Horn v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/30/13. (CTS, )

FILED
2013 Sep-30 PM 01:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ROBERTA JANE HORN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 2:11-CV-3536-SLB
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MEMORANDUM OPINION
The plaintiff, Roberta Jane Horn, brings this action pursuant to the provisions of section
205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final
adverse decision of the Commissioner of the Social Security Administration (the Commissioner)
denying her application for disability insurance benefits. Plaintiff timely pursued and exhausted
her administrative remedies available before the Commissioner. Accordingly, this case is now
ripe for judicial review under 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g).
Based on the court’s review of the record and the briefs submitted by the parties, the court finds
that the decision of the Commissioner is due to be affirmed.
I. STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To that end this court “must
scrutinize the record as a whole to determine if the decision reached is reasonable and supported
by substantial evidence.” Bloodsworth, at 1239 (citations omitted). Substantial evidence is

“such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Bloodsworth, at 1239. This court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). Even if the court finds that the evidence preponderates against the
Commissioner’s decision, the court must affirm the Commissioner’s decision if it is supported by
substantial evidence. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003).
II. STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish entitlement for a period of
disability, a claimant must be disabled. The Act defines disability as the “inability 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 twelve months . . . .” 42 U.S.C. § 423(d)(1)(A); 42
U.S.C. § 416(i). For the purpose of establishing entitlement to disability benefits, “physical or
mental impairment” is defined as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether a claimant is disabled, the Social Security regulations outline a
five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether she has a severe impairment;

(3)

whether her impairment meets or equals one listed by the Secretary;

2

(4)

whether the claimant can perform her past work; and

(5)

whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); accord McDaniel v. Bowen, 800 F.2d 1026,
1030 (11th Cir. 1986). “Once the claimant has satisfied Steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment. If the claimant does not
have a listed impairment but cannot perform her past work, the burden shifts to the
[Commissioner] to show that the claimant can perform some other job.” Pope, at 477; accord
Foot v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the present case, the plaintiff is seeking Title II disibility insurance benefits, alleging
disibility beginning September 1, 1996. R. 11. Based on the plaintiff’s earnings records, she has
sufficient quarters of coverage to remain insured through December 31, 2001. R. 11. Therefore,
the plaintiff must establish that she became disabled on or before December 31, 2001, her date
last insured (“DLI”). See 42 U.S.C. § 423(d)(1)(A); Wilson v. Barnhart, 284 F.3d 1219, 1226
(11th Cir. 2002).
In the present case the ALJ found that during the relevant period plaintiff’s headaches,
anxiety disorder and depression were severe impairments. R. 13. The ALJ determined that none
of the plaintiff’s impairments, alone or in combination, met or equaled a listed impairment. R.
13. The ALJ found that prior to the plaintiff’s DLI, she had the residual functional capacity
(RFC) for work at all exertional levels, however, she could not be exposed to unprotected
hazards. R. 15. She needed simple instructions and tasks; casual contact with the public; and
tactful and non-threatening supervision. R. 15. The ALJ also found that workplace changes

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should be gradual and well-explained R. 15. The ALJ found that with this RFC, the plaintiff
could not perform her past relevant work. R. 20.
Once it is determined the plaintiff cannot return to her prior work, “the burden shifts to
the [Commissioner] to show other work the claimant can do.” Foote, at 1559. When a claimant
is not able to perform the full range of work at a particular exertional level, the Commissioner
may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59.
The presence of a non-exertional impairment (such as pain, fatigue or mental illness) also
prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the [Commissioner]
must seek expert vocational testimony.” Id. Based upon the plaintiff’s RFC and the testimony of
a vocational expert (VE), the ALJ found other work existed in significant numbers that the
plaintiff could perform. R. 20-21, 813-16. Because the ALJ found the plaintiff could perform
other work as of her DLI, she found the plaintiff not disabled. R. 21.
III. FACTUAL BACKGROUND
The plaintiff was 48 years old on her alleged onset date, and was 54 years old as of
December 31, 2001, her DLI. R. 67, 76. She has at least a high school level education, and her
past relevant work includes work as licensed practical nurse. R. 20, 81, 89. The plaintiff claims
she was not able to work as of her DLI due to a variety of conditions, including arthritis,
migraine headaches and depression. R. 80.
On July 24, 1996, Dr. Moore, the plaintiff’s primary care physician, noted the plaintiff
complained of headaches and anxiety, but that she was doing pretty well. R. 446. She was to
return for treatment on an as needed basis. R. 446. The next treatment note in the record is from
June 18, 1999, when the plaintiff saw Dr. Moore, reporting that she had hardly slept in the last

