Davis v. Astrue (CONSENT)
MEMORANDUM OPINION that the decision of the Commissioner is AFFIRMED. Signed by Honorable Judge Wallace Capel, Jr on 9/21/2012. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 2:11cv674-WC
Plaintiff, Shauna Davis, applied for disability insurance benefits and supplemental
security income benefits under Titles II & XVI of the Social Security Act (“the Act”), 42
U.S.C. §§ 1381 et seq. Her application was denied at the initial administrative level.
Plaintiff then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ issued a decision on May 7, 2010, in which he found Plaintiff
not disabled from the application date, to the date of the decision. Tr. 13-33. The Appeals
Council rejected Plaintiff’s request for review of the ALJ’s decision. The ALJ’s decision
consequently became the final decision of the Commissioner of Social Security
(Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986); 20 C.F.R. §§
404.981, 416.1481 (if the Appeals Council denies a party’s request for review, the ALJ’s
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect
to Social Security matters were transferred to the Commissioner of Social Security.
decision is binding). The case is now before the Court for review under 42 U.S.C. § 405(g).
Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings
and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.’s
Consent to Jurisdiction (Doc. 8); Def.’s Consent to Jurisdiction (Doc. 9). Based on the
Court’s review of the record and the briefs of the parties, the Court AFFIRMS the decision
of the Commissioner.
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable 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).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
(4) Is the person unable to perform his or her former occupation?
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
(5) Is the person unable to perform any other work within the economy?
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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying
disability once they have carried the burden of proof from Step 1 through Step 4. At Step 5,
the burden shifts to the Commissioner, who must then show there are a significant number
of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual
Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do
despite his impairments and is based on all relevant medical and other evidence. Id. It also
can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step,
the ALJ considers the claimant’s RFC, age, education, and work experience to determine if
there are jobs available in the national economy the claimant can perform. Id. at 1239. To
do this, the ALJ can either use the Medical Vocational Guidelines4 (grids) or call a vocational
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th
See 20 C.F.R. pt. 404 subpt. P, app. 2.
expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or
light work, inability to speak English, educational deficiencies, and lack of job experience.
Each factor can independently limit the number of jobs realistically available to an
individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyrequired finding of “Disabled” or “Not Disabled.” Id.
The Court’s review of the Commissioner’s decision is a limited one. This Court must
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42
U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). See also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts of
the record which support the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was thirty-nine years old at the time of the hearing before the ALJ and held
at least a high school education. Tr. 32. Plaintiff’s past relevant work experience was as a
counter clerk, hostess, cashier, and child care attendant. Id. Following the administrative
hearing, and employing the five-step process, the ALJ found Plaintiff had not engaged in
substantial gainful activity since November 1, 2007 (Step 1). Tr. 15. At Step 2, the ALJ
found that Plaintiff suffers from the following severe impairments: “status post 2 mild
cardiovascular attacks and reported history of transient ischemic attack with little residuals;
history of cerebrovascular
accident with embolic stroke with temporary left-sided
paralysis, resolved with no residuals; status post cholecystectomy with history of
cholelithiasis; history of ovarian cysts; asthma; hypertension; gastroesophageal reflux
disease; chronic bilateral shoulder pain s/p history of bilateral shoulder dislocations s/p
arthroscopic labral repair, right; hepatis B with acute episode; anemia secondary to iron
deficiency; status post history of motor vehicle accident with closed head injury; TMD with
myofascial pain; major depressive disorder; hemorrhoids; microcystic anemia; obesity;
depressive disorder NOS; and history of alcohol abuse, with possible dependence. Tr.15-16.
The ALJ then found that “[t]he claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments . . . .” (Step 3) Tr.
16. Next, the ALJ found that Plaintiff retained the RFC to perform light work with several
mental, non-exertional, and environmental limitations. Tr. 22. The ALJ then determined that
Plaintiff “is capable of performing past relevant work.” (Step 4) Tr. 32. Considering
Plaintiff’s “age, education, work experience, and [RFC],” and after consulting the VE, the
ALJ also determined that “there are jobs that exist in significant numbers in the national
economy” that Plaintiff can perform, including: “server,” “hostess,” “child care attendant,”
and “cashier.” (Step 5) Tr. 32-33. Accordingly, the ALJ determined that Plaintiff “has not
been under a disability . . . [from the alleged onset date] through the date of th[e] decision.”
