Barbara Green v. Social Security Administratio

Filing

Opinion issued by court as to Appellant Barbara Green. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16272
Non-Argument Calendar
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D.C. Docket No. 4:15-cv-01054-RDP

BARBARA GREEN,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 27, 2017)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Claimant Barbara Green appeals the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) decision denying her application for
disability insurance benefits. On appeal, Green argues that the Appeals Council
erred by denying her request for review of the ALJ’s denial of benefits without
considering her new evidence. She also challenges the ALJ’s determination that
her subjective complaints regarding the limiting effects of her impairments were
not entirely credible. After careful review, we affirm.
I.

BACKGROUND
In 2012, Green applied for disability insurance benefits with the Social

Security Administration. Alleging a disability onset date of September 10, 2010,
Green represented that she was disabled and unable to work due to high blood
pressure, fibromyalgia, arthritis, lupus, and panic and anxiety attacks. She was laid
off from her previous job because she was unable to keep up with the demand of
the production line and her medication affected her ability to concentrate. The
Commissioner of Social Security (“the Commissioner”) denied Green’s application
for benefits.
At a subsequent hearing before the ALJ, Green explained that she could not
work due to cancer, fibromyalgia, high blood pressure, depression, Lupus, and
panic and anxiety attacks. She testified that she has trouble sleeping and she
mostly watches television. She usually watches short films or reads magazines
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because her chemotherapy treatments had affected her short-term memory. She
does some light dusting but does not vacuum or sweep. She spends the majority of
her day lying down. She explained that she was laid off from her previous job
because she made a lot of mistakes and couldn’t keep up due to her medication.
The ALJ also heard testimony from a vocational expert. The vocational
expert explained that Green had past relevant work as a sewing machine operator,
a molder trimmer, a spinner, a cashier, a fast food worker, and a waitress. Based
on Green’s age, education, past work experience, and physical limitations, Green
would not be able to perform her past relevant work but would be capable of
performing work as a tagger, an inspector, and a garment folder. Those jobs would
be available with a sit/stand option. The ALJ asked whether there were any
sedentary jobs that would account for Green’s limitations. The vocational expert
stated that Green would be capable of performing the job of an addressing clerk, a
table worker, and an inspector.
Following the hearing, the ALJ issued a decision on November 22, 2013,
concluding that Green was not disabled for purposes of disability insurance
benefits. The ALJ determined that Green suffered from fibromyalgia, degenerative
disc disease cervical spine, obesity, hypertension, status post lumpectomy,
generalized anxiety disorder, and depression, but that these impairments did not
meet or equal any of the listed impairments in the Social Security Administration
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regulations. The ALJ further concluded that Green had the residual functional
capacity to perform sedentary work with additional limitations, including but not
limited to a sit/stand option at will, occasional climbing of stairs, balancing,
stooping, kneeling, crouching, and crawling, and never climbing ladders or
working at unprotected heights. Green was restricted to simple, routine, repetitive
tasks, as well as occasional interaction with the public and she required minimal
changes in the work setting. Based on this finding, in conjunction with the
Medical-Vocational Guidelines and the vocational expert’s testimony that an
individual with Green’s limitations could perform work as an addressing clerk,
table worker, and inspector, the ALJ concluded that jobs existed in significant
numbers in the national economy that Green could perform. Accordingly, the ALJ
determined that Green was not disabled.
Green thereafter sought review of the ALJ’s decision from the Appeals
Council. She submitted additional medical records dated between January 2014
and August 2014, as well as treatment notes from Dr. Wyndol Hamer, who she
began seeing for fibromyalgia and chronic pain in December 2013. The Appeals
Council denied Green’s request for review. The Appeals Council noted that
Green’s new evidence was dated after the ALJ’s November 2013 decision, and
therefore did not affect the decision regarding whether she was disabled beginning
on or before November 22, 2013.
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In June 2015, Green, represented by counsel, filed a complaint in the district
court challenging the ALJ’s denial of disability insurance benefits. She argued in
relevant part that the Appeals Council failed to adequately consider her new
evidence and that the ALJ’s credibility determination was not supported by
substantial evidence. The district court affirmed the Commissioner’s denial of
disability insurance benefits. This appeal followed.
II.