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eight days because she had been up with her mother-in-law. R. 445. She reported worsening
headaches, which were not being controlled with Darvocet.1 R. 445.
The plaintiff saw Dr. Moore on October 9, 2000, reporting she had been under a great
deal of stress lately while caring for her sister, who was terminally ill with cancer. R. 438. She
reported problems with palpitations and sinus symptoms. R. 438. Dr. Moore changed the
plaintiff’s anxiety medication from Elavil2 to Paxil.3 R. 438. When the plaintiff was seen by Dr.
Moore on December 19, 2000, she complained of headache, without photophobia. R. 437. She
reported episodes of headaches, increased blood pressure, bilateral hand numbness, nausea,
vomiting, sweating, tinnitus, and shortness of breath. R. 437. She reported stress because her
terminally ill sister was staying with her. R. 437.
On August 29, 2001, the plaintiff complained of sinus congestion and a sore throat. R.
550. She also reported continued migraine headaches, which she stated responded only to a
combination of Darvocet and Tranxene.4 R. 550. Dr. Miller noted the plaintiff was not on any
effective medication for prophylaxis of her headaches. R. 550. He discussed the risks of
rebound headaches and addiction with Tranxene and Darvocet. R. 550. Dr. Miller agreed to

1

Darvocet is a combination of propoxyphene napsylate and acetaminophen.
“Propoxyphene is a centrally acting narcotic analgesic agent.” Physicians’ Desk Reference 56th
Ed., p. 1907 (2003).
2

Elavil (amitriptyline) is a tricyclic antidepressant. http://www.drugs.com/elavil.html

3

“Paxil (paroxetine) is an antidepressant in a group of drugs called selective serotonin
reuptake inhibitors (SSRIs).” http://www.drugs.com/paxil.html
4

Tranxene (the brand name for clorazepate) is a benzodiazepine used for treating anxiety
disorders, certain types of seizures, and symptoms of alcohol withdrawal.
http://www.drugs.com/cdi/clorazepate.html

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continue Darvocet for short term use, but recommended she see a neurologist for long term
treatment of her headaches. R. 549-50.
When the plaintiff was seen by Dr. Moore on September 25, 2001, she was “doing
reasonably well” but continued to have problems with headaches. R. 435. Dr. Moore noted the
plaintiff was scheduled to see a neurologist, and was being followed by Dr. Miller for her
headaches. R. 435.
The plaintiff saw Dr. Miller on October 10, 2001, still complaining of headaches. R. 549.
She had not yet seen the neurologist. R. 549. When the plaintiff returned to Dr. Miller on
October 25, 2001, she reported having seen Dr. Fagan, who started her on Effexor5 for her
headaches. R. 548. On November 21, 2001, the plaintiff reported to Dr. Miller that her
headaches were much better, with only a couple of headaches in the previous few weeks. R. 547.
The plaintiff saw Dr. Moore on November 13, 2001, and reported having a lot of trouble
with anxiety. R. 434. She reported she was completely off of Tranxene and Darvocet. R. 434.
She reported she was taking Effexor for her headaches. R. 434. She reported that it was helping
her headaches, but not her anxiety. R. 434. Dr. Moore referred the plaintiff to Grayson &
Associates for treatment of her anxiety. R. 434.
On December 10, 2001, the plaintiff began psychiatric treatment with Grayson &
Associates. R. 261-62. The treatment note shows the plaintiff complained of stress, anxiety, and
headaches. R. 261. She reported she had been taking care of her terminally ill sister off and on
5

