Black v. Astrue (CONSENT)

Filing 20

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 3/27/2013. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JOE VIRGIL BLACK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendants.

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CIVIL ACT. NO. 3:11CV1008-CSC
(WO)

MEMORANDUM OPINION
On March 3, 2009, the Plaintiff, Joe Virgil Black, protectively filed applications for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et
seq., and for supplemental security income under Title XVI of the Social Security Act, 42
U.S.C. § 1381, et seq. (R. 168-172). Black alleged that his date of disability onset was
January 3, 2009. (R. 168, 170). His application was denied at the initial administrative level.
Black then requested and received a hearing before an Administrative Law Judge (“ALJ”).
On July 2, 2010, following the hearing, ALJ Maria Kusznir also denied the claim. (R. 44).
On September 28, 2011, the Appeals Council rejected a subsequent request for review. (R.
1). The ALJ’s decision consequently became the final decision of the Commissioner of
Social Security (“Commissioner”). See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

1986).2 The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and
1383(c)(3). Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final
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 claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’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 claimant unable to perform his or former occupation?
(5) Is the claimant 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
2

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.
3

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

2

answer 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
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.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). “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). 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 (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
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. ISSUES
A. Introduction.

Black was born on March 23, 1959. (R. 168). He has a twelfth

4

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. See Sullivan v. Zebley, 493 U.S. 521,525 n.3
(1990). Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Sullivan,
493 U.S. at 525 n.3; Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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grade education. (R. 57). His past work experience includes work as a commercial longhaul truck driver. (R. 59-60). He alleges that he cannot work due to loss of vision, back
pain, and paranoia. (R. 60, 63, 65). Following the administrative hearing, the ALJ concluded
that Black had severe impairments of mild facet arthropathy and maculopathy, but that the
record did not support a finding that his alleged mental impairment a severe impairment. (R.
23-34).
The ALJ further concluded that Black’s impairments or combination of impairments
did not meet or medically equal one of the listed impairments in 20 C.F.R. Pt. 404, Subpt.
P, Appendix 1. (R. 34-36). The ALJ determined that Black had the residual functional
capacity
to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
except the claimant cannot climb ladders, ropes, or scaffolds. He can
occasionally climb ramps and stairs; however, he should always use a handrail
when traversing either. He can frequently balance, stoop, kneel, crouch, and
crawl. His ability for depth perception and accommodation is limited. The
claimant will therefore have some difficulty with near visual details, including
work with very small objects such as beads and threads. He will experience
difficulty reading print-sized material such as that found in a telephone book.
Tasks needing good depth perception will be precluded. The operation of
commercial motor vehicles will be precluded. Unprotected heights and
hazardous machinery will be precluded. He should be able to avoid common
hazards in the workplace such as objects in the pathway since there is no
peripheral visual field defect. At all times relevant, the claimant was limited
to simple repetitive work consistent with unskilled work activity. As of May
2010, the claimant could not work with the public on more than a minimal and
limited basis, and should have no more than occasional contact with
coworkers.
(R. 36).

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The ALJ concluded that Black was unable to return to his past relevant work. (R. 42).
However, the ALJ concluded that Black did have the residual functional capacity to perform
other light, unskilled jobs that exist in significant numbers in the national economy, and thus,
he was not disabled. (R. 43).
B. Issues. According to the plaintiff, the primary issues are as follows:
1.

Whether the ALJ committed reversible error in relying on information
in a residual functional capacity assessment completed by a single
decision maker; and

2.

Whether, in light of new material presented to the Appeals Council, the
Appeals Council erred in affirming the decision of the ALJ.

(Doc. 12 p. 3).
IV. Discussion
A.