Plaintiff presents one issue for this Court’s consideration in review of the ALJ’s
decision: “Whether the Appeals Council erred by failing to remand Plaintiff’s case to the
ALJ on the basis of new evidence.” Pl.’s Br. (Doc. 12) at 2.
Plaintiff argues that this case should be remanded because she “presented new, non
cumulative, material evidence to the Appeals Council.” Pl.’s Br. (Doc. 12) at 8. The specific
evidence to which Plaintiff points, are hospital records related to her admissions in March
and May of 2010.
The Commissioner argues that remand is inappropriate because the
evidence is neither new, nor material evidence. Def.’s Br. (Doc. 14) at 6.
“[W]hen a claimant properly presents new evidence to the Appeals Council [and the
Appeals Council denies review], a reviewing court must consider whether that new evidence
renders the denial of benefits erroneous.” Ingram v. Comm’r of Social Sec. Admin., 496 F.3d
1253, 1262 (11th Cir. 2007). When reviewing the Appeals Council’s denial of review, the
Court must “look at the pertinent evidence to determine if the evidence is new and material.”
Robinson v. Astrue, 365 F. App’x 993, 996 (11th Cir. 2010) (quoting Falge v. Apfel, 150 F.3d
1320, 1324 (11th Cir. 1998)). “‘New’ evidence is evidence that is non-cumulative, and
‘material’ evidence is evidence that is ‘relevant and probative so that there is a reasonable
possibility that it would change the administrative result.’” Id. (quoting Milano v. Bowen,
809 F.2d 763, 766 (11th Cir. 1987)).
Putting aside the Commissioner’s arguments that the hospital records are not “new”
the court finds that the evidence is not “material.” Plaintiff’s argument on the subject is that
“the evidence relates to the nature and severity of plaintiff’s cerebrovascular impairment at
a time shortly after the hearing” . . . “and supports that the impairment was likely of
significantly greater severity than determined by the ALJ at the time of the Decision, and
could possibly change the outcome of the decision.” Pl.’s Br. (Doc. 12) at 7. Plaintiff does
not explain how the records could have changed the outcome.
The RFC in this case is quite extensive. That is because, after finding that Plaintiff
could perform light work, the ALJ went on to record a number of limitations. Those
limitations included mental limitations such as: the ability to make judgments on simple
work related decisions; the ability to understand and remember complex instructions; the
ability to carry out complex instructions; the ability to make judgments on complex workrelated decisions; the ability to interact with the public, supervisors, and co-workers; and the
ability to respond appropriately to ususal work situations and to changes in a routine work
setting. Tr. 22. The RFC limitations also included environmental and non-exertional
limitations. Id. In making the RFC determination, the ALJ took into consideration Plaintiff’s
“severe” impairment of a history of cerebrovascular accidents and how that impairment had
led to temporary and non-residual paralysis. Plaintiff does not present evidence or argue that
the new records indicate a change in that impairment that would alter the ALJ’s
determination. Thus, Plaintiff has failed to show that the records create a reasonable
possibility that it would change the administrative result. See, e.g., Archer v. Comm’r of Soc.
Sec., 176 F. App’x 80, 82 (11th Cir. 2006) (finding that new evidence failed the materiality
test where nothing associated with the new evidence limited the claimant’s ability to do light
Plaintiff simply asserts that the records indicate that she likely suffered the
impairment more severely than the ALJ determined, but does not explain how that would
result in a change in the RFC determination, the ultimate finding. The Court will not assume
arguments on Plaintiff’s behalf, because “[Plaintiff] bears the burden to establish that the
new evidence is material.” Allen v. Barnhart, 174 F. App’x 497, 500 (11th Cir. 2006) (citing
Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir. 1985)).
Moreover, the new, material evidence must relate “to the period on or before the date
of the administrative law judge hearing decision.” 20 C.F.R. § 404.970(b). Plaintiff makes
no argument that the records establish that this possible impairment relates back to the
relevant time period. See, e.g., Archer, 176 F. App’x at 82 (“With a degenerative disease,
in the absence of repeated tests, the extent of the progression of the disease at any given time
is not known. Thus, there is no way of knowing whether the new evidence related to the
complaints relative to the time period before the ALJ.”).
The ALJ clearly considered Plaintiff’s cerebrovascular condition in developing the
RFC. The Court has reviewed the ALJ’s RFC in connection with the new evidence and finds
that it is not “material” in that is does not create a reasonable probability that it would change
the administrative result, nor does it establish that the information therein relates back to the
relevant time period.
The Court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is AFFIRMED. A separate
judgment will issue.
Done this 21st day of September, 2012.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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