Culpepper v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/6/2014. (KAM, )

FILED
2014 Aug-06 PM 02:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JESSE D. CULPEPPER,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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2:13-CV-1015-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Jesse D. Culpepper (“Plaintiff”), appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying his
application for a period of disability and Disability Insurance Benefits (“DIB”). Mr.
Culpepper 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).
Mr. Culpepper was sixty-one years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has two masters degrees. (Tr. at 27.) His past
work experiences include employment as a middle school teacher and a minister. (Id.
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at 27.) Mr. Culpepper claims that he became disabled on October 31, 2008, due to
status/post (S/P) open reduction internal fixation (ORIF) of right lateral malleolus,
diabetes mellitus, and asthma. (Id. at 15.)
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),

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416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration. 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 Mr. Culpepper
met the non-disability requirements for a period of disability and DIB and met the
insured status requirements from October 31, 2008, through December 31, 2010. (Tr.
at 15.) He further determined that Mr. Culpepper has not engaged in substantial
gainful activity during his disability period. (Id.) According to the ALJ, Plaintiff’s S/P

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ORIF of right lateral malleolus, diabetes mellitus, and asthma are considered “severe”
based on the requirements set forth in the regulations. (Id.) However, he found that
these impairments neither met nor medically equaled any of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ did not find Mr.
Culpepper’s allegations to be totally credible, and he determined that Mr. Culpepper
has the RFC to perform the full range of light work as defined in 20 CFR §
404.1567(b). (Tr. at 16.)
According to the ALJ, Mr. Culpepper is able to perform his past relevant work
as a secondary schoolteacher which is defined as “light and skilled.” (Tr. at 17.) The
ALJ thus concluded his findings by stating that Plaintiff “was not under a ‘disability,’
as defined in the Social Security Act, at any time from October 31, 2008, the alleged
onset date, through December 31, 2010, the date last insured pursuant to 20 CFR §
404.1565.” (Id.)
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
Commissioner, and (2) whether the correct legal standards were applied. See

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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
Mr. Culpepper does not contest that the ALJ’s decision was sound based upon

the evidence that was before him. Rather, Plaintiff argues that evidence submitted
after the ALJ issued his decision warrants remand because it shows that Plaintiff was
indeed disabled from October 31, 2008, through December 31, 2010.
In support of his claim, Plaintiff points to records submitted to the Appeals
Council and records submitted for the first time to this Court. Thus, there are two
standards by which the Court is to evaluate Plaintiff’s request. “Section 405(g) [of
the Social Security Act] permits a district court to remand an application for benefits
to the Commissioner . . . by two methods, which are commonly denominated
‘sentence four remands’ and ‘sentence six remands.’” Ingram v. Comm’r of Soc. Sec.,
496 F.3d 1253, 1261 (11th Cir. 2007). Sentence four remand is appropriate when
“evidence properly presented to the Appeals Council has been considered by the
Commissioner and is part of the administrative record.” Id. at 1269. Remand to the
Commissioner is proper under sentence six when new and material evidence that was
not incorporated into the administrative record for good cause comes to the attention
of the district court. Id. at 1267; see also Milano v. Bowen, 809 F.2d 763, 766-67 (11th
Cir. 1987) (emphasis in original) (ordering sentence six remand based on evidence first

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properly submitted to the district court).
A.

Sentence Four Remand

After the ALJ issued an unfavorable decision, Plaintiff submitted the following
documents to the Appeals Council in asking for review: treatment records from UAB
Health Centers dated February 1, 2007; treatment records from Dr. William Fulcher
dated March 18, 1993 through June 22, 1993; a letter from Dr. Marshall Boone, Jr.
dated January 29, 2013; treatment records from UAB Outpatient Clinic dated August
9, 2012 through January 4, 2013; treatment records from UAB Health System dated
August 3, 2012 through December 21, 2012; and treatment records from Dr. Carter
Slappey dated July 21, 2011 through August 3, 2011.
Generally, a claimant may present new evidence at each stage of the
administrative process. Ingram, 496 F.3d at 1261 (citing 20 C.F.R. § 404.900(b)).
The Appeals Council has discretion not to review the ALJ’s denial of benefits. See
C.F.R. § 404.970(b), 416.1470(b). However, the Appeals Council “must consider
new, material, and chronologically relevant evidence and must review the case if the
administrative law judge’s action, findings, or conclusion is contrary to the weight of
the evidence currently of record.” Ingram, 496 F.3d at 1261. See also 20 C.F.R. §
404.970 (“The Appeals Council shall evaluate the entire record including the new and