“Effexor (venlafaxine) is an antidepressant in a group of drugs called selective
serotonin and norepinephrine reuptake inhibitors (SSNRIs). Venlafaxine affects chemicals in the
brain that may become unbalanced and cause depression.” http://www.drugs.com/effexor.html

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since September 2000, and that she cared for her grandsons two days a week. R. 261. She was
diagnosed with Major Depression and Anxiety, and assigned a Global Assessment of
Functioning (GAF) score of 70.6 R. 262. Medication was prescribed and she was to return in
four weeks. R. 262.
Alfred Jonas, M.D., a medical expert and board certified psychiatrist, reviewed the
plaintiff’s medical evidence and testified at the plaintiff’s ALJ hearing. R. 792, 797-811. Dr.
Jonas testified the plaintiff’s conditions that manifested after her DLI, such as hydrocephalus,
likely would not have caused complications prior to December 31, 2001. R. 798. As to the
plaintiff’s alleged back pain, Dr. Jonas testified the medical records did not show she had a back
impairment that would have significantly limited her ability to work prior to December 30, 2001.
R. 798-99.
Dr. Jonas also evaluated the plaintiff’s mental impairments. He testified that there were
three possible psychological impairments based on the record. R. 799. These were depression
(Listing 12.04-1), personality disorder (Listing 12.08), and substance abuse (Listing 12.09). R.
799. Dr. Jonas testified that he did not see anything in the medical records to suggest the
plaintiff had significant limitations from anxiety. R. 805.

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The Global Assessment of Functioning (GAF) Scale is used to report an
individual’s overall level of functioning. Diagnostic and Statistical Manual of Mental
Disorders 30 (4th Edition) (“DSM-IV”). A GAF of 61-70 is defined as some mild
symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, with some meaningful interpersonal
relationships. DSM-IV-TR, 34.
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Dr. Jonas testified the plaintiff may have had depression during the relevant period, given
that she was hospitalized for depression in 1986 and 1987. R. 800. However, he testified that
hospitalization was not uncommon at that time for “uncomplicated treatment of depression.” R.
800. He testified that in the plaintiff’s case, the discharge summary did not indicate “anything
very complicated was going on.” R. 800. Dr. Jonas concluded that although it was possible the
plaintiff suffered from depression after the hospitalization, nothing in the record showed the
plaintiff had an important or sustained problem with depression. R. 800. Dr. Jonas testified that
based on the evidence of record, the plaintiff’s depression was not a significant problem during
the relevant period prior her DLI: “I don’t see depression in this file . . . as having been a
significant, dramatic or particularly impairing problem for Mrs. Horn.” R. 807.
Dr. Jonas testified he saw nothing in the record to suggest the plaintiff’s mental
impairments would have prevented her from carrying out simple tasks prior to her DLI. R. 803.
Dr. Jonas also testified the evidence did not suggest the plaintiff had problems with social
functioning, concentration, persistence or pace prior to her DLI. R. 803-04. Dr. Jonas testified
that the medical records did not document the presence of the Listings paragraph B criteria. R.
804.
A State agency physician assessed the plaintiff’s physical capabilities in August 2004,
and opined the plaintiff had no exertional limitations as of her DLI. R. 458. The State agency
psychologist, Dr. Gordon Rankart, Psy.D., evaluated the plaintiff’s mental abilities from
September 1996 to December 2001, and opined she could understand, remember, and carry out
simple tasks. R. 482. Dr. Rankart also opined the plaintiff would need causal contact with the

