Whiddon v. Saul

Filing 17

ORDER: The Court REVERSES the Commissioner's decision and REMANDS this case for consideration of that evidence in conjunction with the record as a whole; The Court will enter final judgment by separate order. Signed by Honorable Judge Stephen Michael Doyle on 7/16/2021. (Copies Mailed: SSA Chief Judge, SSA Office of Hearings/Appeals)(bes, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
REGINALD WHIDDON,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,1
Defendant.

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Case No. 2:20-cv-183-SMD

ORDER
Plaintiff Reginald Whiddon (Whiddon) appeals the denial of his applications for
Social Security benefits. Whiddon argues that new medical evidence he submitted to the
Social Security Appeals Council has a reasonable probability of establishing that he is
disabled and, thus, he requests remand. Pl.’s Br. (Doc. 12) at 6-7. Whiddon’s new medical
evidence is both chronologically relevant and material, and the Court therefore
REVERSES the Commissioner’s decision and REMANDS this case for consideration of
the new evidence.
I.

JURISDICTION & PROCEDURAL HISTORY
Whiddon filed applications for disability insurance benefits (DIB) and supplemental

security income (SSI) on April 10, 2017, alleging a disability onset date of April 1, 2017.

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Kilolo Kijakazi, the acting Commissioner of the Social Security Administration, is substituted for Andrew
Saul as Defendant in his official capacity in this action. See FED. R. CIV. P. 25(d)(1).

(Tr. at 18).2 Following a hearing, the administrative law judge (ALJ) found that Whiddon
was not disabled. Id. at 18-27. Whiddon filed a request for review and submitted additional
evidence to the Appeals Council. Id. at 1-2. The Appeals Council denied review on
January 10, 2020, id. at 8-11, and the ALJ’s decision became the final decision of the
Commissioner of Social Security (the Commissioner). See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). This Court has jurisdiction to review the Commissioner’s final
decision pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 405(g).3
II.

STATUTORY FRAMEWORK
The Social Security Act establishes the framework for determining who is eligible

to receive Social Security benefits. Martin v. Sullivan, 894 F.2d 1520, 1530 (11th Cir.
1990). An ALJ must evaluate an application for a period of disability or disability
insurance benefits (or both) pursuant to a five-step process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or medically equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subt. 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?
20 C.F.R. § 404.1520(a). “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

“Tr.” consists of a consecutively paginated record of the administrative proceedings below and spans from
ECF Doc. 14-1 to ECF Doc. 14-8. For clarity and consistency with the parties’ briefs, the Court cites to the
consecutive pagination instead of the ECF pagination.
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Pursuant to 28 U.S.C. § 636(c), both parties have consented to the undersigned Magistrate Judge
conducting all proceedings and entering final judgment in this case. Pl.’s Consent to Jurisdiction (Doc. 16);
Def.’s Consent to Jurisdiction (Doc. 15).
2

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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).4 A claimant bears the burden of proof
through step four. See Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). The burden
shifts to the Commissioner at step five. Id.
To perform the fourth and fifth steps, the ALJ must first determine the claimant’s
Residual Functional Capacity (“RFC”). Phillips v. Barnhart, 357 F.3d 1232, 1238-39
(11th Cir. 2004). The RFC is what the claimant is still able to do, despite the claimant’s
impairments, based on all relevant medical and other evidence. Id. The RFC may contain
both exertional and non-exertional limitations. Id. at 1242-43. Considering the claimant’s
RFC, the ALJ determines, at step four, whether the claimant can return to past relevant
work. Id. at 1238. If a claimant cannot return to past work, the ALJ considers, at step five,
the claimant’s RFC, age, education, and work experience to determine if there are a
significant number of jobs available in the national economy the claimant can perform. Id.
at 1239. To determine if a claimant can adjust to other work, the ALJ may rely on: (1) the
Medical Vocational Guidelines,5 or (2) the testimony of a vocational expert (VE).6 Id.

4

McDaniel is a supplemental security income (“SSI”) case. SSI cases arising under Title XVI of the Social
Security Act are appropriately cited as authority in Title II cases and vice versa. See, e.g., Smith v. Comm’r
of Soc. Sec., 486 F. App’x 874, 875 n.* (11th Cir. 2012) (per curiam) (“The definition of disability and the
test used to determine whether a person has a disability is the same for claims seeking disability insurance
benefits or supplemental security income.”).