DISCUSSION
We review the ALJ’s decision for substantial evidence, but its application of

legal principles de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.”
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)
(quotations omitted). We may not reweigh the evidence and decide the facts anew,
and must defer to the ALJ’s decision if it is supported by substantial evidence. See
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
To establish eligibility for disability insurance benefits, the claimant must
show that she was under disability on or before the last date for which she was
insured. 42 U.S.C. § 423(a)(1)(A), (c)(1); Moore, 405 F.3d at 1211. In
determining whether a claimant has proven that she is disabled, the ALJ must
complete a five-step sequential evaluation process. Jones v. Apfel, 190 F.3d 1224,
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1228 (11th Cir. 1999). The claimant has the burden to prove that (1) she “has not
engaged in substantial gainful activity,” (2) she “has a severe impairment or
combination of impairments,” and (3) her “impairment or combination of
impairments meets or equals a listed impairment” such that she is entitled to an
automatic finding of disability. Id. If the claimant is not able to meet or equal the
criteria for a listed impairment, she must proceed to the fourth step, which requires
showing that she is unable to do her past relevant work. Id. “At the fifth step, the
burden shifts to the Commissioner to determine if there is other work available in
significant numbers in the national economy that the claimant is able to perform.”
Id. If the Commissioner demonstrates that there are jobs that the claimant can
perform, the claimant must show that she is unable to perform those jobs in order
to establish that she is disabled. Id.
A.

Appeals Council Review

Green argues that the Appeals Council erred by denying her request for
review because it ignored her new evidence from Dr. Hamer without determining
whether the evidence was chronologically relevant. She further asserts that the
Appeals Council refused to consider Dr. Hamer’s opinion expressed in the
Physical Capacities Form solely because it was dated after the ALJ’s decision and
that the district court improperly provided a post hoc rationale for why the Appeals
Council would have been justified in discounting the Physical Capacities Form.
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Typically, a claimant may present new evidence at every stage of the
administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1261 (11th Cir. 2007). Although the Appeals Council may decline to review the
ALJ’s denial of benefits, it “must consider new, material, and chronologically
relevant evidence” submitted by the claimant. Washington v. Soc. Sec. Admin.,
Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015) (quotations omitted); 20 C.F.R.
§ 404.970(b) (2016).1 The issue of whether a claimant’s new evidence is new,
material, and chronologically relevant is reviewed de novo. Washington, 806 F.3d
at 1320–21. “[W]hen the Appeals Council erroneously refuses to consider
evidence, it commits legal error and remand is appropriate.” Id. at 1321.
Evidence is considered material when a reasonable possibility exists that the
evidence would change the administrative result. Id. Evidence is chronologically
relevant where “it relates to the period on or before the date of the administrative
law judge hearing decision.” 20 C.F.R. § 404.970(b) (2016). A medical
examination that takes place after issuance of the ALJ’s decision may be
chronologically relevant if it relates back to the date of the ALJ’s decision.
Washington, 806 F.3d at 1322–23. In Washington, we concluded that a medical
opinion based on treatment occurring after the ALJ’s decision was chronologically
1

This regulation was recently amended, effective January 17, 2017, to state that the Appeals
Council will review a case if it “receives additional evidence that is new, material, and relates to
the period on or before the date of the hearing decision, and there is a reasonable probability that
the additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5)
(2017).
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relevant because it was based on (1) the claimant’s experiences that had occurred
during the time period before the ALJ’s decision and (2) a review of the claimant’s
medical records from the time period prior to the ALJ’s decision. Id.
In submitting her request for review of the ALJ’s decision to the Appeals
Council, Green submitted the following additional evidence: (1) a January 2014
bone density scan and (2) a February 2014 cervical spine MRI, showing a mild C56 posterior disc protrusion. She also submitted treatment notes from Dr. Hamer,
whom she visited for the first time in December 2013, one month after the ALJ
issued his decision. The Appeals Council denied Green’s request for review. In
doing so, the Appeals Council stated that it had looked at the additional evidence
Green submitted—the 5 pages of medical records and 36 pages of treatment notes
dated between December 2013 and August 2014—but that the new information
related to a later time and therefore did not affect the decision of whether she was
disabled beginning on or before the date of the ALJ’s decision, November 22,
2013.
Here, Green’s argument that that the Appeals Council ignored Dr. Hamer’s
treatment notes without considering whether they were chronologically relevant is
not well taken. The Appeals Council did not ignore this evidence. Instead, it
stated that it had looked at the evidence, but determined that it did not affect the
ALJ’s decision because it was from a later date. Although the Appeals Council did
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not explicitly state that the additional medical evidence was not chronologically
relevant, it implicitly did so and we agree with that conclusion. Dr. Hamer’s
treatment notes were dated after the ALJ’s decision. Though the treatment notes
mentioned that Green’s symptoms had been present for one year, Dr. Hamer did
not specify that his opinion applied to the time period before the ALJ’s decision.
Moreover, unlike our decision in Washington, there is no indication that Dr.
Hamer’s opinion was based on a review of Green’s past medical records from
before the date of the ALJ’s decision. See Washington, 806 F.3d at 1322. Thus,
the Appeals Council did not err by determining that the new evidence was not
chronologically relevant.
Green also argues that the Appeals Council erred by refusing to consider the
Physical Capacities Form that Dr. Hamer completed on May 30, 2014. The
problem for Green is that it is not even clear that the form was before the Appeals
Council. Green summarized the Physical Capacities Form in her brief to the
Appeals Council, but the form is not included in the administrative record. 2 And
while the Appeals Council did not reference the Physical Capacities Form, there is
also no requirement that the Appeals Council discuss each piece of evidence when
denying review. See Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 784

