Morland v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION AND ORDER DISMISSING CASE that claimant's motion for remand is DENIED and the decision of the Commissioner is AFFIRMED; costs are taxed against claimant; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/9/2012. (AHI)

FILED
2012 Oct-09 PM 04:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
LISA MOLAND,
Claimant,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. CV-11-S-1155-M

MEMORANDUM OPINION AND ORDER
Claimant Lisa Moland commenced this action on April 1, 2011, pursuant to 42
U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”)
denying her claim for continuation of a period of disability and disability insurance
benefits. On May 7, 2012, claimant filed a motion to remand the case to the
Commissioner pursuant to Sentence Six of 42 U.S.C. § 405(g), for consideration of
a subsequent favorable decision by the Commissioner.1 For the reasons stated herein,
the court finds that claimant’s motion to remand pursuant to Sentence Six is due to
be denied, and the Commissioner’s decision to deny benefits is due to be affirmed.
I. MOTION TO REMAND
1

Doc. no. 9.

Plaintiff requests the court to remand this case, pursuant to Sentence Six of 42
U.S.C. § 405(g), for consideration of the subsequent decision of the Commissioner,
dated March 16, 2011, that claimant was entitled to benefits beginning August 5,
2009, the day after the ALJ entered the administrative decision that is the subject of
this appeal.
Sentence Six states:
The court may, on motion of the Commissioner of Social Security made
for good cause shown before the Commissioner files the
Commissioner’s answer, remand the case to the Commissioner of Social
Security for further action by the Commissioner of Social Security, and
it may at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing 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; and the Commissioner of Social Security shall, after the
case is remanded, and after hearing such additional evidence if so
ordered, modify or affirm the Commissioner’s findings of fact or the
Commissioner’s decision, or both, and shall file with the court any such
additional and modified findings of fact and decision, and, in any case
in which the Commissioner has not made a decision fully favorable to
the individual, a transcript of the additional record and testimony upon
which the Commissioner’s action in modifying or affirming was based.
42 U.S.C. § 405(g). “Sentence six remands are ‘available when evidence not
presented to the Commissioner at any stage of the administrative process requires
further review.’” Poellnitz v. Astrue, 349 F. App’x 500, 504 (11th Cir. 2009) (quoting
Ingram v. Commissioner of Social Security Administration, 496 F.3d 1253, 1267

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(11th Cir. 2007)).
To be entitled to remand to the Commissioner, the claimant must show
that (1) new, non-cumulative evidence exists; (2) the evidence is
material such that a reasonable possibility exists that the new evidence
would change the administrative result; and (3) good cause exists for the
claimant’s failure to submit the evidence at the appropriate
administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.
1986). However, “not 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.” Id. at 876 (internal quotation marks omitted).
Accordingly, sentence six encompasses only those instances in which
“the district court learns of evidence not in existence or available to the
claimant at the time of the administrative proceeding that might have
changed the outcome of that proceeding.” Ingram, 496 F.3d at 1267
(quoting Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S. Ct. 2658,
2664, 110 L. Ed.2d 563 (1990)).
Carson v. Commissioner of Social Security, 373 F. App’x 986, 988 (11th Cir. 2010).
The March 16, 2011 Notice of Award is “new,” in the sense that it did not exist
on August 4, 2009, the date of the ALJ’s decision in this case. For that same reason,
it can also be said that claimant had good cause for failing to present the Notice of
Award during the administrative proceedings that are being challenged in this case.
Those obvious observations aside, the Eleventh Circuit has held that,
[f]or evidence to be new and noncumulative, it must relate to the
time period on or before the date of the ALJ’s decision. See 20 C.F.R.
404.970(b). Evidence of deterioration of a previously-considered
condition may subsequently entitle a claimant to benefit in a new
application, but it is not probative of whether a person was disabled
during the specific period under review. See Wilson v. Apfel, 179 F.3d
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1276, 1279 (11th Cir. 1999) (per curiam) (holding that a doctor’s
opinion one year after the ALJ decision was not probative to any issue
on appeal). By contrast, evidence of a condition that existed prior to the
ALJ hearing, but was not discovered until after the ALJ hearing, is new
and noncumulative. See Vega v. Comm’r of Soc. Sec., 265 F.3d 1214,
1218-19 (11th Cir. 2001) (holding that remand was warranted because
a doctor discovered a herniated disk after the ALJ decision).
Leiter v. Commissioner of Social Security Administration, 377 F. App’x 944, 950
(11th Cir. 2010). The foregoing quotation from the unpublished opinion in Leiter is,
in effect, just another way of saying that the new evidence must be “material,”
meaning that it would be likely to change the administrative result.
Here, the March 16, 2011 Notice of Award does not relate to the time period
before the ALJ’s August 4, 2009 decision, and it has little likelihood of changing the
administrative result on claimant’s first claim. The Notice of Award stated that
claimant was entitled to benefits as of August 5, 2009, but the ALJ’s decision in this
case addressed claimant’s disability status as of June 28, 2006. Claimant did not
explain why the Commissioner’s decision about her disability status as of August 5,
2009 should relate back to June 28, 2006. Plaintiff’s condition may have worsened
over time, but that does not necessarily mean that the Commissioner’s decision about
claimant’s disability status as of June 28, 2006 is incorrect. In fact, as discussed more
fully below, the evidence of record supports the ALJ’s decision that claimant was not
disabled as of June 28, 2006. Thus, the March 26, 2011 Notice of Award is not “non4