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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 to determine whether there is work in
the economy that the claimant can perform. 20 C.F.R. Pt. 404, Subt. P, App. 1 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 statutorily-required finding of “Disabled” or “Not Disabled.” Id.

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A VE is an “expert on the kinds of jobs an individual can perform based on his or her capacity and
impairments.” Phillips, 357 F.3d at 1240.

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at 1239-40.
III.

ADMINISTRATIVE PROCEEDINGS
Whiddon was 48 years old on his alleged disability onset date. (Tr. at 25). He had

a high school education, additional trade school training, and past relevant work experience
as an auto mechanic. Id. at 179. He alleged disability due to a spinal injury he suffered in
a rollover automobile accident on April 1, 2017. Id. at 23, 178, 187.
At step one, the ALJ found that Whiddon had not engaged in substantial gainful
activity since his alleged onset date. Id. at 20. At step two, the ALJ found that he had the
following severe impairments: thoracic fracture (status post-surgery), cervical
degenerative disc disease, right shoulder degenerative joint disease, and obesity. Id. At
step three, the ALJ determined that Whiddon’s impairments did not meet or medically
equal an impairment listed in 20 C.F.R. Pt. 404, Subt. P, App. 1. Id. at 22. The ALJ then
determined that Whiddon had the RFC to perform light work with additional limitations.
Id.
At step four, the ALJ found that Whiddon was unable to perform his past relevant
work as an auto mechanic because the demands of this work exceeded his RFC. Id. at 25.
However, at step five, the ALJ determined that, “[c]onsidering the claimant’s age,
education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can perform[.]”

Id.

Therefore, the ALJ concluded that Whiddon had not been disabled within the meaning of
the Social Security Act from his alleged onset date of April 1, 2017, through the date of
her decision on January 14, 2019. Id. at 26-27.
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Whiddon requested review of the ALJ’s decision by the Appeals Council. Id. at 8.
He submitted new medical evidence consisting of a two-page record signed by Dr. Timothy
Holt of the Montgomery Spine Center on April 4, 2019. Id. at 1-2, 9. Dr. Holt opined that
Whiddon had severe limitations on standing, sitting, overhead work, and using his arms
away from his body. Id. at 2. Dr. Holt opined: “I doubt he would be able to return to gainful
employment.”

Id. The Appeals Council determined that, because the new medical

evidence postdated the ALJ’s decision, the evidence was not chronologically relevant to
the period of alleged disability at issue. Id. at 9. It advised Whiddon that “if you want us
to consider whether you were disabled after January 14, 2019, you need to apply again,”
and denied his request for review. Id.
IV.

ANALYSIS
Whiddon argues that his case should be remanded because there is a reasonable

probability that the additional medical evidence he submitted to the Appeals Council would
change the outcome of the decision. Pl.’s Br. (Doc. 12) at 6-7. Generally, a claimant may
present evidence at each stage of the administrative process. Ingram v. Comm’r of Soc.
Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). The Appeals Council must consider
evidence submitted after the ALJ’s decision if it is new, material, and chronologically
relevant. Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1309 (11th Cir. 2018);
Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015). New
evidence is material if there is a reasonable probability that it would change the agency’s
decision and chronologically relevant if it relates to the period between the claimant’s
alleged onset date and the ALJ’s decision. Hargress, 883 F.3d at 1309. The Appeals
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Council’s refusal to consider new evidence and denial of review is subject to de novo
review in the district court. Washington, 806 F.3d at 1321.
A.

