Mahan v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/24/12. (KGE, )

FILED
2012 Aug-24 PM 04:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL WAYNE MAHAN,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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2:11-CV-01623-LSC

MEMORANDUM OF OPINION
I.

Introduction
The Plaintiff, Michael W. Mahan, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying his
application for Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”). Plaintiff timely pursued and exhausted his administrative remedies,
and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§
405(g), 1383(c)(3).
Plaintiff was fifty years old at the time of the Administrative Law Judge’s
(“ALJ’s”) decision, and he has a high school education. (Tr. at 17, 60.) His past work
experience includes employment as warehouse manager. Id. at 75. Plaintiff claims that

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he became disabled on February 10, 2008, due to back pain, hypertension, and
diabetes. Id.; (Tr. at 95, 122-27, 128-36, 143-48, 151.)
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§
404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination of whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner next considers the effect of all of the physical and mental impairments
combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be disabled. Id. The decision depends on the medical evidence in the record.
See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments
are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Otherwise, the analysis continues to step three, which is a determination of whether
the claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1.

20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration.
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Id.

If they do not, a

determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. § 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s impairments
prevent him or her from returning to past relevant work.

20 C.F.R. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant’s RFC, as well as the claimant’s age,
education, and past work experience in order to determine if he or she can do other
work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Plaintiff meets
the nondisability requirements for a period of disability and DIB and was insured
through the date of his decision. (Tr. at 17.) He further determined that Plaintiff has
not engaged in substantial gainful activity since the alleged onset of his disability. Id.
at 22. According to the ALJ, Plaintiff’s degenerative disc disease of the lumbar spine
with radiculopathy, herniated disc at L4-5, type II diabetes mellitus, and hypertension
are considered “severe” based on the requirements set forth in the regulations. Id. at
23. However, he found that these impairments neither meet nor equal any of the
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listed impairments in Appendix 1, Subpart P, Regulations No. 4. Id. The ALJ did not
find Plaintiff’s allegations to be fully credible, and he determined that Plaintiff retains
the RFC “to perform light work activities which allow for no bending, stooping,
climbing, no push or pull using his upper or lower extremities and no leg or foot
controls bilaterally. He should not drive and should be allowed to sit or stand at his
option.” Id.
According to the ALJ, Plaintiff is unable to perform any of his past relevant
work, and is “closely approaching advanced age,” as those terms are defined by the
regulations. Id. He determined that Plaintiff has “no transferable skills.” Id. Even
though Plaintiff cannot perform the full range of light work, the ALJ used the
testimony of a Vocational Expert (“VE”) in finding that there are a significant number
of jobs in the national economy that he is capable of performing, including general
clerk, receptionist, cashier and assembler. Id. at 22, 76-77. The ALJ concluded his
findings by stating that Plaintiff “was not under a ‘disability,’ as defined in the Social
Security Act, at any time through the date of this decision.” Id. at 24.
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
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Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). The Court approaches the factual findings of the Commissioner
with deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater,
84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts, weigh evidence,
or substitute its judgment for that of the Commissioner. Id. “The substantial
evidence standard permits administrative decision makers to act with considerable
latitude, and ‘the possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding from being supported
by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986)
(Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966)). Indeed, even if this Court finds that the evidence preponderates against the
Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).
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III.

Discussion
Plaintiff argues that the Commissioner's decision to deny disability benefits

should be reversed and remanded because the ALJ’s RFC findings are not based on
substantial evidence, (Doc. 7 at 6.), and there is new evidence that the ALJ did not
consider, Id. at 10. Specifically, he argues that the ALJ failed to consider his candidacy
for surgery, Id. at 7-8, gave improper weight to the opinion of Dr. Khail E. Awad, Id.
at 8-9, the evidence the ALJ relied upon contained mistakes or misleading statements,
Id. at 6-8, and additional treatment records from Dr. Awad require the case to be
remanded, Id. at 10.
A.

Plaintiff’s Subjective Complaints of Pain

Plaintiff alleges that the ALJ’s decision should be reversed and remanded
because he believes that the record evidence supports his allegations of pain.
Specifically, he contends that the ALJ failed to mention his candidacy for surgery, its
type, or the fact that Plaintiff was scheduled to have the surgery on March 14, 2008.
(Doc. 7 at 7-8.)
i.