cumulative” or “material,” as required for a Sentence Six remand. See, e.g., Cassidy
v. Commissioner of Social Security Administration, 383 F. App’x 840, 842 (11th Cir.
2010) (holding that a subsequent award of benefits was “not inconsistent” with the
previous finding of no disability because “significant additional medical evidence
was presented in support of the” later claim, and “that the evidence was relevant to
the time after” the initial decision) (emphasis supplied); Allen v. Commissioner of
Social Security, 561 F.3d 646, 653 (11th Cir. 2009) (“[A] subsequent favorable
decision itself, as opposed to the evidence supporting the subsequent decision, does
not constitute new and material evidence under § 405(g).”); Wilson v. Apfel, 179 F.3d
1276, 1279 (11th Cir. 1999) (holding that, while a medical opinion rendered one year
after the ALJ’s decision “may be relevant to whether a deterioration in [the
claimant’s] condition subsequently entitled her to benefits, it is simply not probative
of any issue in this case”).
II. REVIEW OF THE ADMINISTRATIVE DECISION
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
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(11th Cir. 1983).
Claimant contends that the Commissioner’s decision was neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ:

(1) should have remanded her claim to the

Commissioner for further consideration of additional evidence submitted for the first
time to the Appeals Council; (2) failed to fully develop the administrative record; (3)
failed to consider all of claimant’s severe impairments and erred by failing to find that
claimant’s depression was a severe impairment; (4) failed to state adequate reasons
for finding claimant to be less than fully credible; (5) rendered a decision that was not
based on substantial evidence, once the additional evidence submitted to the Appeals
Council is considered; and (6) erred by finding that claimant did not satisfy the
requirements of Listing 12.04.
A.

Remand for Consideration of Additional Evidence
Claimant first asserts that the ALJ should have remanded the case to the

Commissioner for further consideration of evidence that was presented to the Appeals
Council after the date of the administrative decision, including: (1) medical records
from Dr. Charles Bell, claimant’s treating physician, dated February 14, 2008 to June
6, 2009, and July 30, 2009 to September 3, 2009; (2) a consultative psychological
report from Dr. David Wilson, dated September 15, 2009; and (3) a physical
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consultative evaluation report from Dr. Daniel Prince, dated December 17, 2009.
Because that evidence was submitted for the first time to the Appeals Council,2 the
court must consider whether remand is warranted under “sentence four” of 42 U.S.C.
§ 405(g),3 not “sentence six” of that statute. As the Eleventh Circuit has observed:
“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, 496 F.3d at 1261. A
sentence four remand, as opposed to a sentence six remand, is
appropriate when “evidence properly presented to the Appeals Council
has been considered by the Commissioner and is part of the
administrative record.” Ingram, 496 F.3d at 1269. Under a sentence
four remand, when a claimant has submitted evidence for the first time
to the AC, the claimant is not required to show good cause. See
Melkonyan v. Sullivan, 501 U.S. 89, 99-100, 111 S. Ct. 2157, 2164, 115
L. Ed. 2d 78 (1991) (recognizing “Congress’ explicit delineation in §
405(g)” between sentence four and sentence six remands and noting that
a court may remand under sentence six “only if the claimant shows good
cause for failing to present the evidence earlier”); see also Ingram, 496
F.3d at 1258 (recognizing that we have previously “mistakenly stated
that evidence first presented to the Appeals Council could be considered
by the court only if the applicant had good cause for not presenting it
2

