McClurkin v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 10/1/14. (CTS, )

FILED
2014 Oct-01 AM 11:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ROBBIE MCCLURKIN,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case Number: 4:13-cv-00841-JHE

MEMORANDUM OPINION 1
Plaintiff Robbie McClurkin (“McClurkin”) seeks review, pursuant to 42 U.S.C. § 405(g),
§ 205(g) of the Social Security Act, of a final decision of the Commissioner of the Social
Security Administration (“Commissioner”), denying her application for a period of disability,
disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). McClurkin
timely pursued and exhausted her administrative remedies. The case is therefore ripe for review
under 42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully considered the record
and, for the reasons stated below, the Commissioner’s decision is AFFIRMED.
I. Factual and Procedural History
McClurkin was a thirty-nine year old female at the time of the Administrative Law Judge
(“ALJ”) decision. (Tr. 30). McClurkin has up to an eighth-grade education and previously
worked as a convenience store clerk. (Tr. 30, 73-74).
McClurkin filed her application for a period of disability, DIB, and SSI on January 21,
1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 13).
1

2009, alleging an initial onset date of August 1, 2008. (Tr. 27, 239). The Commissioner denied
McClurkin’s application, (Tr. 148-157), and McClurkin requested a hearing before an ALJ. (Tr.
164).

After a hearing, the ALJ denied McClurkin’s claim on March 23, 2011. (Tr. 55).

McClurkin sought review by the Appeals Council, but it declined her request on March 1, 2013.
(Tr. 1-3). On that date, the ALJ’s decision became the final decision of the Commissioner. On
May 3, 2013, McClurkin initiated this action. (See doc. 1).
II. Standard of Review 2
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
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. Richardson v. Perales,
402 U.S. 389, 390, 91 S. Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th
Cir. 2002). This court must “scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but
less than a preponderance.” Id.
This Court must uphold factual findings that are supported by substantial evidence.
However, it reviews the ALJ’s legal conclusions de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala,
985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the

2

In general, the legal standards applied are the same whether a claimant seeks DIB or
SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel
provision as context dictates. The same applies to citations for statutes or regulations found in
quoted court decisions.
2

law, or if the ALJ fails to provide the court with sufficient reasoning for determining the proper
legal analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder. 3

The Regulations define “disabled” 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 twelve (12) months.” 20 C.F.R. § 404.1505(a). To
establish entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine, in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2013.
3

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 work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.”
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show such work exists in the national economy in significant
numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found McClurkin met the insured status requirements of the Social
Security Act through June 30, 2009, and that McClurkin had not engaged in substantial gainful
activity since August 1, 2008, the alleged onset date of her disability. (Tr. 45). At Step Two, the
ALJ found McClurkin has the following severe impairments: shoulder pain; degenerative disc
disease; borderline intelligence; and recurrent, major depression. (Id.) At Step Three, the ALJ
found McClurkin does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Id.)
Before proceeding to Step Four, the ALJ determined McClurkin’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined McClurkin has the RFC to perform sedentary work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b), but is restricted to occasional bending and
stooping and no climbing; furthermore, the ALJ found McClurkin precluded from left shoulder

4

pushing or pulling; needs a sit/stand option; and is to work in a setting where only simple and
repetitive, non-complex tasks are given. (Tr. 48).
At Step Four, the ALJ determined McClurkin is unable to perform any past relevant
work. (Tr. 53). At Step Five, the ALJ determined, based on McClurkin’s age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers in
the national economy McClurkin could perform. (Tr. 54).

Therefore, the ALJ determined

McClurkin has not been under a disability and denied McClurkin’s claim. (Tr. 55).
V. Analysis
Although the Court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his does not relieve
the court of its responsibility to scrutinize the record in its entirety to ascertain whether
substantial evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir.
1980) 4). The Court, however, “abstains from reweighing the evidence or substituting its own
judgment for that of the [Commissioner].” Id. (citation omitted).
Here, substantial evidence supports the ALJ’s determination McClurkin failed to
demonstrate a disability. McClurkin contends the ALJ’s erred by giving improper weight to the
consultative examination reports of Drs. Jane Teschner and David Wilson; giving no weight and
failing to explain the significance of state vocational evaluations; and failing to develop the
record. (Doc. 14 at 5). She further contends the Commissioner failed to meet its burden of proof
claimant could perform other work and the denial is not supported by substantial evidence