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material evidence submitted if it relates to the period on or before the date of the
administrative law judge hearing decision.”). If the Appeals Council refuses to
consider new evidence submitted by the plaintiff and denies review, its decision is
subject to judicial review because it is an error of law. Barclay v. Comm’r of Soc. Sec.,
274 F. App’x 738, 743 (11th Cir. 2008) (citing Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). In this case, the Appeals Council stated
that it considered both the reasons Plaintiff disagreed with the ALJ’s decision and the
additional evidence submitted, but found that none of this information provided a
basis for changing the ALJ’s decision. (Tr. at 1-2.) Therefore, the Appeals Council
did not err by failing to consider the new evidence presented by Plaintiff.
The documents submitted to the Appeals Council are considered under
sentence four remand because they were incorporated into the administrative record
on appeal. 42 U.S.C. § 405(g) provides the court “power to enter upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause
for rehearing.” 42 U.S.C. § 405(g). In order to remand pursuant to sentence four, the
court “must either find that the decision is not supported by substantial evidence, or
that the Commissioner (or the ALJ) incorrectly applied the law relevant to the

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disability claim.” Moore v. Barnhart, 405 F.3d 1208, 1210 n.2 (11th Cir. 2005)(quoting
Jackson v. Chater, 99 F.3d 1086, 1091-92 (11th Cir. 1996)). When reconsidering the
Appeals Council’s denial of review, the Court must “look at the pertinent evidence
to determine if the evidence is new and material, the kind of evidence [the Appeals
Council] must consider in making its decision whether to review the ALJ’s decision.”
Falge v. Apfel, 150 F.3d 1320, 1324 (11th Cir. 1998). The new evidence must relate
back to the time period on or before the date of the ALJ’s decision and new evidence
is material if there is a reasonable possibility that the new evidence would change the
administrative result. 20 C.F.R. § 404.970(b)); see Falge, 150 F.3d at 1323.
For evidence to be relevant, it must relate to the time period before the ALJ,
which in this case would be from October 31, 2008, through December 31, 2010.
Falge, 150 F.3d at 1320 (quoting 20 C.F.R. 404.970(b)). The records submitted from
1993 are not chronologically relevant because they pertain to Plaintiff’s condition
fifteen years before Plaintiff even alleges he became disabled. The evidence submitted
relating to Plaintiff’s condition in 2011 through 2013 also does not provide a basis for
changing the ALJ’s decision because these records relate to a period of time after
Plaintiff was no longer insured for DIB. Even if this evidence was somehow relevant
to show how Plaintiff’s condition progressed, it is contradicted by Plaintiff’s own

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account of his condition shortly after the relevant period suggesting that even for some
time after the date he was last insured for DIB he was capable of performing light
work. (Tr. at 17.) Plaintiff reported that he exercised daily, prepared relatively
extensive meals for himself, swept and cleaned his home, washed dishes, washed
clothes, went outside his home daily, shopped, attended church regularly, read, fished,
and swam (Tr. at 124-28). Plaintiff also stated he could lift 40 pounds and walk one
block (Tr. at 129). Additionally, at the administrative hearing, Plaintiff testified he
volunteered as a chaplain, visiting hospital patients and writing letters for them (Tr.
at 28). These reported daily activities suggest Plaintiff retained the ability to perform
light work during the relevant period. Thus, any medical evidence Plaintiff produced
that suggested he could not perform light work during the relevant period would
conflict with his own statements. Accordingly, such evidence would not create a
reasonable possibility of changing the administrative result. See Leiter v. Comm’r of
Soc. Sec., 377 F. App’x 944, 949 (11th Cir. 2010) (stating an ALJ is not required to give
medical evidence considerable weight if it conflicts with the “the claimant’s own
testimony regarding her daily activities”). For these reasons, sentence four remand
is inappropriate.
B.

Sentence Six Remand

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As noted, Plaintiff also submitted records to this Court that he never presented
during his administrative proceedings. These records can also be categorized by their
time periods. The first category consists of records relating to the time period prior
to the alleged onset date. These include records from: Dr. Rustagi, family physician
(1993); Dr. Kirkland, urologist (1993 to 1994); UAB Taylor & Fulcher, attending
physicians at UAB hospital (1993 to 1994); Dr. Lyman, attending physician at UAB
(2000 to 2005); Target prescriptions (2001); Dr. Fennell, examining physician at
Baptist Health Center (2002 to 2007); Dr. Goldstein, orthopedic specialist (2004);
Dr. Ferguson, who conducted a sleep study on Plaintiff at UAB Hospital (2007); and
portions of Dr. Slappey’s, orthopedic surgeon’s, reports (2005 to 2009) and Dr.
Boone’s, Plaintiff’s treating physician’s, reports (2007 to 2009). The second category
consists of records dated during the disability period. These include records from: Dr.
McClintock, optometrist who examined Plaintiff’s vision (2009-2010); as well as a
portion of Dr. Slappey’s records (2008). The final category consists of the records
relating to the time period after which Plaintiff was no longer insured. These include:
RX prescriptions (2013 printout); Dr. Ponce’s, orthopedic surgeon’s, records (2012);
Dr. Stephenson’s, orthopedic surgeon’s, records (2012); and a portion of Dr. Boone’s
records (2011 to 2013).