Substantial Evidence to Support ALJ’s Determination of
Plaintiff’s Credibility

A claimant’s subjective testimony of pain and other symptoms will support a
finding of disability if it is supported by medical evidence that satisfies the pain
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standard and is not discredited by the ALJ. See Foote v. Chater, 67 F.3d 1553, 1561
(11th Cir. 1995). To satisfy the pain standard, a claimant must show “evidence of an
underlying medical condition, and either (1) objective medical evidence to confirm the
severity of the alleged pain arising from that condition, or (2) that the objectively
determined medical condition is of a severity that it can reasonably be expected to
give rise to the alleged pain.” Id. at 1560; see also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005); Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986).
Once the pain standard is satisfied, the ALJ must consider a claimant’s
subjective testimony of pain and other symptoms. Foote, 67 F.3d at 1560; see also
Minter v. Astrue, 722 F. Supp. 2d 1279, 1282 (N.D. Ala. 2010) (finding that “if a
claimant testifies to disabling pain and satisfies the three part pain standard, he must
be found disabled unless that testimony is properly discredited.”). If the ALJ
discredits the claimant’s subjective testimony of pain and other symptoms, he must
articulate explicit and adequate reasons for doing so. Wilson v. Barnhart, 284 F.3d
1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 96-7p, 1996 WL 374186 (1996)
(“[T]he adjudicator must carefully consider the individual’s statements about
symptoms with the rest of the relevant evidence in the case record in reaching a
conclusion about the credibility of the individual’s statements.”). “Although [the
Eleventh Circuit] does not require an explicit finding as to credibility, . . . the
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implication must be obvious to the reviewing court.” Dyer, 395 F.3d at 1210 (quoting
Foote, 67 F.3d at 1562). The ALJ is not required to cite “particular phrases or
formulations” in his credibility determination, but it cannot be a broad rejection that
is insufficient to enable this court to conclude that the ALJ considered the claimant’s
medical condition as a whole. Id.
In this case, the ALJ found that “the preponderance of the more credible
evidence establishes that, as a result of his signs, symptoms, and laboratory findings,
the claimant suffers from a medically determinable back impairment that can be
expected to produce no more than mild to, at most, moderate pain.” (Tr. at 21.)
Furthermore, the ALJ found that “the objective medical evidence of record fails to
establish significant underlying medical conditions capable of producing disabling pain
and other disabling limitations as the claimant alleges.” Id. In light of these findings,
Plaintiff’s subjective complaints of pain did not satisfy the Eleventh Circuit pain
standard. The ALJ also determined that Plaintiff’s complaints were not credible,
noting that “[w]hile some lumbar spasms and restricted range of motion of the lumbar
and cervical spines were observed, additional objective, clinical findings including no
atrophy, negative Romberg, normal gait, intact muscle strength and a February 2008
MRI were unremarkable,” and that “[i]n light of [this evidence], the claimant’s
assertions of disabling pain and limitations are not fully credible.” Id. at 20-21. This
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was not a broad rejection of Plaintiff’s credibility; rather, the ALJ properly considered
all the evidence, and articulated several reasons, supported by substantial evidence,
for discrediting his testimony. This court will not substitute its judgment for that of
the ALJ’s when, as here, it is supported by substantial evidence. Therefore, Plaintiff’s
subjective complaints of pain were properly discredited under the Eleventh Circuit
pain standard.
ii.

Plaintiff’s Candidacy for Surgery

Plaintiff contends that “[i]t would be difficult to rationalize that [his] candidacy
for two level laminectomy was not indicated by something more than moderate pain.”
(Doc. 7 at 7.) Contrary to Plaintiff’s contentions regarding subjective pain, Id. at 6-8,
the ALJ was not under a duty to specifically mention his candidacy for surgery, the
type of surgery, or the fact that he was supposed to have surgery on March 14, 2008,
as “there is no rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision, so long as the ALJ’s decision . . . is not a broad rejection
which is ‘not enough to enable [this Court] to conclude that [the ALJ] considered her
medical condition as a whole.’” Dyer, 395 F.3d at 1211 (quoting Foote, 67 F.3d at
1561). It is clear from the ALJ’s decision that he was aware of Plaintiff’s candidacy for
surgery. In fact, he specifically mentions that Plaintiff “stated that . . . although he had
been scheduled for back surgery in the past, he had not undergone surgery, nor had
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he rescheduled.” (Tr. at 17-18.) Even if it would be difficult to conclude that
Plaintiff’s candidacy for surgery was not indicative of severe pain, that conclusion is
not this Court’s to make. This Court will not decide facts, weigh evidence, or
substitute its judgment for that of the Commissioner’s. By examining the record, this
Court can conclude that the ALJ considered Plaintiff’s medical condition as a whole;
therefore, his failure to mention Plaintiff’s candidacy for surgery does not merit a
remand under the regulations.
B.