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
5

considering evidence submitted to, but ignored by, the Appeals Council. (Id.) The record
indicates otherwise.
A. The ALJ Did Not Err in Giving Less Weight to the Consultative Examination
Reports of Drs. Wilson and Teschner
McClurkin first states Dr. Wilson, a psychologist, performed a consultative exam and his
report showed “major depression recurrent, low IQ and a GAF of 50,” 5 which was supported by
McClurkin’s testimony at the hearing and the medical records of treating physicians. (Doc. 14 at
17-20). She then states Dr. Teschner performed a consultative examination and found her to be

“‘totally disabled’ due to her severe lumbosacral pain with right hip pain, paresthesia, sciatica,
lumbar radiculopathy, degenerative disc disease of the lumbosacral spine with herniated/bulging
discs, severe cervical pain, severe left shoulder pain, severe degenerative disc disease of the cervical
spine, severe sacroiliitis, fatigue, and diverculitis.” (Id. at 20). McClurkin does not explain what the
“proper” weight would be for the reports or how that might be affected by the ALJ’s discussion of
the circumstances surrounding them. She merely states “[t]he ALJ cannot substitute his opinion for
that of a trained medical professional.” (Id. at 20). The remainder of the analysis is an ad hominem
attack on the ALJ, citing extensively to a series of cases in which the ALJ in this case is explicitly
overruled for “substituting his opinion for the opinion of medical professionals.” (Id. at 20-22). She
does not explain how these cited cases are relevant to what the ALJ specifically did here.
The Commissioner responds, asserting the ALJ properly granted reduced weight to the two
consultative exam reports. First, the Commissioner explains the ALJ discussed Dr. Wilson’s report
and “properly granted it reduced weight” because the report was inconsistent with the evidence in the
record, appeared to rely heavily on Plaintiff’s subjective report of symptoms and limitations, and was

5

A GAF Score of between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” See
http://gafscore.com (last visited September 30, 2014) (bold in original).
6

conducted based on an attorney referral in an effort to generate evidence for this appeal. (Doc. 15

at 9-10) (citing Tr. 51-53). Next, the Commissioner acknowledges the ALJ did not explicitly
state the weight afforded to Dr. Teschner’s opinion of McClurkin’s limitations but states the ALJ
implicitly rejected Dr. Teschner’s opinion and, because it was not entitled to any special weight,
any error is harmless. (Id. at 10-11).
Under 20 C.F.R. § 404.1527(c)(2), a treating physician’s opinion is given controlling
weight where it is “supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record.”
Accordingly, “[t]he ALJ must clearly articulate the reasons for giving less weight to the opinion
of a treating physician, and the failure to do so is reversible error.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). However, there is no such requirement for nontreating physicians.
See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (“[T]heir opinions are not entitled to
deference because as one-time examiners they were not treating physicians.”); Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (“[T]his requirement [to state good cause for giving
less weight] only applies to treating sources. With regard to nontreating, but examining, sources,
the agency will simply ‘[g]enerally [ ] give more weight to the opinion of a source who has
examined [the claimant] than to the opinion of a source who has not examined’ him.” (quoting
20 C.F.R. § 404.1527(d)(1)). Cf. 20 C.F.R. § 404.1527(c)(2) (“We will always give good
reasons in our notice of determination or decision for the weight we give your treating source’s
opinion.” (emphasis added)). McClurkin does not contend Dr. Wilson or Dr. Teschner are
treating physicians; therefore, they receive no special deference, and not giving explicit reasons
for discounting their opinions is not reversible error. Similarly, an opinion from a physician of
any type on an issue reserved to the Commissioner is not considered a “medical opinion” at all

7

and does not receive any special significance. 20 C.F.R. § 404.1527(d).
1. Dr. Wilson’s Report
Dr. Wilson’s consultative report was not improperly discounted as the ALJ’s
determination was based on substantial evidence and the proper application of the legal
principles.