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public, tactful and nonthreatening supervision, and would need changes in the workplace to be
gradually introduced and well-explained. R. 482.
IV. DISCUSSION
To be eligible for disability insurance benefits the plaintiff must show she became
disabled prior to the expiration of her disability insured status. See 42 U.S.C. § 423(d)(1)(A);
Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). Based on the plaintiff’s earnings
records, she has sufficient quarters of coverage to remain insured through December 31, 2001.
R. 11. Therefore, the plaintiff must establish that she became disabled on or before December 31,
2001, her date last insured (“DLI”). In her brief the plaintiff discusses numerous treatment
records after her DLI. These treatment records are not relevant to the plaintiff’s condition prior
to her DLI. The plaintiff makes several broad arguments, which will be discussed below.
A.
The plaintiff argues the ALJ erred in finding she had the RFC to perform work at all
exertional levels with certain additional restrictions. She argues the “totality of the evidence”
places the plaintiff in the sedentary category. Pl.’s Br. 10. This argument rests primarily upon
the plaintiff’s testimony about her symptoms prior to her DLI. In this circuit, “a three part ‘pain
standard’ [is applied] when a claimant seeks to establish disability through his or her own
testimony of pain or other subjective symptoms.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995)
The pain standard requires (1) evidence of an underlying medical condition and
either (2) objective medical evidence that confirms the severity of the alleged pain
arising from that condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably expected to give rise to the
alleged pain.

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Id. (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If an ALJ discredits a
claimant’s subjective complaints, he must give “explicit and adequate reasons” for his decision.
See id. at 1561-62. “A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Id. at 1562. The ALJ’s credibility
determination need not cite “particular phrases or formulations” as long as it enables the court to
conclude that the ALJ considered the plaintiff’s medical condition as a whole. See Dyer v.
Barnhart, 395 F.3d 1206, 1210-11 (11th Cir. 2005) (citing Foote, 67 F.3d at 1561).
The ALJ found the plaintiff’s medically determinable impairments could reasonably be
expected to cause her alleged symptoms. R. 18. Therefore, the plaintiff met the requirements of
the Eleventh Circuit pain standard. However, the ALJ found the plaintiff’s allegations of an
inability to perform any significant work activities during the relevant period were not fully
credible. R. 16. The ALJ observed that during the relevant period, the plaintiff “cared for her
terminally ill sister which the medical evidence shows was quite stressful and demanding both
physically and mentally.” R. 16. She also considered the plaintiff’s daily activities, which
included “talking on the phone, occasionally shopping, [and] doing enough cleaning/cooking to
get by.” R. 16. The ALJ found the almost three year gap in treatment (July 1996 to June 1999)
was inconsistent with her testimony that she was confined to her home because of her
impairments. R. 16. She observed the plaintiff’s level of treatment before and after that gap
made it unlikely that she suffered the severe symptoms she alleged during that time. R. 16. The
ALJ also noted that when the plaintiff resumed treatment, “there is no mention of disabling
symptoms during that time.” R. 17. For these reasons, the ALJ found the plaintiff’s subjective
complaints were inconsistent with the objective medical evidence, and not fully credible. R. 17.

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Therefore, the ALJ articulated explicit reasons for not crediting the plaintiff’s allegations of
disabling symptoms, and the court finds those reasons are supported by substantial evidence.
The ALJ also considered the medical evidence and determined the plaintiff’s impairments
during the relevant period would not cause limitations more restrictive than provided for in her
RFC. In her consideration of the evidence, the ALJ relied upon the testimony of the medical
expert, Dr. Jonas. The ALJ gave great weight to the testimony of Dr. Jonas, because it was
consistent with the overall medical evidence. R. 17. In determining how much weight to give to
each medical opinion, the ALJ must consider several factors including: (1) whether the doctor
has examined the plaintiff; (2) whether the doctor has a treating relationship with the plaintiff;
(3) the extent to which the doctor presents medical evidence and explanation supporting his
opinion; (4) whether the doctor's opinion is consistent with the record as a whole; and (5)
whether the doctor is a specialist. C.F.R. §§ 404.1527(c), 416.927(c). Dr. Jonas is a specialists
in the field of psychiatry. R. 792. His opinions are also consistent with the record as a whole.
Therefore, the ALJ correctly applied these factors in giving great weight to Dr. Jonas’ testimony.
The ALJ found the plaintiff’s allegations of chronic and severe headaches prior to her
DLI were not supported by the medical evidence. She noted Dr. Moore treated the plaintiff’s
headache pain with Darvocet, but there was no evidence she had been on a prophylaxis regimen.
R. 18. The ALJ observed that after Dr. Miller prescribed Effexor, the plaintiff’s headaches
improved. R. 18-19. The ALJ noted Dr. Jonas testified the plaintiff’s hydrocephalus would not
have been likely cause complications in 2001. R. 798. She concluded that although there was
some evidence of sinus and migraine headaches prior to the plaintiff’s DLI, the preponderance of