Substantial Evidence to Support ALJ’s Determination of Plaintiff’s
Ability to Sustain Competitive Work

Plaintiff also argues that the ALJ’s decision should be reversed and remanded
because the determination that he could sustain competitive work was not based on
substantial evidence. Specifically, he alleges that Dr. Awad’s opinion was not
accorded the proper weight and the other medical records relied upon contain various
mistakes and misleading statements made by the ALJ. Plaintiff contends that the ALJ
confused an MRI with an examination, (Doc. 7 at 6.), misconstrued Dr. Moyo’s
treatment records, Id. at 7, and omitted portions of Dr. Hakima’s physical
examination from May of 2008, Id. at 8.
i.

Weight of Dr. Awad’s Opinion

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Plaintiff argues that Dr. Awad’s assessments of his condition do not support an
ability for sustained competitive work pursuant to 20 C.F.R. § 404.1545(b), and that
the ALJ did not accord the proper weight to Dr. Awad’s opinon.
In making his determination regarding Plaintiff’s residual functional capacity,
the ALJ considered the 2008 treatment notes from Dr. Khail E. Awad at PEC
Chiropractic Associates. (Tr. at 19, 21.) Dr. Awad treated Plaintiff for four years prior
to the ALJ’s decision. Id. at 286. On June 13, 2008, Dr. Awad completed a “Physical
Capacities Evaluation” form wherein he opined that Plaintiff could lift or carry 20
pounds occasionally and 10 pounds frequently. Id. at 353. He further opined that
Plaintiff could occasionally push and pull, climb, engage in gross and fine
manipulation, bend, and reach. Id. He noted that Plaintiff could operate motor
vehicles, work around hazardous machinery, and work around dust, allergens, and
fumes. Id. He also opined that Plaintiff could stand and walk for only 4 hours out of
an 8 hour day, sit for only 4 hours out of an 8 hour day, and never stoop. Id. In a
contemporaneous “Clinical Assessment of Pain” form, Dr. Awad opined that
Plaintiff’s pain was present to such an extent as to be distracting to adequate
performance of daily activities or work, physical activity greatly increased this pain to
such a degree as to cause distraction from tasks or total abandonment of tasks, and

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Plaintiff has an underlying medical condition consistent with the pain he was
experiencing. Id. at 354-55.
Under the regulations, when assessing the medical evidence in a case, “the ALJ
[is] required to state with particularity the weight he gave the different medical
opinions and the reasons therefor.” Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.
1987). However, not all sources are considered “acceptable medical sources,” which
are “sources who can provide evidence to establish an impairment.” 20 C.F.R. §
404.1513(a). “Acceptable medical sources are (1) licensed physicians; (2) licensed or
certified psychologists; (3) licensed optometrists . . .; (4) licensed podiatrists . . .; and
(5) qualified speech-language pathologists.” 20 C.F.R. § 404.1513(a)(1)-(5). A
chiropractor is not considered an acceptable medical source that can be used to
establish whether the claimant has a medically determinable impairment. 20 C.F.R.
§ 404.1513(a) However, a chiropractor is considered a source from which evidence
may be used to show the severity of a claimant’s impairments and how they affect his
ability to work. 20 C.F.R. § 404.1513(d)(1).
A treating physician's testimony is entitled to “‘substantial or considerable
weight unless 'good cause' is shown to the contrary.’” Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997)). “A ‘treating source’ (i.e., a treating physician) is a
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claimant's ‘own physician, psychologist, or other acceptable medical source who
provides [the claimant], or has provided [the claimant], with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with [the
claimant].’” Nyberg v. Comm’r of Soc. Sec., 179 Fed. Appx. 589, 591 n.3 (11th Cir.
2006) (quoting 20 C.F.R. § 404.1502) (emphasis added).
In this case, because Dr. Awad was Plaintiff’s chiropractor, the regulations
consider his opinion as a source from which evidence may be used to show the
severity of a claimant’s impairments and how they affect his ability to work.
Therefore, some consideration must be given to his opinion. However, since Dr.
Awad was not Plaintiff’s physician, psychologist, or other acceptable medical source,
he is not considered a “treating physician” under the regulations, and his opinion is
not entitled to substantial or considerable weight; therefore, the ALJ does not need
to show “good cause” in order to assign Dr. Awad’s opinion little weight.
The ALJ’s decision clearly considered Dr. Awad’s opinion, but did not accord
it significant weight because, despite treating Plaintiff for several years, Dr. Awad did
not opine that he was suffering from debilitating pain until he filled out the June 2008
pain forms. Id. at 20-21. The ALJ was not under a duty to demonstrate good cause in
assigning little weight to Dr. Awad’s opinion; he only needs to show that he

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considered it. Therefore, the ALJ did not accord improper weight to Dr. Awad’s opinion.
ii.