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Remand under sentence six of § 405(g) is proper only when new and material
evidence that was not incorporated into the administrative record comes to the
attention of the district court. Ingram, 496 F.3d at 1267. “[N]ot every discovery of
new evidence, even if relevant and probative, will justify a remand to the Secretary,
for some evidence is of limited value and insufficient to justify the administrative costs
and delay of a new hearing.” Caulder v. Bowen, 791 F.2d 872, 876 (11th Cir. 1986)
(citation omitted). Remand for consideration of new evidence is appropriate under
sentence six if this Court finds the claimant has proven that “(1) there is new, noncumulative evidence, (2) the evidence is ‘material’, that is, relevant and probative so
that there is a reasonable probability that it would change the administrative result,
and (3) that there is good cause for the failure to submit the evidence at the
administrative level.” Keeton, 21 F.3d at 1067-68 (citing Cannon v. Bowen, 858 F.2d
1541, 1546 (11th Cir. 1988) and Caulder, 791 F.2d at 877). The determination
regarding remand based on new evidence is a de novo review. Vega v. Comm’r of Soc.
Sec., 265 F.3d 1214, 1218 (11th Cir. 2001). While the court cannot examine the new
evidence, it should remand a case to the Commissioner to consider such evidence if
the plaintiff makes a sufficient statutory showing. Caulder, 791 F.2d at 876.
As an initial matter, to the extent the evidence Plaintiff submitted to this Court

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relates to the period considered by the ALJ or to the period prior to Plaintiff’s alleged
onset date, Plaintiff could have submitted it at the administrative level. Plaintiff
argues that there is good cause for failure to submit records dated prior to the ALJ’s
decision because of his attorney’s failure to submit this evidence. However, the
Supreme Court has imputed an attorney’s failure to his client. See Link v. Wabash R.
Co., 370 U.S. 626 (1962) (“Petitioner voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the consequences of the acts or
omissions of this freely selected agent. Any other notion would be wholly inconsistent
with our system of representative litigation, in which each party is deemed bound by
the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of
which can be charged upon the attorney.’”) (citation omitted); see also Cadet v. State
Dep’t of Corr., 742 F.3d 473, 482 (11th Cir. 2014) (while “fundamental principles of
agency law [state that] the agency relationship between an attorney and his client can
be severed . . . where counsel acts adversely to his client’s interests or commits a
serious breach of loyalty to his client,” “an agent is not deemed to have acted
adversely to his principal’s interests simply because he made an unwise or negligent
or grossly negligent mistake that harmed those interests. Instead, an agent is deemed
to have acted adversely to his principal’s interest only when he acts for the purpose

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of advancing his own interests or those of another person.”). Therefore, Plaintiff’s
argument that there is good cause because of his attorney’s failure to submit
documents in support of his disability is irrelevant as the law is clear that his
attorney’s mistakes are attributed to him under the fundamental principles of agency
law. Thus, Plaintiff lacks good cause for failing to submit the evidence dated before
the ALJ’s decision during the administrative proceedings.
Assuming for the sake of argument that Plaintiff had demonstrated good cause
for his failure to submit this evidence, the evidence is not material such that it would
change the administrative result. There are only two sets of records that Plaintiff
introduced before this Court that relate to the disability period. The first set of
records are Plaintiff’s vision records from Dr. McClintock from October 19, 2009.
(Doc.16, p. 75-88.) The other record is from Dr. Slappey, one of Plaintiff’s orthopedic
surgeons, from December 22, 2008. (Doc. 16, p. 116.) The vision records represent
tests conducted on Plaintiff, but have no analysis or explanation of the results.
Further, the records state that glaucoma is only “suspect.” (Doc. 16, p. 77.) The
December 22, 2008, medical record from Dr. Slappey is also devoid of information
that might establish disability. In fact, Dr. Slappey discusses how Plaintiff has “good
range of motion in his right ankle and left knee.” (Doc. 16, p. 116.) Dr. Slappey goes

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on to say that “treatment is symptomatic” and recommends “activity as tolerated.”
(Id.) There are no pain medications prescribed or evidence in the record to indicate
that Plaintiff was ever prescribed or took pain medication during this time. Since the
evidence shows that Plaintiff still had good range of motion and there are no work or
activity restrictions further than “activity as tolerated,” the evidence does not indicate
that Plaintiff would not be able to perform “light and skilled” work. Therefore, the
evidence is immaterial and unlikely to change the administrator’s result.
Plaintiff has also not established good cause for his failure to submit to the
Appeals Council the evidence that relates to the time period after the disability period
but between the ALJ’s decision, on October 10, 2012, and the Appeals Council’s
decision, on March 28, 2013. In Enix v. Comm’r of Soc. Sec., 461 F. App’x 861 (11th
Cir. 2012), the court held that treatment records presented by the plaintiff did not
provide the plaintiff with good cause for failure to present the evidence to the
Commissioner. Id. at 863. Even though Plaintiff argued that the records did not exist
at the time of the ALJ’s decision, the court found that this argument fell short of
explaining why Plaintiff did not submit the documents to the Appeals Council while
his administrative appeal was pending. Id. at 864. Similarly, Plaintiff here could have
submitted the documents to the Appeals Council while his appeal was pending.