The ALJ did not err in determining Black’s residual functional capacity.
An ALJ is required to independently assess a claimant’s residual functional capacity

(“RFC”)5 “based upon all of the relevant evidence.” 20 CFR § 404.1545(a)(3) (“We will
assess your residual functional capacity based on all of the relevant medical and other
evidence.”); 20 C.F.R. § 404.1546(c) (“Responsibility for assessing residual functional
capacity at the administrative law judge hearing . . . level. If your case is at the administrative
law judge hearing level . . ., the administrative law judge . . . is responsible for assessing your
residual functional capacity.”); see also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.

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“[R]esidual functional capacity is the most [a claimant] can still do despite [his or her] limitations.”
20 C.F.R. § 404.1545(a)(1).

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1997) (“The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant's remaining ability to do work despite his impairments.”).
Black argues that, in considering the limiting effects of his visual impairments, the
ALJ failed in her duty to independently assess his RFC because the ALJ commented that she
“relied on” an RFC assessment that was completed by a single decision maker (“SDM”)6 in
consultation with nontreating reviewing physician Dr. James B. Kelly. (R. 37, 281). In
support of his argument, Black cites an internal Social Security Administration Memorandum
and another case from this district holding that an ALJ is not entitled to rely on the opinion
of a non-physician SDM as evidence of the claimaint’s RFC. See Doc. 12-1 (May 19, 2010
Social Security Memorandum) (directing that ALJs are not permitted to treat the SDM’s
assessment as non-medical opinion evidence); see also Watson v. Astrue, Case no. 10-cv837-WC (September 14, 2011 Memorandum Opinion and Order, pages 5-8) (reversing the
denial of benefits on grounds that the ALJ rejected the treating physician’s opinion of the
claimant’s RFC, and instead “relied on the SDM’s opinion” as expert opinion evidence, even
though the SDM was not a medical source). Cf. Siverio v. Commissioner of Social Sec. 461
Fed. Appx. 869, 872 (11th Cir. 2012) (unpublished opinion) (holding that the SDM’s RFC
assessment was not entitled to weight as an “expert opinion” because the SDM had “no
6

“SDMs are part of a test program of the Social Security Administration for making initial disability
determinations by non-medical experts. 20 C.F.R. § 404.906(a).” Chaverst v. Astrue, 2012 WL 5379063 at
*8 (N.D. Ala. 2012). “Alabama is one of the states in which these modifications are being tested. 71 Fed.
Reg. 45,890 (August 10, 2006). . . . Under [the SDM] model, a single decision maker will make the disability
determination and may also determine if other conditions for entitlement to benefits based on disability are
met. Under this plan, a signature from a medical or psychological consultant is not required on disability
determination forms. 20 C.F.R. § 404.906.” Id. at *9 (citation omitted).

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apparent medical credential”).
However, in this case, the ALJ did not abandon her task of assessing Black’s residual
functional capacity to the SDM’s opinion, but, as required by 20 C.F.R. § 404.1546(c), the
ALJ independently assessed Black’s residual functional capacity based on all of the evidence
in the record. See Lewis, supra. It is further clear from the context of the ALJ’s opinion, and
from the record as a whole, that the ALJ relied on the SDM’s RFC assessment as evidence
only insofar as it reported the opinion of Dr. Kelly, the state agency consulting physician.
Specifically, with respect to the extent to which Black’s vision problems caused
functional limitations, the ALJ explained:
As previously noted, the claimant alleged only the ability to see out of his right
eye as the basis for disability. He completed a functional report in which he
attributed virtually all limitation to visual impairment of his right eye (Exhibit
5E). Although he noted several limitations, he did not report total lack of
vision in the performance of any activity. In fact he initially reported that he
does drive and then he annotated that he does not. However, even in this area
he wrote “sight is being lost in eye” (Id. at 5) (emphasis added indicating
impairment of only one eye). He provided no evidence of significant limitation
in the “better” eye. As to other physical limitation the claimant revealed no
limitation in lifting, bending, squatting, standing, reaching, walking, sitting,
kneeling, hearing (see discussion above regarding Listing 1.00), or stair
climbing. The use of his hands was unfettered (Id. at 7) (emphasis added). It
should be noted that the record was void of any report of pain []associated with
the claimant’s eyes.
As I previously shared, the claimant appealed the State agency action. He did
report worsening vision from the right eye. However, beyond that report he did
not reveal any evidence of any additional limitation involving his other eye or
any other part of his body (Exhibit 8E). His written reports, individually and
combined, provide no bases for a conclusion that the claimant suffered any
physically disabling impairment.