Chronological Relevance

Here, the Appeals Council refused to consider Whiddon’s new evidence concluding
that it was not chronologically relevant. (Tr. at 9). Whiddon makes no argument
addressing the chronological relevance issue. Pl.’s Br. (Doc. 12) at 6-7; Def.’s Br. (Doc.
13) at 4. Rather, he simply argues that his new evidence is material. Pl.’s Br. (Doc. 12) at
6-7. Under some circumstances, medical opinions given after the ALJ’s decision may still
be chronologically relevant. Griffin v. Soc. Sec. Admin., Comm’r, 842 Fed. App’x 339,
341 (11th Cir. 2021). For example, in Washington v. Soc. Sec. Admin., Comm’r, the
Eleventh Circuit held that a psychologist’s opinion based on an evaluation conducted
approximately seven months after the ALJ’s decision was chronologically relevant
because: (1) the claimant described mental symptoms that occurred throughout his life, (2)
the psychologist reviewed claimant’s mental health records from the relevant period, and
(3) there was no evidence that the claimant’s cognitive abilities declined after the ALJ’s
decision. 806 F.3d at 1322-23. Notably, the Eleventh Circuit limited its holding in
Washington to the specific circumstances of that case. Id. at 1323.
The period of disability at issue began on April 1, 2017, when Whiddon broke his
back in a rollover car accident, and ended on January 14, 2019, when the ALJ issued her
decision. (Tr. at 27, 240). Whiddon was admitted to Baptist Medical Center South (Baptist
South) through the emergency room (ER) following the accident and diagnosed with, inter
alia, a broken back at the T10 and T11 vertebrae in his thoracic spine. Id. at 245. Dr. Holt
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performed a posterior fusion with rods and screws at the T8-9, 9-10, 10-11, 11-12, and 121 vertebrae on April 3, 2017. Id. at 491-93. He was discharged from Baptist South three
days later on April 6, 2017. Id. at 301.
In the year after the spinal fusion surgery, Dr. Holt saw Whiddon four times for
follow-up. On May 25, 2017, approximately two months after the surgery, Dr. Holt noted
that x-rays showed that the rod and screw device was in a good position, that a good bone
graft had formed, and that the fusion appeared solid. Id. at 526. He also noted that two
views of the shoulder showed degenerative changes at the acromioclavicular joint “with a
little bit of subluxation of the AC joint.” Id. On physical exam, Dr. Holt noted that motor
testing is 5/5, sensory is intact, and the wound looks good. Id. He noted that Whiddon was
complaining of pain in the right shoulder and determined that he probably does have a
grade one or two sprain or strain of the acromioclavicular joint. Id.
Two months later, on July 27, 2017, Dr. Holt saw Whiddon again. Id. 523-24. Xrays from this visit showed that the rod and screw device was in a good position, that good
bone graft was forming, and that Whiddon’s cervical spine showed some degenerative
changes especially at C5-6 and C6-7. Id. at 523. Dr. Holt’s overall impression was that
“[h]is spine fracture looks great.” Id. He noted that Whiddon had a little bit of back pain,
but “overall he says he is doing really well.” (Tr. 523). Dr. Holt stated that “[h]e can
increase his activity.” Id. He noted that Whiddon still complains of pain in his right
shoulder, but “I explained to him that is not really something we deal with.” Id.
Dr. Holt next saw Whiddon on January 4, 2018. Id. at 521. At this point, Whiddon
was “about nine months out from the broken back and fusion. He is doing well. He states
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his back feels really good.” Id. X-rays showed that the old fusion looked good, that the
rod and screw device were still well positioned, and that the screws had not failed. Id.
Dr. Holt noted that he is neurologically intact, his range of motion is good, and the wounds
look fine. Id. Dr. Holt ordered Whiddon “back in three months,” or roughly “one year out
from his surgery.” Id.
Approximately one year after the back surgery, on April 6, 2018, Dr. Holt saw
Whiddon again. Id. at 518-19. During this visit, Whiddon reported that “he is doing very
well with his back other than some tightness if he walks too much.” Id. 518. X-rays
showed the rod and screw device were well positioned and that the bone graft appeared to
be incorporated. Id. at 519. Physical examinations showed that Whiddon’s “motor testing
is 5/5” and his “wound looks great.” Overall, Dr. Holt noted, “He is doing well.” However,
Whiddon had “difficulty walking, unexplained back pain, and inability to exercise.” Id. at
518. Dr. Holt ordered, “For right now, we will follow him along. I will see him back here
in one year just to see how things are coming along.” Id. at 519.
Whiddon’s new evidence concerns the office visit with Dr. Holt on April 4, 2019,
approximately one year after his prior visit and three months after the ALJ’s decision. Id.
at 1-2. This was the follow-up interval Dr. Holt ordered on April 6, 2018. Id. at 519. In
the “chief complaint” section, Dr. Holt noted that “Patient [is] here for routine follow-up
and to discuss work status. He is having increasing thoracic and right shoulder pain. It is
impossible for him to lift heavy objects.” Id. at 1. In the “musculoskeletal” section, he
noted that “Patient is positive for Difficulty Walking, Unexplained Back Pain, [and]
Inability to Exercise.” Id.
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These are exactly the same symptoms Whiddon showed in April 2018. Id. at 518.
Dr. Holt noted that Whiddon “comes in today for follow-up. He is doing reasonably well.
He still has back pain which we would expect secondary to the nature of the original
injury.” Id. at 1. Physical examination showed that “[n]eurologically he is intact. Range
of motion is limited. The wound looks fine. Everything seems to be doing reasonably
well.” Id. at 2. Dr. Holt makes no finding that Whiddon’s condition had changed or
significantly degraded in any way. X-rays continued to “show the fracture with the rod
and screw device is in good position. The fracture appears to be healed. The fusion is
solid.” Id. However, “[h]e has a chronic AC separation with elevation of the clavicle and
partial dislocation with arthritis of the acromioclavicular joint.” Id.
All of these notations show that Dr. Holt was considering Whiddon’s recovery from
the broken back and other trauma he suffered in the rollover car accident on April 1, 2017,
not a new condition or change in condition that arose after January 14, 2019, the date of
the ALJ’s decision. Most tellingly, in the “impression/plan” section of his note, Dr. Holt
stated that, “[a]s to his work status, maybe there was some confusion.” Id. This shows
that Dr. Holt was looking backward in time to clarify confusion from his prior records, not
forming a new impression or diagnosis based on changes in Whiddon’s condition.
Accordingly, although Dr. Holt’s April 4, 2019 record postdates the ALJ’s decision, it still
concerns the traumatic injury he suffered during the period of disability at issue and is
therefore chronologically relevant. See Washington, 806 F.3d at 1322-23.