2

Green filed a motion in the district court to correct the record to include the Physical
Capacities Form and attached the form to the motion. The district court granted the motion.
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(11th Cir. 2014) (concluding that the Appeals Council is not required to discuss
new evidence when denying review).
To the extent Green seeks a remand under 42 U.S.C. § 405(g) based on her
submission of the Physical Capacities Form to the district court, she has not shown
good cause for failing to make this evidence part of the administrative record. See
42 U.S.C. § 405(g) (The district court may remand to the Commissioner “only
upon a showing that there is new evidence which is material and that there is good
cause for failure to incorporate such evidence into the record in a prior
proceeding.”); see Ingram, 496 F.3d at 1268 (“We . . . have held that remand under
sentence six [of § 405(g)] is appropriate for the Commissioner to consider new
evidence that the Commissioner did not have an opportunity to consider because
the evidence was not properly submitted to the Appeals Council.”).
We next turn to Green’s argument challenging the district court’s
determination that even if the Physical Capacities Form had been before the
Appeals Council, the Appeals Council would have been justified in discounting Dr.
Hamer’s opinion because it was conclusory and not supported by objective medical
evidence. Green argues that the district court’s post hoc rationale for why the
Appeals Council would have been justified in discounting Dr. Hamer’s opinion
was improper. To support her argument, Green relies on our decision in Owens v.
Heckler, 748 F.2d 1511, 1516 & n.6 (11th Cir. 1984), in which we concluded that
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the Appeals Council may not infer plausible reasons for an ALJ’s conclusion
where the ALJ failed to articulate its reasons for a decision.
Green’s reliance on Owens is misplaced, however, because that decision
refers to the Appeals Council providing reasons for an ALJ’s decision, not the
district court providing reasons for the Appeals Council’s decision. See id. at
1516. This difference is important because, although an ALJ must articulate some
basis for his decision, the Appeals Council does not need to provide a detailed
explanation when it denies review. See id. at 1514–15 (“A clear articulation [by
the ALJ] of both fact and law is essential to our ability to conduct a review that is
both limited and meaningful.”); Mitchell, 771 F.3d at 784 (“The Appeals Council
. . . was not required to provide a detailed rationale for denying review.”).
In short, Green has failed to show any reversible error.
B.