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the evidence did not support disabling symptoms from those headaches. R. 19. This finding is
reasonable and supported by substantial evidence.
The ALJ found the evidence did not support the plaintiff’s allegations of disabling back
pain prior to her DLI. R. 19. She noted that treatment notes indicating back pain began in
October 2002, well after the plaintiff’s DLI. R. 19. The ALJ also found the absence of
emergency room visits or other outpatient treatment for the plaintiff’s back pain during the
relevant period was inconsistent with her allegations of disabling back pain. R. 19. These
findings are supported by substantial evidence.
The ALJ concluded the plaintiff’s mental impairments did not cause disabling symptoms
prior to the plaintiff’s DLI. The ALJ based this finding on the lack of treatment for those
conditions and the testimony of the medical expert, Dr. Jonas. The ALJ noted Dr. Jonas found
“no medical evidence to support significant problems with depression before December 2001.”
R. 17. The ALJ also observed Dr. Jonas testified the plaintiff would have had no problems with
simple tasks in spite of her depression and anxiety prior to her DLI. R. 17. The ALJ found that
throughout the relevant time period, there was no substantial evidence to support non-exertional
impairments that would have precluded work activity as described in her RFC finding. 17-18.
She noted the gap in treatment between July 1996 and June 1999. R. 19. She also noted the
plaintiff’s treating psychiatrist had found only mild symptoms due to the plaintiff’s anxiety and
depression.7 R. 18. The ALJ observed that even thought the plaintiff’s “symptoms were
exacerbated by stress at home . . . she continued to function without significant limitations.” R.
7

This is a reference to the GAF score of 70 assessed on December 10, 2001, when she
was seen at Grayson & Associates. R. 261-62. That is the only treatment note during the
relevant period from a psychiatrist or other mental health specialist.

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18. Dr. Jonas’ testimony and the medical evidence relied upon by the ALJ provide substantial
evidence to support the ALJ’s RFC finding with respect to non-exertional limitations caused by
the plaintiff’s mental impairments.
The ALJ did not err in failing to include limitations in the plaintiff’s RFC based on her
alleged symptoms. The ALJ’s RFC finding is supported by the medical evidence of record, and
also by the testimony of Dr. Jonas, which she properly gave great weight. The plaintiff’s
argument on this issue is without merit.
B.
The plaintiff also argues that she meets Listings 12.04 Affective Disorders, 12.06 Anxiety
Related Disorder, and 12.09 Substance Addiction Disorders.8 Pl.’s Br. 12. Each of the Listings
cited by the plaintiff require her to document the “impairment-related functional limitations that
are incompatible with the ability to do any gainful activity.” Listing 12.00. This requires the
plaintiff to meet either the paragraph B or paragraph C criteria of the relevant listing.
The ALJ considered whether the plaintiff’s mental impairments met or equaled the
criteria of Listing 12.04.9 R. 14. She determined the plaintiff did not meet the paragraph B
criteria, which requires at least two of the following: marked restriction of activities of daily
living; marked difficulties in maintaining social functioning; marked difficulties in maintaining

8

The Listing for Substance Addiction Disorders provides that it will be met if substance
addiction causes impairments satisfying the requirements of one of nine specified Listings. The
Listings relevant to the present case are Listing 12.04 and Listing 12.06. If the plaintiff’s
functional limitations do not meet those listings, she would not meet Listing 12.09.
9

Although the ALJ cites Listing 12.06, her discussion of the paragraph C criteria shows
she was actually considering Listing 12.04. The paragraph B criteria are the same for both
Listings. The paragraph C criteria are different.