As a non-treating physician, his opinion was entitled to no special weight or

explanation requirement, but the ALJ addressed his findings extensively and found his opinion
worthy of less weight because his examination was done pursuant to a referral designed to
acquire additional evidence in this case, his opinion was not in line with the wider record, and he
appeared to rely heavily on McClurkin’s subjective reports, the credibility of which the ALJ
questioned elsewhere in the decision. (Tr. 52-53).
The ALJ noted that, other than a Lexapro prescription, McClurkin had sought no
treatment for her depression, (tr. 51); that she was capable of carrying out daily activities,
including overseeing her son’s health and going out unaccompanied, (tr. 51); and that Dr.
Wilson’s opinion conflicted with the opinion of another psychologist, Dr. Jon Rogers, to whose
report the ALJ gave more weight, (tr. 52). Dr. Rogers reported McClurkin, though exhibiting a
depressed mood, “presented with a cooperative attitude, normal mental activity and speech, and
with fair judgment and insight,” as well as being able to concentrate and pay attention and
capable of abstract thought. (Tr. 37) (citing tr. 621-26). He gave her a global assessment of
functioning (“GAF”) score of 55, 6 “indicating that [McClurkin]’s impairments pose a moderate
limitation on [her] ability to work.” (Id.) (citing tr. 621-26).
McClurkin argues “Dr. Wilson’s opinion is supported by “Claimant’s testimony at the
6

Error! Main Document Only.A GAF between 51 and 60 indicates “[m]oderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” See http://gafscore.com (last visited September 30, 2014) (bold in original).
8

hearing,” (doc. 14 at 18); however, as the Commissioner points out, (doc. 15 at 10), it is exactly
this connection between her subjective statements, which the ALJ found not credible, and Dr.
Wilson’s opinion upon which the ALJ partially based the reduction in weight given to Dr.
Wilson’s opinion, (tr. 52-53). McClurkin also argues “Dr. Wilson’s opinion was supported by
medical records of treating physicians,” citing to records indicating diagnoses of depression and
anxiety, (doc. 14 at 19); however, it is not the depression and anxiety diagnosis the ALJ
discredited but the extent to which that diagnosis affected McClurkin’s daily functioning. The
ALJ expressly credited Dr. Rogers’s opinion, (tr. 52), and he also diagnosed McClurkin with
depression and anxiety disorders, (tr. 37). The cited records support Dr. Rogers’s opinion, upon
which the ALJ’s RFC is based, as much as they support Dr. Wilson’s.
The ALJ’s decision to give less weight to Dr. Wilson’s opinion is supported by
substantial evidence and was not improper.
2. Dr. Teschner’s Report
As with Dr. Wilson’s report above, Dr. Teschner’s consultative report was not
improperly discounted as that determination was based on substantial evidence and the proper
application of the legal principles. As McClurkin asserts and the Commissioner acknowledges,
the ALJ did not clearly articulate grounds for discounting Dr. Teschner’s report; however, like
Dr. Wilson, her opinion as a non-treating physician was entitled to no special weight or
explanation requirement. In addition, there is evidence from other consultative medical sources
entitled to the same deference as Dr. Teschner to which the ALJ explicitly gave greater weight
and which support the ALJ’s RFC. (See tr. 42-43, 382-94 (Dr. Born’s consultative examination
report)). Furthermore, the only portion of the report to which McClurkin cites is the portion of it
to which the ALJ is, by rule, to give no special weight at all (Dr. Teschner’s conclusion

9

McClurkin is “totally disabled”). (Doc. 14 at 20). The ALJ did not “substitute his opinion for
that of a trained medical professional,” as McClurkin asserts; he substituted the opinion of Dr.
Born, a trained medical professional, for that of Dr. Teschner, who, immediately before giving
her conclusion, belittled her own opinion by stating McClurkin needed “an evaluation by a
savvier, more experienced doctor,” (tr. 652). The ALJ’s decision to give less weight to Dr.
Teschner’s opinion is supported by substantial evidence and was not improper.
B. The ALJ Did Not Err in Giving Reduced Weight to the State-Sponsored Vocational
Evaluations Without Explanation
McClurkin cites to vocational evaluations from the Huntsville Rehabilitation Center that
“determined that she did not have the potential for returning to work or employment.” (Doc. 14
at 22). McClurkin then states the ALJ “disregarded these reports without an explanation,” and
asserts, “[j]ust as an ALJ cannot ignore medical opinions, and [sic] ALJ cannot ignore vocational
opinions.” (Id.) McClurkin presents no argument for her statement the ALJ “ignored” the
vocational opinions and submits no authority for the implied proposition an ALJ must explicitly
address a vocational counselor’s opinion. McClurkin “has waived this issue because [she] did
not elaborate on this claim or provide citation to authority about this claim.”

