rothschild with “Major Depressive
Disorder, Recurrent (moderate Panic Disorder).” R. 11.
He explained that Rothschild would be “very likely to
have a great deal of anxiety” maintaining a job. R. 11.
He diagnosed Rothschild with “depression and anxiety,
and she also has cognitive deficits and reads at ¶ 5th
grade level.” R. 11. He found that Rothschild presented
“indicators of ADHD, ” had “problems with
impulsivity” and “difficulty focusing, ”
and “is not capable of managing benefits.” R. 11.
He concluded that Rothschild would have “major problems
in any work environment” and “[h]er ability to
withstand the pressures of day to day occupational
functioning is highly impaired.” R. 11.
Wilson also checked off symptoms on a form indicating that
Rothschild exhibited depressive syndrome characterized by:
“Depressed mood, ” “Diminished interest in
almost all activities, ” “Appetite disturbance
with change in weight, ” “Sleep disturbance,
” “Observable psychomotor agitation or
retardation, ” “Decreased energy, ”
“Feelings of guilt or worthlessness, ”
“Difficulty concentrating or thinking, ”
“Marked restriction in ability to understand, remember,
or apply information, ” “Marked difficulties in
ability to interact with others, ” and “Marked
difficulties in ability to concentrate, persist, or maintain
pace.” R. 12. He also indicated that Rothschild
exhibited symptoms of an anxiety disorder characterized by
symptoms of “Restlessness, ” “Easily
fatigued, ” “Difficulty concentrating, ”
“Irritability, ” “Muscle tension, ”