See Tr. 5 (Order of Appeals Council acknowledging receipt of a brief from claimant’s
representative dated May 4, 2010, which included as attachments all of the additional medical
evidence referenced by claimant). Claimant asserts that “[t]he fact that the [representative’s] letter
and records they [sic] were combined together creates an inference that they were not read and not
considered.” Doc. no. 8 (claimant’s brief), at 15 (alterations supplied). Claimant cites no authority
for that assertion, and the court finds that it is clearly contradicted by the record. The Appeals
Council specifically stated in its March 2, 2011 Notice of Appeals Council Action that it considered
the additional evidence submitted by claimant. Tr. 1-2.
3

Sentence Four states that “[t]he court shall have 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 a rehearing.” 42 U.S.C.
§ 405(g).

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earlier to the administrative law judge.”).
Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008) (alteration and ellipses in
original).
When a claimant submits new evidence to the AC, the district court must
consider the entire record, including the evidence submitted to the AC,
to determine whether the denial of benefits was erroneous. Ingram, 496
F.3d at 1262. Remand is appropriate when a district court fails to
consider the record as a whole, including evidence submitted for the first
time to the AC, in determining whether the Commissioner’s final
decision is supported by substantial evidence. Id. at 1266-67. The new
evidence must relate back to the time period on or before the date of the
ALJ’s decision. 20 C.F.R. § 404.970(b).
Smith, 272 F. App’x at 802.
Claimant asserts that the additional evidence warranted remand because it “was
very important and substantiated Claimant’s testimony.”4 It is true, as claimant points
out, that “[t]he additional records from Dr. Bell showed a continuation of treatment
as to the decision dates and thereafter.”5 Even so, the mere fact that claimant
continued to be treated by Dr. Bell after the time period considered by the ALJ does
not render the ALJ’s decision suspect. Just because claimant continued to receive
treatment for certain conditions does not mean that those symptoms were disabling.
Instead, the relevant consideration is the effect of the impairment, or combination of

4

Doc. no. 8 (claimant’s brief), at 15.

5

Id. at 15.

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impairments, on the claimant’s ability to perform substantial gainful work activities.
See 20 C.F.R. § 404.1505 (defining a disability as “the inability to do 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”). See also Bowen
v. Yuckert, 482 U.S. 137, 146 (1987) (“The [Social Security] Act ‘defines “disability”
in terms of the effect a physical or mental impairment has on a person’s ability to
function in the workplace.’”) (quoting Heckler v. Campbell, 461 U.S. 458, 459-60
(1983)). There is nothing in the additional records from Dr. Bell to indicate a higher
level of functional impairment than that which was assessed by the ALJ. Moreover,
most of the other evidence submitted to the Appeals Council originated after the date
of the ALJ’s decision and, consequently, it is not relevant to whether claimant was
disabled prior to that date.
In summary, even considering the additional evidence submitted for the first
time to the Appeals Council, the record as a whole does not call into question the
ALJ’s decision. Accordingly, the case will not be remanded to the Commissioner for
consideration of additional evidence. This determination also resolves claimant’s
fifth challenge to the ALJ’s decision, i.e., that the ALJ’s decision was not based on
substantial evidence because it did not include the additional evidence submitted to
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the Appeals Council.
B.

Failure to Develop Record
Next, claimant asserts that the ALJ failed to fully develop the administrative

record because he failed to obtain Dr. Bell’s records from February 14, 2008 to June
5, 2009 prior to deciding claimant’s case. As discussed above, even if Dr. Bell’s
records from that time period had been considered, the ALJ’s decision still would be
supported by substantial evidence. Therefore, even if the ALJ did err in failing to
obtain those records (and this court is not holding that he did), any such error would
be harmless.
C.