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B.

Materiality

New evidence is material if there is a reasonable probability that it would change
the agency’s decision. Hargress, 883 F.3d at 1309. Whiddon argues that Dr. Holt’s new
record could reasonably have resulted in greater exertional limitations in Whiddon’s RFC,
which could reasonably have changed the outcome of the decision. Pl.’s Br. (Doc. 12)
at 6-7.

The Commissioner makes no argument concerning materiality.

Def.’s Br.

(Doc. 13) at 1-8.
In her decision, the ALJ found that Whiddon had the RFC to perform light work
with additional limitations of standing and/or walking for up to 4 hours per 8-hour workday
and occasionally reaching overhead bilaterally. (Tr. at 22). In Whiddon’s new evidence,
Dr. Holt opines that Whiddon “cannot do any work where he has to stand for any period
of time greater than an hour or maybe even an hour and a half” and that “[h]e will not be
able to do any sort of work where he has to work overhead or away from his body using
his arms.” These findings directly contradict the limitations in the ALJ’s RFC calculation.
In addition, Dr. Holt finds that “[h]e cannot sit for long periods of time either
secondary to the fact that we know sitting is the worst position for his lower back.” Id.
at 2. Dr. Holt states that “[n]eurologically I think he is doing all right, but from a
mechanical standpoint, he will be markedly limited as to his abilities in the future” and
“would have to be able to go from sitting to standing to possibly even lying down on
occasion to allow him the ability to allow his back to recover.” Id. He also found that
Whiddon “does have marked degeneration of his right shoulder with acromioclavicular
separation and arthritis.” Id.
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The ALJ relied on Dr. Holt’s records in determining Whiddon’s RFC, and it is likely
that she would change her RFC determination upon consideration of the new evidence. Id.
at 23-24; see also Phillips, 357 F.3d at 1240 (explaining that the opinion of a treating
physician must be given substantial or considerable weight unless good cause is shown to
the contrary). There is a reasonable probability that a reduced RFC would change the
Commissioner’s determination that Whiddon is capable of making a making a successful
adjustment to other work that exists in significant numbers in the national economy and
the finding that he is not disabled. Accordingly, the new evidence is material.
V.

CONCLUSION
For these reasons, the Court finds that Whiddon’s new evidence is chronologically

relevant and material. The Court therefore REVERSES the Commissioner’s decision and
REMANDS this case for consideration of that evidence in conjunction with the record as
a whole. The Court will enter final judgment by separate order.
DONE this 16th day of July, 2021.

Stephen M. Doyle
CHIEF U.S. MAGISTRATE JUDGE

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