McCaskill v. Colvin(CONSENT)
MEMORANDUM OPINION. The court concludes that the decision of the Commissioner is due to be affirmed. A separate final judgment will be entered. Signed by Honorable Judge Charles S. Coody on 6/23/2016. (dmn, )
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. 2:15cv396-CSC
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. § 401 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). Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final
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.
judgment by the United States Magistrate Judge. 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 determination3 the Commissioner employs a five step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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?
(4) Is the person unable to perform his or her former occupation?
(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).4
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 (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
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); Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007). "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); Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004). A reviewing court may not look only to
those parts of the record which supports 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, 1180 (11th Cir. 1986). 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, however,] . . . 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 42 years old on the alleged date of onset, and has
cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).
a high school education. (R. 54). The plaintiff’s prior work experience includes work as a
truck driver and an auto mechanic. (Id.). Following the administrative hearing, the ALJ
concluded that the plaintiff has severe impairments of
status post intramedullary nail after left subtrochanteric femur fracture; mild
kyphosis and mild disc space narrowing, thoracic spine; diffuse disc bulge
causing mild central stenosis, disc osteophyte complex causing mild central
stenosis and mild facet arthropathy causing some mild right-sided foraminal
stenosis, lumbar spine; status post right arthroscopy with removal of loose
bodies and chondroplasty of the right tibial condyle after right, minimally
displaced fracture of the tibial spine extending minimally into the posterior
medial tibial articular surface; obesity; and diabetes.
The ALJ found that McCaskill was unable to perform his past relevant work but
concluded that he
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except the claimant can frequently carry up to and no more than
twenty pounds. The claimant does not suffer any additional manipulative
limitation. The claimant can sit up to four hours without interruption and a
total of at least six hours over the course of an eight-hour day. The claimant
can stand and/or walk up to two hours each (sic) without interruption and a
total of six hours over the course of an eight-hour workday. However, the
claimant cannot walk or stand on uneven terrain. The claimant can use his
lower extremities for pushing, pulling and the operation of foot controls, with
the same limitations as to standing and walking. The claimant cannot climb
ladders, ropes, poles, or scaffolds. He can occasionally climb ramps and stairs.
The claimant can occasionally balance, stoop, kneel, and crouch. He cannot
crawl. The claimant can frequently work in humidity and wetness. The
claimant can occasionally work in extreme temperatures. The claimant can
occasionally work while subject to vibration. The claimant cannot work with
operating hazardous machinery. The claimant cannot work at unprotected
heights. The claimant can operate motorized vehicles to the same extent that
he is able to sit over the hours of an eight-hour workday.
Using the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a
framework and relying on the testimony of a vocational expert, the ALJ concluded that there
were significant number of jobs in the national economy that the plaintiff could perform. (R.
55). Accordingly, the ALJ concluded that the plaintiff was not disabled. (Id.).
B. The Plaintiff's Claim. The sole issue presented by the plaintiff, as stated by him,
is whether “[t]he Commissioner’s decision should be reversed, because the Appeals Council
erroneously denied Mr. McCaskill’s request for review in light of material evidence
submitted thereto.” (Doc. # 11, Pl’s Br. at 4).
The sole issue before the court is whether the Appeals Council erred in its
consideration of the new evidence presented by the plaintiff. “The Appeals Council must
consider new, material, and chronologically relevant evidence.” Ingram, 496 F.3d at 1261.
See also Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015).
In denying review of the ALJ’s determination, the Appeals Council specifically addressed
McCaskill’s newly presented evidence.
In looking at your case, we considered the reasons you disagree with the
decision and medical records from Health Services, Inc., dated May 9, 2013August 22, 2013 (22 pages), which are listed on the enclosed Order of Appeals
Council with the entire record. We considered whether the Administrative
Law Judge’s action, findings, or conclusion is contrary to the weight of the
evidence currently of record. We found that this information does not provide
a basis for changing the Administrative Law Judge’s decision.
We also looked at medical records from Nite Watch dated October 4, 2013 (10
pages) and medical records from Health Services, Inc. dated September 19,
2013-December 26, 2013. The Administrative Law Judge decided your case
through August 16, 2013. This new information is about a later time.
Therefore, it does not affect the decision about whether you were disabled
beginning on or before August 16, 2013.
