Hargrove v. Colvin
MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 7/21/2015. (kh, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
CIVIL ACTION NO. 2:14cv636-CSC
The plaintiff applied for supplemental security income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381, et seq., alleging that he was unable to work because
of a disability. His application was denied at the initial administrative level. The plaintiff
then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a
subsequent request for review. The ALJ’s decision consequently became the final decision
of the Commissioner of Social Security (Commissioner).2 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). The parties have consented to the United States Magistrate Judge
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
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.
conducting all proceedings in this case and ordering the entry of final judgment, pursuant to
28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. Based on the court’s review of the record in
this case and the briefs of the parties, the court concludes that the decision of the
Commissioner should be affirmed.
II. 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 . . .
To make this determination,3 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
Is the person presently unemployed?
Is the person’s impairment severe?
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?
Is the person unable to perform his or her former occupation?
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
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of 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); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). 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.”
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (quotation marks
omitted). The court “may not decide the facts anew, reweigh the evidence, or substitute . .
. [its] judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240
n. 8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).
[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).
III. The Issues
A. Introduction. The plaintiff was 45 years old at the time of the hearing before the
ALJ. (R. 37-38). He has a marginal education. (R. 24). He has no relevant past work
experience. (Id.). Following the hearing, the ALJ concluded that the plaintiff has severe
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 Cir. 1981) (Unit A).
impairments of “HIV, major depression which is moderate to severe in intensity, anxiety
disorder, personality disorder NOS and substance induced mood disorder.” (R. 18). The
ALJ concluded that the plaintiff had no past relevant work, but, using the MedicalVocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a framework and relying on
the testimony of a vocational expert, he also concluded that there were significant number
of jobs in the national economy that the plaintiff could perform. (R. 24-25). Accordingly,
the ALJ concluded that the plaintiff was not disabled. (R. 25).
B. Plaintiff’s Claim. The plaintiff presents a single issue for the Court’s review. As
stated by the plaintiff, the issue is “whether Plaintiff submitted new and material evidence
sufficient to support a remand. (Doc. # 11, Pl’s Br. at 1 & 5).
Hargrove argues that this matter should be remanded to Commissioner for
consideration of the new evidence presented to the Appeals Council.5 See Doc. # 11, Pl’s
Br. at 6. New evidence presented to the Appeals Council, but not to the ALJ, may be
considered by the court to determine whether remand is proper under 42 U.S.C. § 405(g).
Section 405(g), in part, permits courts to remand a case to the Social Security Administration
for consideration of new evidence under certain circumstances.
The plaintiff does not specify whether he is seeking a remand pursuant to sentence
Hargrove does not contend that the Appeals Council failed to properly consider the evidence.
Rather, he contends that “[t]he new medical evidence relating to Plaintiff’s treatment for HIV is material in
that there is a reasonable possibility that the evidence, if considered, could result in a different decision at
the administrative level of review.” (Doc. # 11 at 6) (emphasis added).
four or sentence six of 42 U.S.C. § 405(g). A sentence four remand permits the court “to
enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding
the cause for a rehearing.” Sentence six allows the court to remand for “additional evidence
to be taken before the Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
Under the sixth sentence of § 405(g), the district court may remand the case
“to the Commissioner for the taking of additional evidence upon a showing
that there is new evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a prior proceeding.”
Ingram, 496 F.3d at 1261 (quotation omitted), The evidence must be
noncumulative. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). A
sentence six remand is “appropriate when the district court learns of evidence
not in existence or available to the claimant at the time of the administrative
proceeding that might have changed the outcome of that proceeding.” Sullivan
v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 2664, 110 L.Ed. 2d 563
(1990); Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). The district court
is not authorized by sentence six “to remand for reconsideration of evidence
previously considered by the Appeals Council.” Ingram, 496 F.3d at 1269.
Norton v. Comm’r of Soc. Sec., — Fed. App’x —, —, 2015 WL 1600426 * 4 (11th Cir.
Although the plaintiff seeks to have the case remanded for consideration of new
evidence and relies on language used in conjunction with a sentence six remand, the court
must consider whether remand is appropriate under sentence four because the Appeals
Council considered the very evidence the plaintiff contends warrants remand. “The settled
law of this Circuit is that a court may review, under sentence four of section 406(g), a denial
of review by the Appeals Council.” Ingram v. Comm’r of Soc. Sec. Adm., 496 F.3d 1253,
1262 (11th Cir. 2007). The court must review the entire administrative record, including any
new evidence submitted to the Appeals Council, to determine whether the Commissioner’s
decision is supported by substantial evidence. See Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1069 (11th Cir. 1994) (“[N]ew evidence first submitted to the Appeals
Council is part of the administrative record that goes to the district court for review when the
Appeals Council accepts the case for review as well as when the Council denies review.”).
The plaintiff contends that his HIV positive status “causes limitation to his ability to
work,” and was not fully considered. (Doc. # 11 at 6). The ALJ considered the effect of
Hargrove’s HIV positive status on his ability to work.