7

On the basis of Dr. Kelly’s review, I concluded the claimant does suffer
significant visual limitation in the right eye. After failing the vision portion of
the test to retain his commercial driver's license, the claimant sought several
opinions. The first opinion in the evidence came around February 3, 2009. A
physician at Visionamerica of Birmingham, noted problems with the right eye
and none with the left (Exhibit 4F, pgs 11, 14). On February 23, 2009,
physicians with Retina Consultants of Alabama, P.C., examined the claimant
and offered the opinion that he suffered athrophic maculopathy of the right
eye. The notes suggest it was secondary to posttraumatic asymmetric dystrophy
(Exhibit 3F, pg 3). The notes suggest that the left eye was functioning
normally (Id. at 2). The notes also do not provide any indication that the
claimant is blind out of either eye. Additionally, no specific limitations were
provided.
The claimant submitted his claim the day after his visit to Retina Consultants.
The claimant returned to Visionamerica on March 13, 2009. Consistent with
the claimant's application and written reports, there were no indications of
limited vision with the left eye (Exhibit 4F, pg 2). Also consistent with the
claimant's allegations there were no indications that the claimant was blind out
of either eye. Apart from operating commercial vehicles the treatment records
reveal no other specific limitation. The record is void of any additional testing
or treatment after March 13, 2009. By April9, 2009, the State agency, at the
direction of Dr. Kelly, provided the diagnosis and limitations I have relied on
in my decision (Exhibit 7F [i.e., the SDM’s RFC assessment]). I gave Dr.
Kelly's opinion great weight as it is consistent with and supported by the
objective, subjective, and medical evidence provided by the claimant to that
point. Despite no further testing or treatment, the claimant appealed the State
decision and reported that his vision had worsened. Once again, it must be
noted that the record is void of any reports of pain related to his eyes.
The record is void of any additional medical evidence of testing or treatment
surrounding limited vision after this time, and thus, there is no evidence of
progression. Based on the evidence before me Dr. Kelly’s opinion is not
contradicted either by contemporary subjective report and medical evidence
or medical evidence contemporary with the intervening period and the hearing.
(R. 36-37) (last emphasis added).
The court is mindful of its responsibility to “scrutinize the record in its entirety to

8

determine the reasonableness of the [Commissioner's] . . . factual findings.” Walker v.
Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The court has independently considered the
record as a whole and finds that the record provides substantial support for the ALJ’s
conclusions. Based on Dr. Kelly’s review, the ALJ found that Black “does suffer significant
visual limitation in the right eye.” (R. 37). On a number of occasions, Black’s treating
physicians diagnosed maculopathy in his right eye. (R. 256, 260, 264, 270, 289-333, 335-37,
346-47, 378-87, 427-38). The treating physicians’ records do not contain evidence support
a finding of limited vision in the left eye beyond the general visual limitations found in the
ALJ’s RFC determination, and Black does not argue that such evidence exists. (See R. 34647 (“[W]ith correction the patient is 20/200 in the right eye and 20/40 in the left eye”)).
Accordingly, with respect to Black’s visual impairments, the ALJ’s residual functional
capacity assessment is consistent with the opinions of Dr. Kelly as reported by the SDM, and
with the medical record as a whole. The SDM stated that she consulted with Dr. Kelly in
making her RFC assessment. (R. 281). In the RFC assessment, the SDM specifically stated
that Dr. Kelly had opined that Black “should always use a handrail when climbing ramps or
stairs. He should never use ladders, ropes, or scaffolds.” (R. 282). The SDM also noted Dr.
Kelly’s opinion that Black “will have some difficulty with near visual details, including work
with very small objects such as beads and threads or reading telephone book size print.
Tasks needing good depth perception will be precluded. Operation of commercial motor
vehicles will be precluded. Unprotected heights and hazardous machinery will be precluded.