McCaskill argues that the Appeals Council “turned a blind eye” to evidence that he
suffers from diabetic neuropathy, or, at the very least “should have resolved the conflict,
inconsistency, and/or ambiguity in the record” regarding his diabetic neuropathy. (Doc. #
11, Pl’s Br. at 7). While the evidence is new because some of it was not available at the time
of the hearing, nor was all of it available at the time of the hearing, the evidence is not
material or chronologically relevant. The records from Nite Watch are not chronologically
relevant because they apply to a time period after the ALJ’s determination. Many of the
records from Health Services, Inc. were before the ALJ. The additional records from Health
Services, Inc. from September to December 2013 were not before the ALJ, but are not
The new evidence must relate to the period on or before the date of the
administrative law judge’s (“ALJ’S”) decision. See Wilson v. Apfel, 179 F.3d
1276, 1279 (11th Cir. 1999); cf. 20 C.F.R. §§ 404.970(b), 416.1470(b)
(requiring Appeals Council to consider new evidence “only where it relates to
the period on or before the date of the administrative law judge hearing
decision.”). Evidence of deterioration of a previously-considered condition
may subsequently entitle a claimant to benefit from a new application, but it
is not probative of whether a person is disabled during a specific period under
review. See Wilson, 179 F.3d at 1279.
Enix v. Comm’r of Soc. Sec., 461 F. App’x 861, 863 (11th Cir. 2012).
More importantly, however, the records are not material because while the records
show that McCaskill’s treatment for diabetes and other conditions continued during the
specified period, the additional records do not show an inability to work. In his opinion, the
ALJ made the statement that “the record is void of any diagnoses for . . . diabetic
neuropathy.” (R. 47). The plaintiff argues that this determination was in error because the
medical records demonstrate that he was being treated by Merri Ellison, a certified registered
nurse practitioner, for diabetic neuropathy. The records establish that Ellison assessed
McCaskill with “Disturbance of the skin sensation,” and prescribed gabepentin, a medication
used to treat diabetic neuropathy. (R. 423, 425). The Social Security regulations define
nurse practitioners as “other sources,” but they are not considered “acceptable medical
sources.” 20 C.F.R. § 404.1513(a). See also Cain v. Astrue, 2010 WL 750333 (M.D. Fla.,
2010) (No. 809CIV34T-17-MAP); Owens v. Barnhart, 2006 WL 4791709 (M.D. Fla., 2006)
(No. 805CV1399-T-EAJ). The ALJ was required to consider Ellison’s treatment notes which
he did, but her opinion is not entitled to “substantial weight” as an “acceptable medical
source.” Lacroix v. Barnhart, 465 F.3d 881, 886 (8th Cir. 2006).
New evidence is material “if accepted, ‘there would be a reasonable possibility’ that
[the records] ‘would change the administrative result.’” Washington, 806 F.3d at 1321
quoting Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). The mere fact that McCaskill
continued to receive treatment is simply insufficient to demonstrate a reasonable likelihood
that these records would change the administrative result.
Because the plaintiff presented the ‘new’ evidence to the Appeals Council, and
because it was included in the administrative record, this court can remand pursuant to
sentence four only if “the Appeals Council did not adequately consider [the evidence] in
denying the claimant’s request for review,” and McCaskill shows that, ‘in light of the new
evidence submitted to the Appeals Council, the ALJ’s decision to deny benefits is not
supported by substantial evidence in the record as a whole.” Timmons v. Comm’r of Soc.
Sec., 522 F. App’x 897, 902 (11th Cir. 2013). This he cannot do.
According to McCaskill, the medical records from Health Services, Inc. either directly
contradict the ALJ’s determination that he does not suffer from diabetic neuropathy or create
an inconsistency which the ALJ failed to reconcile. (Doc. # 11, Pl’s Br. at 6-7). The court
In his decision, the ALJ carefully considered McCaskill’s treatment for diabetes and
his complaints of neuropathy, detailing his findings in his opinion.
On April 11, 2013, the claimant complained of right foot numbness that he
alleged had developed three weeks earlier. . . . Ultimately, limb pain and
disturbance of skin sensation were diagnosed and the claimant was scheduled
for follow-up in three weeks. On May 2, 2013, the claimant returned for
follow-up treatment wherein improvement of his disturbance of skin sensation
were noted (Id. at pg. 23).