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Plaintiff, while choosing to submit some new documents to the Appeals Council,
chose not to include others. As a result, good cause is lacking for Plaintiff’s failure to
submit evidence to the Appeals Council that relates to the time period between the
ALJ’s decision and the Appeals Council’s decision.
With regard to the evidence that post-dates the Appeals Council’s decision and
which is submitted for the first time to this Court, even assuming that good cause
exists for Plaintiff’s failure to submit the evidence at the administrative level (because
the records did not exist at the time, see Caulder, 791 F.2d at 878) and assuming,
without deciding, that the records are “new and non-cumulative,” these records are
not “material” such that they would change the administrative result. See Hyde v.
Bowen, 823 F.2d 456, 459 (11th Cir. 1987).
The evidence Plaintiff submitted dated after the disability period only lists tests
and limitations that came about after his disability period ended. The amendments to
the Social Security Act have been interpreted to preclude introducing evidence
pertaining to new ailments and worsening conditions. See Caulder, 791 F.2d at 876;
see also Gallina v. Comm’r of Soc. Sec., 202 F. App’x 387, 389 (11th Cir. 2006)(holding
that the evidence, tests which the claimant had submitted to the district court, were
not material as they were conducted after the ALJ’s decision and therefore reflective

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of a worsening condition rather than of the extent of her disability prior to the
decision). For example, some of the documents Plaintiff submitted listed that he had
a rotator cuff tear in each shoulder. (Doc. 16, p. 17). However, according to one of the
records from The Kirklin Clinic at UAB, dated September 19, 2012, the rotator cuff
tear did not occur until 2011, which is after the end of his disability period. (Doc. 16,
p. 111.) Additionally, Dr. Boone, Plaintiff’s treating physician, wrote a letter in
support of Plaintiff’s disability claim in January 2013, describing his various injuries
and conditions, and stating that they are ongoing, progressive, and will worsen with
time. (Doc. 16, p. 17.) Dr. Boone went on to state that these problems will prevent
Plaintiff from continuing to work. Id. He indicated that based on an evaluation done
in 2013, Plaintiff could only occasionally lift ten pounds, could not make pushing or
pulling movements (arm and/or leg controls), could only walk only up to ten minutes
at a time, and should not bend or stoop. (Doc. 16, p. 99.) However, the doctor’s
evaluation was on Plaintiff’s capacities as they existed in 2013. The only evidence Dr.
Boone offered to support that Plaintiff was disabled during the disability period was
the doctor’s conclusory statement that he was “writing in support of Plaintiff’s
application for disability benefits.” See id. Contrary to Dr. Boone’s findings, Plaintiff
himself stated in a questionnaire during the relevant time period that he swam every

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two or three weeks, albeit for limited distances and times, and that he could lift forty
pounds. (Tr. at 128-29.) Additionally, Dr. Zimmerman, a state-agency one-time
examining physician, examined Plaintiff during the relevant time period and
determined that Plaintiff could occasionally lift twenty pounds, walk about six hours
in an eight-hour workday, stoop or kneel frequently, and was unlimited in making
pushing and pulling movements. (Tr. at 38.) As such, Dr. Boone’s opinion does not
show that Plaintiff was disabled from October 31, 2008 to December 31, 2011, but
simply indicates that Plaintiff’s condition may have worsened after that, a finding that
is irrelevant under the regulations. These records do not create a reasonable
possibility that the administrator’s result would change and thus, are immaterial.
In sum, the evidence Plaintiff submitted dated prior to his disability onset date
and dated during the relevant period does not warrant remand under sentence six
because Plaintiff failed to establish good cause for his failure to submit it. The
evidence Plaintiff submitted that relates to the time period after his disability period
also does not warrant remand under sentence six because, even assuming it is new,
non-cumulative, and Plaintiff had good cause for his failure to submit it, the evidence
is not material because it has no bearing on Plaintiff’s conditions during the time
period considered by the ALJ and would not likely change the administrative result.

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IV.

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

arguments, the Court finds the Commissioner’s decision is supported and in accord
with the applicable law. A separate order will be entered.
Done this 6th day of August 2014.

L. Scott Coogler
United States District Judge
[160704]

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