9

[Black] should be able to avoid common hazards in the workplace such as objects in the
pathway since there is no peripheral visual field defect.” (R. 283). The SDM also cited Dr.
Kelly’s opinion that Black “should avoid hazardous machinery and unprotected heights. He
should not operate commercial motor vehicles.” (R. 284). The SDM also reported Dr.
Kelly’s opinion that Black “alleges right eye problems consistent with [right eye]
maculopathy. The severity of the symptoms of monocular vision and its alleged effect on
function with driving, depth perception, and fine visual discrimination is consistent with the
MDI [sic]. The claimant’s complaints are credible.” (R. 285 (emphasis added)).
Black has cited no evidence from the record to contradict the ALJ’s RFC
determination, and, as the ALJ noted, the opinions of Black’s own treating physicians are
consistent with the opinion of Dr. Kelly (who, incidentally, adopted the diagnosis of Dr.
Martin L. Thomley, one of Black’s treating physicians) (R. 255-56, 259-61, 276, 335-37).
An ALJ is entitled to rely on the opinion of a nonexamining reviewing physician whose
opinion is supported by the record. See Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir.
1987) (“The opinions of nonexamining, reviewing physicians, . . . when contrary to those of
examining physicians, are entitled to little weight in a disability case, and standing alone do
not constitute substantial evidence.” (Emphasis added.)); see also Villa v. Sullivan, 895 F.2d
1019, 1024 (5th Cir.1990) (holding that an ALJ may rely on the assessment of a
nonexamining doctor whose opinion is based on careful evaluation of the medical evidence,
is not the sole medical evidence upon which the ALJ relies, and is supported by or does not

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contradict the opinion of the examining doctor).
Nevertheless, Black attempts to make an issue out of the fact that Dr. Kelly did not
personally sign the RFC containing the SDM’s report of his comments. However, Black
does not cite any legal authority for the proposition that it would be error for the ALJ to rely
on the accuracy of SDM’s record of what a consulting physician told her, particularly where,
as here, the consulting physician concluded that the claimant’s complaints are credible and
where the remarks of the consulting physician are consistent with the medical record,
including the opinions of the claimant’s treating physicians. The ALJ’s one sentence
comment indicating that she “relied on” the RFC assessment does not constitute reversible
error because the ALJ expressly assigned of “great weight” to medical source opinions (not
to the opinion of the SDM), the ALJ considered whether the medical record as a whole
supported the RFC determination, and the record as a whole does in fact substantially support
the ALJ’s conclusion. Cf. Castel v. Comm’r of Soc. Sec., 355 Fed. Appx. 260, 265-66 (11th
Cir. 2009) (unpublished opinion) (“This Court does not need to determine” whether the SDM
or the consulting physician “signed the [RFC assessment] in question. The ALJ references
the [RFC assessment] at issue in two sentences, but dedicates two paragraphs to the reports
of Drs. Adam and Cusco. The record does not reflect that the ALJ placed great weight on the
[RFC asessment], as [the claimant] contends. Rather, the evaluations by Drs. Adam and
Cusco seem to have been the primary basis for the ALJ's decision. The [SDM’s] report
merely confirmed this objective medical evidence. This Court does not find any error caused

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by the ALJ's reference to this [RFC assessment], and to the extent that one could argue that
the ALJ erred, the error would not rise above the level of harmless error.”).
Accordingly, the court finds that the ALJ did not commit reversible legal error and
that the ALJ’s RFC determination is supported by substantial evidence.
B.