The undersigned has determined that the claimant’s allegations of vision
difficulties, stomach ulcer, diabetic neuropathy and headaches are not
medically determinable impairments.
Beyond the claimant’ subjective reports to treatment providers, the record is
void of any diagnoses for headaches or diabetic neuropathy.
. . . [T]he claimant appeared and testified at length. Interestingly, he testified
that diabetes and visual limitation to the point that he “couldn’t hardly see”
caused him to stop working in August 2010. However, this allegation is
seriously contradicted not only by his admission in his initial application that
he stopped working because of a layoff but also by his record and supportive
objective evidence that he was engaged in work on the alleged date when he
fell from a ladder and sustained the bulk of his severe impairments. . . .
Further, he testified that a physician had diagnosed diabetic neuropathy–a
diagnosis which is not reflected in the objective record.
(R. 46-47, 53).5
The new evidence from Health Services, Inc. consists of treatment notes which
include a September 13, 2013 note with the notation “DM periph neuropathy.” (R. 24).
That single notation, however, does not create a “reasonable probability” of a different
outcome on remand, particularly in light of the ALJ’s thorough consideration of all of
McCaskill’s treatment records. It is outside the period under consideration.
Even if the court were to consider the conclusory notation and the additional medical
evidence, the records do not warrant remand. On October 2, 2013, McCaskill complained
of foot pain but the note reflects that his “symptoms are reported as being mild.” (R. 26-29).
In addition, his examination revealed no numbness in his extremities. (R. 27). On November
22, 2013, McCaskill complained of “intermittent” pain. (R. 30-33). On December 1, 2013,
McCaskill did not complain of foot pain. (R. 34-38).
Finally, on December 26, 2013,
although he complained that his feet were tender, he was in “no obvious distress.” (R. 39).
It is clear that the new medical evidence is materially similar to the other evidence that the
ALJ considered, and thus, would not change his determination.
The ALJ discounted McCaskill’s testimony, and McCaskill does not challenge the ALJ’s
The plaintiff argues the Appeals Council did not sufficiently review his new evidence.
“When a claimant properly presents new evidence, and the Appeals Council denies review,
the Appeals Council must show in its written denial that it has adequately evaluated the new
evidence.” Flowers v. Comm’r of Soc. Sec., 441 F. App’x 735, 745 (11th Cir. 2011) (panel
decision) (citing Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980)).6
The Appeals Council, in denying review, stated that the Council “found no reason
under our rules to review the Administrative Law Judge’s decision. Therefore, we have
denied your request for review.” (R. 1). The Appeals Council specifically described the
evidence that was submitted, their consideration of the evidence, and their rationale for
rejecting McCaskill’s request for review. See R. 1-2. Under the law of this circuit, the
Appeals Council’s explanation is sufficient. See generally Ingram, 496 F.3d at 1262
(Appeals Council accepted evidence but denied review.) “[B]ecause a reviewing court must
evaluate the claimant’s evidence anew, the [Appeals Council] is not required to provide a
thorough explanation when denying review.” Burgin v. Comm’r of Soc. Sec., 420 F. App’x
901, 903 (11th Cir. 2011). See also Manfield v. Astrue, 395 F. App’x 528, 530 (11th Cir.
2010) (same); Caces v. Comm’r, Soc. Sec. Admin., 560 F. App’x 936, 941 (11th Cir. 2014)
(“The Appeals Council adequately considered the new evidence and expressly found that it
did not provide a basis for changing the ALJ’s decision.”); Smith v. Soc. Sec. Admin., 272
F. App’x 789, 801 (11th Cir. 2008) (the Appeals Council’s statement that it specifically
Decisions of the former Fifth Circuit on or before September 30, 1981 are binding precedent in
the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
considered the plaintiff’s reasons for disagreeing with the ALJ’s decision and the additional
evidence was sufficient).
The court has reviewed the entire administrative record, including the 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 court
has carefully and independently reviewed the record and concludes that substantial evidence
supports the ALJ’s conclusion that plaintiff is not disabled. Thus, the court concludes that
the decision of the Commissioner is due to be affirmed.
A separate final judgment will be entered.
Done this 23rd day of June, 2016.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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