February 2008 MRI

Plaintiff contends that the ALJ limited his analysis of the evidence to an
assertion that a February 2008 MRI was “unremarkable,” but that the ALJ was
confusing the MRI with a February 2008 examination which was described in the
record as unremarkable. (Tr. at 184.) Plaintiff further contends that because the
opinion for this examination was objectively superceded by his MRI and candidacy for
surgery, it should not have been relied on in determining that he could perform other
work. (Doc. 7 at 6.) Contrary to Plaintiff’s contention, however, the ALJ’s comment
was directed to a series of objective, clinical findings that the ALJ was using to
determine whether Plaintiff’s assertions of disabling pain and limitations were
credible. (Tr. at 20-21.) Furthermore, the ALJ notes that Plaintiff’s February 2008
physical examination was unremarkable earlier in his decision. In light of this, it is
unlikely that the ALJ was confusing the February 2008 MRI with the February 2008
examination. Therefore, the ALJ could rely on the MRI, as well as the other objective,
clinical findings, in determining that Plaintiff was not disabled.
iii.

Dr. Moyo’s Treatment Records

Plaintiff argues that the ALJ misconstrued Dr. Moyo’s treatment records in
determining that he could sustain competitive work. Specifically, Plaintiff contends
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that the ALJ’s comment that, “[i]nterestingly, Dr. Moyo did not report that the
claimant’s pain was severe,” Id. at 18, is misleading because the comment was
directed at Dr. Moyo’s records for January 16, 2008, with the implication that if
Plaintiff’s pain was more severe, Dr. Moyo would have prescribed something stronger
than Naproxen, (Doc. 7 at 7.); however, Dr. Moyo noted that Plaintiff was given
prescriptions in the emergency room. (Tr. at 7.)
Over the course of several months, Dr. Edwin M. Moyo treated Plaintiff for
hypertension, diabetes mellitus, and back pain arising from two bulging discs. (Tr.
196-284, 356-63.) On January 16, 2008, Dr. Moyo prescribed Naproxen, Tramodol,
and Robaxin after Plaintiff complained of severe back pain. Id. at 361. On March 27,
2008, Dr. Moyo reported Plaintiff’s diabetes to be unstable and noted that he obtained
a blood sugar rating of 529. Id. at 360. On October 16, 2008, he noted uncontrolled
hypertension, uncontrolled blood sugar, and low back pain. Id. at 357. On February 10,
2009, he noted Plaintiff’s blood sugar was uncontrolled and he adjusted Plaintiff’s
medication. Id. at 356.
There is no indication from the ALJ’s statements that he thought Dr. Moyo
would have prescribed something stronger than Naproxen had Plaintiff’s pain been
more severe. Furthermore, the statement that Dr. Moyo did not report that Plaintiff’s
pain was severe is true. Simply noting that a patient went to the emergency room for
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severe pain is not the same as actually reporting that a patient’s pain is severe.
Because the ALJ’s statements about Dr. Moyo’s opinion were true and not
misleading, he could rely on them in determining that Plaintiff was not disabled.
iv.

Dr. Hakima’s Consultative Examination

Plaintiff argues that the ALJ omitted portions of Dr. Hakima’s physical
examination from May of 2008. (Doc. 7 at 8.) Specifically, he alleges that the ALJ
omitted the word “very,” (Tr. at 18), from Dr. Hakima’s observation that it was
“very difficult for [Plaintiff] to get on and off the exam table,” Id. at 334, and he
omitted the words “in the seated and supine positions,” Id. at 19, from Dr. Hakima’s
reporting of a positive straight leg raise, Id. at 335.
In this case, the omissions made by the ALJ were not material to his decision.
First, despite omitting the adverb “very,” the ALJ still acknowledged the observation
that it was difficult for Plaintiff to get on and off the exam table. In fact, this
demonstrates that the ALJ considered Plaintiff’s medical condition as a whole.
Second, the phrase “in the seated and supine positions” is redundant because most
straight leg raise tests are performed in either the seated and supine positions.
Furthermore, the straight leg raise was positive, so the omission of the qualifier “in
the seated and supine positions” would benefit Plaintiff if it was actually material to

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the ALJ’s decision. Because the ALJ’s omissions were not material to his decision, he
could rely on them in determining that Plaintiff was not disabled.
v.