The Appeals Council did not err in affirming the ALJ’s decision despite new
evidence presented by Black.
Black argues that new evidence submitted to the Appeals Council demonstrates that

his mental impairment is severe, contrary to the ALJ’s determination. When “new and
material evidence is submitted, the Appeals Council shall consider the additional evidence
only where it relates to the period on or before the date of the administrative law judge
hearing decision. The Appeals Council shall evaluate the entire record including the new and
material evidence submitted if it relates to the period on or before the date of the
administrative law judge hearing decision. It will then review the case if it finds that the
administrative law judge's action, findings, or conclusion is contrary to the weight of the
evidence currently of record.” 20 C.F.R. §§ 404.970(b), 416.1470(b).
There is no indication that the new evidence pertains to the period on or before July
2, 2010, the date of the ALJ’s decision.7 The new evidence Black submits as grounds
7

No argument can be made that the ALJ failed in her duty to adequately develop the record with
respect to her efforts to obtain Dr. Rowe’s opinion. The court notes the ALJ’s substantial efforts to obtain
all relevant medical documentation from Black’s mental health providers, as documented in her opinion:
The representative expressed a need to keep the record open for submission of additional
evidence. Four months later, she submitted two exhibits. One was an update from Dr. Bartel
whose records were previously submitted at Exhibit 8F and 9F. The updates are now
admitted as Exhibit 12F. There was also substantial discussion during the hearing as to the

12

claimant's psychological impairments. I have discussed this issue below in more detail.
However, I note that the representative also submitted treatment records from Dr. Rowe,
now admitted at Exhibit 13F.
....
[T]he claimant must furnish medical and other evidence that we can use to reach
conclusions about medical impairment(s) and, if material to the determination of disability,
its effect on the ability to work on a sustained basis. The regulations further specify that we
will consider only impairment(s) the claimant tells us about or about which we receive
evidence. We make every reasonable effort to obtain all relevant and available medical
evidence about mental impairment(s), including its history, and any records of mental status
examinations, psychological testing, and hospitalizations and treatment. Although these
same regulations indicate that we will assist the claimant in developing the medical record,
it remains incumbent on the claimant to make the Agency aware of the information that is
needed. Obviously, the claimant did not make the Agency aware of a mental impairment or
oftreating records at the time of application; at the time of the completion of the functional
report; or upon requesting the hearing (See Introductory Listing 12.00D and Dla and 20 CFR
404.1512, 416.912).
Despite reports of an alleged twenty year treatment history for psychosis-including
hospitalizations-at the time of the hearing, the claimant's representative, provided me only
with evidence of treatment dating back only to May 2008 (Exhibit 10F, pg 2). I asked the
claimant and his representative what other documentation might exist to demonstrate the
existence of a 20 year long impairment. The claimant stated that he had had treatment
previously for this condition with Dr. Ready, approximately 6 years earlier, and a
hospitalization 20 years ago. The representative maintained that she had attempted to obtain
the hospitalization records from 20 years ago, but reported that these are unavailable due to
remoteness. The representative also reported that she wrote to Dr. Ready and the hospital
where she practiced, but the source reported that there are no records for this claimant.
When I asked when he started with Dr. Lusche, the claimant said that treatment there
commenced six or seven years earlier, after Dr. Ready left the area. I asked the
representative if the Exhibit at 10F demonstrating treatment only to May 2008 were the only
record available, and she stated that this was all that could be procured. The regulations only
require that the Agency develop the record for the 12 months preceding the filing date,
unless there is a reason to believe that earlier development is necessary. The filing date was
February 2009, and the May 2008 records fall somewhat short of the 12 month development
timeline suggested by the regulations. However, the representative offered that there was
nothing earlier. Even so, the alleged onset date was only January 2009, and thus, only one
month before the application date. Therefore, Dr. Lusche’s May 2008 records served to
document 8 months of treatment prior to the alleged onset date, and thus are adequate for
decision making. Nonetheless, I encouraged the representative to obtain anything else she
felt relevant and supportive ofthe claimant’s allegations about the long standing psychosis
and attendant difficulties. Consequently, I left the record open for the claimant and his
attorney to present such evidence. No additional evidence was submitted and as the
representative indicated that records were not available, and I concluded that the record is