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social functioning; or repeated episodes of decompensation each of extended duration. Listing
12.04B, Listing 12.06B. The ALJ found the plaintiff had only moderate difficulties in the first
three criteria. R. 14. She found the plaintiff had no episodes of decompensation during the
relevant time period. R. 14. These findings are supported by the medical records, which do not
show more than moderate restrictions in these areas during the relevant period of time. It is also
supported by the testimony of Dr. Jonas, who testified the medical records did not document the
presence of the Listings’ paragraph B criteria. R. 804. Therefore, substantial evidence supports
the ALJ’s determination that the paragraph B criteria were not met.
The ALJ also considered the paragraph C criteria under Listing 12.04, which requires a
“[m]edically documented history of a chronic affective disorder of at least 2 years’ duration that
has caused more than a minimal limitation of ability to do basic work activities.” Listing
12.04C. The ALJ found there “ is no evidence of a chronic affective disorder of at least two
years duration that has caused more than a minimal limitation of ability to do basic work
activities.” R. 14. Dr. Jonas’ testimony that he did not see depression “as having been a
significant, dramatic or particularly impairing problem” for the plaintiff during the relevant time
period supports the ALJ’s finding. R. 807. Therefore, the ALJ’s finding that the plaintiff did not
meet Listing 12.04 is supported by substantial evidence.
The paragraph B criteria for Listing 12.06 is identical to that of Listing 12.04. The
paragraph C criteria for Listing 12.06 requires the plaintiff’s anxiety disorder to result “in
complete inability to function independently outside the area of [her] home.” Listing 12.06C.
There is no evidence in the record to support such a restriction during the relevant period of time.
As discussed above, the ALJ did not err in refusing to credit the plaintiff’s testimony that she was

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confined to her home because of her impairments. Therefore, the ALJ properly found the
plaintiff did not meet Listing 12.06.
Because the plaintiff did not show she met the paragraph B or C criteria for either Listing
12.04 or Listing 12.06, the ALJ did not err in finding those Listings were not met. For the
plaintiff to meet Listing 12.09 for substance addiction, she would have had to meet one of those
two Listings. Therefore, plaintiff’s argument is without merit.
C.
The plaintiff submitted an evidentiary supplement to her brief, which contained treatment
records from Hillcrest Hospital dated February 1987 and a psychological examination by Dr.
Holt from March 1987. (Doc. 9.) These records are not part of the administrative record and
cannot be considered by this court in determining whether substantial evidence supports the
ALJ’s decision. See Ingram v. Comm’r of Soc. Sec. Admin, 496 F.3d 1253, 1267-68 (11th Cir.
2007) (stating “a reviewing court is limited to the certified administrative record in examining
the evidence”) (quoting Calder v. Bowen, 791 F.2d 872, 876 (11th. 1986)). Although the plaintiff
has not asked for a remand under sentence six of 42 U.S.C. § 405(g), the court finds such a
remand is not warranted.
In this circuit a three prong test is applied to determine whether a remand for
consideration of new evidence is proper pursuant to sentence six of 42 U.S.C. § 405(g). The
claimant must establish:
(1)

That there is new, noncumulative evidence;

(2)

That the evidence is material; and

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(3)

That there is good cause for failure to submit the evidence at the
administrative level.

Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). To be material the proffered evidence
must be “relevant and probative so that there is a reasonable possibility that it would change the
administrative result.” Id. The evidence submitted does not satisfy the first or second
requirement for remand under sentence six. The evidence is cumulative because it is similar to
other records from Lloyd Nolan Hospital from December 1986 and January 1987. R. 484-85.
The evidence is also not material because it would be unlikely to change the administrative
result. The evidence was well before the plaintiff’s alleged onset date. The ALJ considered
other similar evidence from the 1980's and found it not relevant. Therefore, the evidence does
not satisfy the requirements for remand under sentence six of 42 U.S.C. § 405(g).
V. CONCLUSION
The court concludes the ALJ’s determination that the plaintiff is not disabled is supported
by substantial evidence, and that the ALJ applied the proper legal standards in arriving at this
decision. Accordingly, the Commissioner’s final decision is due to be affirmed. An appropriate
order will be entered contemporaneously herewith.

DONE, this 30th day of September, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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