In addition to the claimant’s psychiatric treatment, he also receives medical
care from Dr. Dill who monitors and treats his HIV (Exhibit B3F page 2). Dr.
Dill prescribes the claimant several medications such as Norvir, Reyataz,
Paroxetine and Truvade (ExhibitB3F, page 2). Although the claimant’s HIV
requires routine treatment and medication, there is a paucity of evidence of this
in the record and there is no evidence that this impairment causes any
functional limitations that would preclude him from work at the exertional
level identified about.
The ALJ also noted that the plaintiff’s medications are consistent with treatment of
HIV. (R. 23).
With his request for review, Hargrove presented to the Appeals Council medical
records from his primary physician, Dr. Dill, who treats his HIV.6 (R. 353-372). The
Appeals Council considered the evidence and concluded that the new evidence
does not provide a basis for changing the Administrative Law Judge’s
decision. . . The Administrative Law Judge decided your case through October
30, 2012. This new information is about a later time. Therefore, it does not
affect the decision about whether you were disabled beginning on or before
October 30, 2012.
The decision of the Appeals Council is supported by substantial evidence. Dr. Dill’s
treatment records span from January 17, 2012 to December 19, 2012. (R. 352-71). At the
administrative hearing, Hargrove testified that his HIV positive status causes him to be
fatigued and short of breath. (R.42-43). He also testified that he suffers from stomach pain
and diarrhea. (Id.) However, Dr. Dill’s treatment records do not confirm his complaints.
For example, Hargrove presented to Dr. Dill on February 21, 2012. (R. 366-70). At that
time, he complained about a chest cold. (R. 366). He reported that he was “not feeling tired
or poorly.” (Id.) He reported no nausea, vomiting or diarrhea. (Id.)
On May 29, 2012, Hargrove followed up with Dr. Dill. (R. 361-64). He was in “no
acute distress.” (R. 362). An examination revealed no abdominal abnormalities or
tenderness. (R. 363). His lab results were “much improved.” (Id.). His lab results on June
The plaintiff also submitted to the Appeals Council additional information regarding his mental
health treatment. He presents no argument and makes no challenge to how his mental impairments were
considered. The onus is upon the parties to formulate arguments, and any claim not raised is deemed
abandoned. See generally Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); Road
Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994).
Consequently, the court only considers how Hargrove’s HIV positive status impairment was evaluated.
25, 2012 also revealed improvement. (R. 358). On July 24, 2012, Hargrove presented for
“management of HIV. He is doing well with his HIV medications and trying to stay
adherent.” (R. 355).
While the records demonstrate that Dr. Dill is treating and monitoring Hargrove’s HIV
positive status, there is no indication in the records that his condition compromises his ability
to work. The Appeals Council examined and evaluated the medical records for evidence
regarding the severity of Hargrove’s HIV positive status. While it is clear that Hargrove is
HIV positive, the record contains no evidence that this condition has any impact on his ability
Moreover, other evidence in the records suggests that while Hargrove is HIV positive,
he is asymptomatic. On November 26, 2010, Hargrove presented to Jackson Hospital
emergency room complaining of pain in his left hand from punching a wall. (R. 306). At that
time, Hargrove was “HIV positive but asymptomatic.” (R. 307). On February 6, 2001,
Hargrove presented to Jackson Hospital emergency room complaining of swelling in his left
hand. (R. 299). He had a closed fracture of his finger. (R. 301). On February 28, 2011,
Hargrove presented to Jackson Hospital emergency room complaining of a cough, chills and
body aches. (R. 288). Again, Hargrove was “HIV positive but asymptomatic.” (R.289, 297).
The mere fact that Hargrove is HIV positive is insufficient to demonstrate that this
condition is disabling. “[T]he severity of a medically ascertained disability must be measured
in terms of its effect upon ability to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986). The Appeals Council and the ALJ properly considered the effect of
Hargrove’s HIV positive status on his ability to work, and the conclusion that Hargrove is
not disabled is supported by substantial evidence.
“Even though Social Security courts are inquisitorial, not adversarial, in nature,
claimants must establish that they are eligible for benefits.” Ingram, 496 F.3d at 1269 (citing
Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)). See also Holladay v. Bowen, 848
F.2d 1206, 1209 (11th Cir. 1988). This the plaintiff has failed to do. Based upon its review
of the administrative decisions and the objective medical evidence of record, the court
concludes that substantial evidence supports its decision of the Appeals Council to decline
to remand to the ALJ for further consideration.
Pursuant to the substantial evidence standard, this court’s review is a limited one; the
entire record must be scrutinized to determine the reasonableness of the ALJ’s factual
findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). It is not the province of
this court to reweigh evidence, make credibility determinations, or substitute its judgment for
that of the ALJ. Instead the court reviews the record to determine if the decision reached is
supported by substantial evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
The court has carefully and independently reviewed the record and concludes that a
remand is not warranted and that substantial evidence supports the conclusion that plaintiff
is not disabled. Thus, the court concludes that the decision of the Commissioner is due to
A separate order will be entered.
Done this 21st day of July, 2015.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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