Severe Impairments
Next, claimant asserts that the ALJ erred in failing to consider her migraine

headaches, depression, hypertension, and anxiety to be severe impairments. Social
Security regulations define a “severe” impairment as one that “significantly limits [a
claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §
404.1520(c). “An impairment can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual that it would not be
expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience.” Brady v. Heckler, 724 F.2d. 914, 920 (11th Cir.
1984).
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The ALJ in this case found that claimant suffered from the severe impairments
of osteoarthritis, fibromyalgia, history of compression fracture, and Epstein-Barr
Syndrome. With regard to claimant’s other alleged impairments, he stated:
I find the evidence of a history of left lateral epicondylitis;
headaches, respiratory distress syndrome, and depression supports the
conclusion that none of those conditions have resulted in significant
functional limitations. I find the depression has resulted in no more than
mild restriction of activities of daily living; mild difficulties in social
functioning; mild difficulties in concentration, persistence, or pace; and,
no episodes of decompensation. Therefore, I find the foregoing
conditions or impairments are non-severe under the Act and
Regulations.6
The record supports the ALJ’s conclusion. The only substantive argument that
claimant makes to the contrary is that the ALJ in the March 16, 2011 administrative
decision found depression to be a severe impairment. As discussed above, the ALJ’s
March 16, 2011 findings do not necessarily relate back to the time period relevant to
this case. Furthermore, there is no evidence in the record from the relevant time
period that indicates claimant suffered any more than mild limitations from
depression, or any of the other impairments characterized by claimant as “severe.”
D.

Credibility
Claimant next argues that the ALJ failed to state adequate reasons for finding

her to be less than fully credible. The ALJ evaluated claimant’s credibility in
6

Tr. 18.

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conjunction with her subjective symptoms. To demonstrate that pain or another
subjective symptom renders her disabled, claimant must “produce ‘evidence of an
underlying medical condition and (1) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (2) that the objectively
determined medical condition is of such severity that it can be reasonably expected
to give rise to the alleged pain.’” Edwards v. Sullivan, 937 F. 2d 580, 584 (11th Cir.
1991) (quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). “After
considering a claimant’s complaints of pain, the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence.”
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)). If an ALJ discredits subjective testimony on
pain, “he must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d
1007, 1011 (11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir.
1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)).
Here, the ALJ found that claimant’s medically determinable impairments could
not be expected to cause the level of subjective symptoms she alleged, and that
“claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are credible only to the extent they are consistent with the residual

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functional capacity assessment that I have made.”7 He also stated:
In assessing credibility in this case, I’ve considered the
conservative nature of treatment, gaps in treatment and, as noted, the
fact that no physician of record has assigned medical restrictions or
opined the claimant is disabled. Also, I have considered the claimant’s
longitudinal earnings history, evidencing only sporadic work prior to the
alleged onset date of disability, raising the question as to whether the
claimant’s continuing unemployment is actually due to medical
impairments.8
The court finds the ALJ’s assessment of claimant’s credibility to be adequate, in
accordance with applicable legal standards, and supported by substantial evidence of
record.
E.

Listing 12.04
Listing 12.04, addressing affective disorders, requires proof of:
1. Depressive syndrome characterized by at least four of the
following:
a. Anhedonia or pervasive loss of interest in almost all
activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
7

Tr. 20.

8

Id.

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f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking.
20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.04A (listings) (the so-called “A criteria”).
Additionally, a claimant must show at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.04B (listings) (“B criteria”). Alternatively,
a claimant can demonstrate 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, with symptoms or signs currently
attenuated by medication or psychosocial support, and one of the
following:
1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
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change in the environment would be predicted to cause the
individual to decompensate; or
3. Current history of 1 or more years’ inability to function outside
a highly supportive living arrangement, with an indication of
continued need for such an arrangement.
20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.04C (listings) (“C criteria”).
In her brief, claimant points only to medical treatment records noting her
diagnosis of depression and her treatment with medication. However, she does not
explain why the condition results in sufficiently severe functional limitations to
satisfy the requirements of the Listing. The ALJ did not even discuss whether
claimant satisfied this Listing. There was no need for him to do so, however, because
he found that claimant’s depression caused only mild impairments in her functional
abilities, and that it therefore was not even a severe impairment. As discussed above,
that decision was supported by substantial evidence of record. Accordingly, there
also is no evidence to support satisfaction of the Listing.
III. CONCLUSION AND ORDERS
In accordance with the foregoing, claimant’s motion for remand pursuant to
Sentence Six of 42 U.S.C. § 405(g) is DENIED. Additionally, because the ALJ’s
decision was supported by substantial evidence and in accordance with applicable
legal standards, the decision of the Commissioner is AFFIRMED. Costs are taxed

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against claimant. The Clerk is directed to close this file.
DONE this 9th day of October, 2012.

______________________________
United States District Judge

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