Credibility Determination

Green next challenges the ALJ’s determination that her subjective
complaints were not entirely credible. To establish a disability based on subjective
testimony of pain and other symptoms, the claimant must establish: “(1) evidence
of an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.”
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); 20 C.F.R. § 404.1529.
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We have determined that credibility determinations are within the province
of the ALJ. Moore, 405 F.3d at 1212. However, if the ALJ rejects a claimant’s
subjective testimony regarding pain, the ALJ must articulate specific reasons for
doing so. Wilson, 284 F.3d at 1225. Otherwise, the claimant’s testimony must be
accepted as true. Id. Although the ALJ need not cite to “particular phrases or
formulations” to support the credibility determination, the ALJ must do more than
merely reject the claimant’s testimony, such that the decision provides a reviewing
court a basis to conclude that the ALJ considered the claimant’s medical condition
as a whole. Dyer, 395 F.3d at 1210 (quotations omitted).
As an initial matter, Green asserts for the first time on appeal that her
credibility should be assessed under the standard announced in Social Security
Ruling 16-3p. Social Security Ruling (“SSR”) 16-3p, which became effective
March 28, 2016, provides guidance on “evaluat[ing] statements regarding the
intensity, persistence, and limiting effects of symptoms in disability claims.” SSR
16-3p, 81 Fed. Reg. 14166, 14167 (Mar. 16, 2016). Of relevance, the ruling
eliminates the term “credibility” from sub-regulatory policy and stresses that when
evaluating a claimant’s symptoms, the adjudicator will “not assess an individual’s
overall character or truthfulness” but instead will “focus on whether the evidence
establishes a medically determinable impairment that could reasonably be expected
to produce the individual’s symptoms.” Id. at 14166, 14171. Although Green
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argues that we should apply SSR 16-3p retroactively, she does not cite to any
controlling authority for doing so. Moreover, administrative rules are not generally
applied retroactively. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988) (“Retroactivity is not favored in the law . . . administrative rules will not be
construed to have retroactive effect unless their language requires this result.”).
Because SSR 16-3p does not specify that it applies retroactively, and Green has not
provided any authority showing that it applies retroactively, we decline to apply
that standard here.
With that said, substantial evidence supports the ALJ’s determination that
Green’s statements regarding the intensity, persistence, and limiting effects of her
symptoms were not entirely credible. Green testified that she was unable to work
due to her fibromyalgia, high blood pressure, and panic and anxiety attacks. She
stated that her fibromyalgia causes a lot of pain and she spends approximately 85%
of the day lying down. The ALJ discredited her testimony, concluding that it was
inconsistent with the medical record and Green’s daily activities.
As noted by the ALJ, Green’s medical visits were relatively infrequent and
she had received primarily routine, conservative treatment for her conditions.
Moreover, Green’s function reports show that she cares for her own personal
needs, does light housework, prepares simple meals, drives, goes shopping, and
visits with family and friends. See 20 C.F.R. § 404.1529(c)(3) (indicating that the
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ALJ looks at several factors, including the claimant’s daily activities when
evaluating the claimant’s subjective symptoms). Although Green alleged that her
medications make her tired and make it difficult for her to concentrate, these side
effects were not corroborated by her medical records. Further, the ALJ noted that
the record suggested that Green had stopped working for reasons other than her
alleged disabilities, given that she was laid off from her job in September 2010 and
had received unemployment benefits through April 2012.
Green’s argument that the ALJ improperly drew an adverse inference from
Green’s lack of specialized medical treatment is unavailing. “[W]hen an ALJ
relies on noncompliance [with prescribed medical treatment] as the sole ground for
denial of disability benefits, and the record contains evidence showing that the
claimant is financially unable to comply with prescribed treatment, the ALJ is
required to determine whether the claimant was able to afford the prescribed
treatment.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). “However,
if the ALJ’s determination is also based on other factors, such as RFC, age,
educational background, work experience, or ability to work despite the alleged
disability, then no reversible error exists.” Henry v. Comm’r of Soc. Sec., 802 F.3d
1264, 1268 (11th Cir. 2015).
Here, even if we agreed with Green that the ALJ drew an adverse inference
from the fact that she had not sought specialized treatment for her fibromyalgia or
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back pain, Green cannot show reversible error. Although the ALJ noted that Green
had not sought specialized treatment, the ALJ also explained that Green’s
testimony was not entirely credible because it was inconsistent with the medical
record and her reported daily activities. See Ellison, 355 F.3d at 1275; Henry, 802
F.3d at 1268. Further, Green’ testimony regarding the side effects of her
medication was not corroborated by the medical records, and the evidence
suggested that she lost her job for reasons other than her alleged disabilities. Given
that the ALJ did not rely exclusively on Green’s failure to seek specialized
treatment when discrediting her testimony, Green has not shown reversible error.
Because the ALJ articulated clear reasons for discrediting Green’s subjective
complaints regarding the extent of her limitations and those reasons are supported
by substantial evidence, we will not disturb the ALJ’s credibility finding. See
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“A clearly articulated
credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.”).
III.

CONCLUSION
Based on the foregoing reasons, we affirm the district court’s order

affirming the Commissioner’s denial of Green’s application for disability insurance
benefits.

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