Other Substantial Evidence

Upon reaching the “fifth and final step of the evaluation process to determine
whether in light of ‘residual functional capacity,’ age, education, and work experience
the claimant can perform other work,” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th
Cir. 2002), “[t]he ALJ must articulate specific jobs that the claimant is able to
perform, and this finding must be supported by substantial evidence, not mere
intuition or conjecture.” Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989).
Furthermore, “only an ability to do full-time work will permit the ALJ to render a
decision of not disabled.” Kelly v. Apfel, 185 F.3d 1211, 1214-15 (11th Cir. 1999) (citing
Social Security Ruling 96-8p, which states that a claimant must have the “ability to
do sustained work-related physical and mental activities in a work setting on a regular
and continuing basis, which means “8 hours a day, for 5 days a week or an equivalent
work schedule.”).
In this case, the ALJ articulated specific jobs that Plaintiff is able to perform,
and his finding is supported by substantial evidence. The ALJ evaluated the medical
evidence of record and concluded that Plaintiff could perform light and sedentary
work with additional limitations (Tr. at 20-22, 23.) He then posed a hypothetical
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question to the Vocational Expert (“VE”) assuming an individual with Plaintiff’s
relevant vocational characteristics with the ability to perform light and sedentary work
with the following additional restrictions: no bending, stooping, or climbing; no
pushing or pulling in upper or lower extremities; no leg or foot control or bilaterally;
no driving; and he should be allowed to sit and/or stand at will. (Tr. at 76, 79-80.) In
response to the ALJ’s hypothetical, the VE testified that Plaintiff could perform light
and sedentary jobs which exist in Alabama. Id. at 76-80. As examples of light jobs, the
VE identified the jobs of general clerk, receptionist, and cashier, and she testified that
there were approximately 5,500 such jobs in Alabama. Id. at 76-77. As examples of
sedentary jobs, the VE identified the jobs of general clerk, receptionist, and
assemblers, and she testified that there were approximately 6,000 such jobs in
Alabama. Id. at 76-80. The ALJ included these findings in his decision. Id. at 22. Thus,
the ALJ articulated specific jobs that Plaintiff is able to perform, and the VE
testimony, along with the aforementioned medical reports, including the opinions of
Dr. Moyo and Dr. Hakima, is substantial evidence upon which the ALJ could rely in
making his determination that Plaintiff could perform other work.
C.

New Evidence

This case also involves additional evidence not before the ALJ, but introduced
by Plaintiff to the Appeals Council. The new evidence documents Plaintiff’s
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continued chiropractic treatment with Dr. Awad through February of 2009. (Tr. at
365-76.) The Appeals Council reviewed the new evidence, but determined that it did
not provide a basis for changing the ALJ’s decision. Id. at 1-5. In order to obtain a
remand for consideration of newly discovered evidence, the claimant must show “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).
Therefore, remand is appropriate where “(1) there is new, noncumulative evidence;
(2) the evidence is ‘material,’ that is, relevant and probative so there is a reasonable
possibility that it would change the administrative result; and (3) there is good cause
for the failure to submit the evidence at the administrative level.” Caulder v. Bowen,
791 F.2d 872, 877 (11th Cir. 1986).
In this case, the additional evidence is new and noncumulative, and Plaintiff
could not have submitted it at the administrative level because it did not exist at that
time. However, the new evidence is not material for two reasons. First, the new
evidence merely reflects treatment that is similar to Dr. Awad’s records that were
already considered by the ALJ. It is unlikely that the ALJ would change his result
based on these similar treatment records. Second, the additional evidence does not
controvert the ALJ’s rationale behind assigning little weight to Dr. Awad’s opinion.
According to the ALJ, “it [was] highly significant that [Dr. Awad] never opined that
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[Plaintiff] was suffering from disabling pain, until on a form in June of 2008.” (Tr. at
21.) It is unlikely that the ALJ would assign more weight to Dr. Awad’s opinion in
light of the fact that most of the additional treatment records occurred after Dr. Awad
completed the pain forms, and nowhere in the additional records does he opine that
Plaintiff suffers from disabling pain. Id. at 365-76. For these reasons, the new evidence
does not provide a basis for changing the ALJ’s decision.
IV.

Conclusion
Upon review of the administrative record, and considering all of Plaintiff’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 24th day of August 2012.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
171032

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