13

for reversal are two medical source opinion forms completed after the ALJ’s July 2, 2010
decision; one form was completed by Dr. Heather Rowe on July 19, 2010, and the other was
completed by Dr. Rowe and a counselor on November 22, 2010. (Doc. 12 p. 7; R. 245-47,
439-40). Dr. Rowe’s July 19, 2010 medical source opinion does not indicate that it pertains
to the period before July 3, 2010, as it consists only of checkmarks in various boxes on a
form indicating her opinion as to the extent of Black’s mental limitations, with no written
explanations. (R. 246-47). The November 22, 2010 form also consists mostly of checked
boxes, but includes limited written commentary. (R. 439-440). Notably, the comments on
the November 22, 2010 form state that stress from being unable to work caused Black to
decompensate, that Black was withdrawn, irritable, angry, and limited in his ability to interact
with others and respond appropriately in a work setting, and that the mental limitations
indicated on the form were first found to be present in July and August 2010. (R. 440). As
the limitations in the July 19, 2010 medical source opinion are consistent with those in the

complete. However, while drafting this decision, the representative submitted additional
records four months later from Dr. Rowe that also represent treatment for psychological
issues.
I have considered all that was submitted, but the record before me does not support a finding
that the claimant has a severe mental impairment.
(R. 21, 27-28).
Clearly, up until the date the ALJ issued her opinion, the ALJ actively undertook extensive efforts
to obtain and consider evidence of Black’s alleged mental disorder, including medical records and opinions
from Dr. Rowe (which were provided while the ALJ was drafting the opinion). Under the circumstances,
the fact that the additional evidence from Dr. Rowe was not submitted to the Commissioner until after the
ALJ issued her opinion further confirms that the additional evidence does not pertain to the time period on
or before the date of the ALJ’s opinion.

14

November 22, 2010 medical source opinion, there is no basis to conclude that any of the
limitations in either document were first found to be present before July and August 2010.8
(R. 440, 246-47).
Black argues, nevertheless, that the new evidence is material to the case because, in
finding that Black did not meet the listing, the ALJ stated that the medical record indicated
no prognosis, but, “[g]iven the claimant's stability for a long period of time, including his 23
year history of successful work, I am apt to believe he will continue to improve with
intervention and medication compliance.” (R. 34).

Even if, as Black argues, the new

evidence provides some indication that the ALJ was wrong about what might happen after
the date of her decision, any failure by the ALJ to accurately prognosticate the future is not
material to her opinion. The ALJ followed her comment about the likelihood of future
improvement with the following statements: “However, even if the claimant did not steadily
improve, at most, I would find that he had no impairment in his activities of daily living as
a result of the disorder. . . . [E]ven if I concluded that he would not improve within 12
months, this would not support a finding that he met a listing according to the next, third step
that I consider below.” (R. 34 (Emphasis added.)). Thus, the ALJ’s comment about Black’s
likelihood of future improvement was not material to her decision. See 20 C.F.R. §§
404.970(b), 416.1470(b) (providing that “[t]he Appeals Council shall evaluate . . . new and

8

The court notes that, following a second application for benefits that is not at issue in this appeal,
the Commissioner has deemed Black to be disabled as of July 3, 2010, the day after the issuance of the ALJ's
opinion in this case. (Doc. 12-4).

15

material evidence . . . if it relates to the period on or before the date of the administrative law
judge hearing decision” (emphasis added)).
Because the new evidence is not material and because it does not pertain to the period
on or before the date of the ALJ’s decision, the Appeals Council was not required to remand
the case in light of that evidence. See 20 C.F.R. §§ 404.970(b), 416.1470(b).
CONCLUSION
For the reasons as stated, the court concludes that the decision of the Commissioner
denying benefits to Black should be affirmed.
The Court will enter a separate final judgment.
Done this 27th day of March, 2013.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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