Outlaw v.

Barnhart, 197 F. App’x 825, 828 (11th Cir. 2006); accord N.L.R.B. v. McClain of Georgia, Inc.,
138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner, without
supporting arguments and citation to authorities, are generally deemed to be waived.”). 7

7

Even if the issue is addressed, as the Commissioner observes, (doc. 15 at 12 n.11), the
rehabilitation service’s evaluators are not “acceptable medical sources” under 20 C.F.R. §
404.1513(a) and, therefore, are “not entitled to any special consideration.” Berkel v. Colvin, No.
1:12-CV-03558-AJB, 2014 WL 806864, at *11 (N.D. Ga. Feb. 27, 2014). “[T]here 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 the district court or
this Court to conclude that the ALJ considered plaintiff’s medical condition as a whole.” Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (internal quotation marks omitted). The
10

C. The Vocational Expert’s Testimony is Not Based on an Inaccurate or Incomplete
Hypothetical Question
McClurkin next asserts that, although the ALJ may rely on a vocational expert’s answer
to a hypothetical question as substantial evidence, he may do so only “so long as the question
takes into account the claimant’s precise condition and limitations.” (Doc. 14 at 23) (quoting
Holley v. Chater, 931 F. Supp. 840, 851 (S.D. Fla. 1996)). McClurkin contends the ALJ’s
hypothetical was inaccurate because it assumed an ability to perform light work but “[t]here is no
medical evidence that claimant can work or perform light work.” (Id. at 23-24). 8
The ALJ determined McClurkin was not able to perform a full range of sedentary work
and listed those limitations in his RFC, stating “she is restricted to occasional bending and
stopping and no climbing,” “is precluded from left shoulder pushing and pulling,” “needs a
sit/stand option and is to work in a setting where only simple and repetitive, non-complex tasks
are given.” (Tr. 48). The ALJ posed the following hypothetical to the vocational expert:
Q All right, now, I want you to assume that I find from the evidence that we
have a younger individual with a limited education, let’s say who could
perform light work, except with the following limitations. She’s restricted to
occasional bending and stooping, no – we’ll say no climbing, no left shoulder
vocational assessments conflict with the opinions of acceptable medical sources, (tr. 374-94),
and appear to be based heavily on McClurkin’s subjective statements, (tr. 618-20). These are the
same reasons the ALJ gave for giving reduced weight to Dr. Wilson’s report, (tr. 52-53). The
ALJ not providing specific statements regarding the weight given to the counselors’ evaluation
does not indicate he did not consider McClurkin’s medical condition as a whole, especially in
light of his description of that evaluation in his decision, (tr. 38), and his explicit reliance on the
reports of examining physicians, (tr. 52).
8

McClurkin also asserts the hypothetical was incomplete because it did not consider her
“severe scoliosis of the thoracic spine, severe right elbow pain due to tendonitis, acute gouty
arthritis, generalized anxiety disorder, asthma and shortness of breath due to chronic obstructive
pulmonary disease, severe abdominal pain due to sigmoid colon diverticulitis and holes in
intestine, fatigue, and chest pain with heart palpitations.” (Doc. 14 at 23). “However, the mere
existence of these impairments does not reveal the extent to which they limit her ability to work
or undermine the ALJ’s determination in that regard.” Moore v. Barnhart, 405 F.3d 1208, 1213
n.6 (11th Cir. 2005).
11

pushing and/or pulling, let’s say simple, repetitive, noncomplex tasks.
...
Q. Mr. Hare, tell me if there would be any sedentary opportunities that you
believe Ms. McClurkin could perform, please?
A. I would say, Your Honor, such jobs as stuffer as in pillows or stuffed animals.
There’s approximately 2,000 in Alabama, 390,000 in the nation.... I would
say nut sorter. It’s sedentary, unskilled, 650 in Alabama, 40,000 in the nation.
And that’s what I see for her in the sedentary category.
Q. Mr. Hare, let’s go back to the original [“light work”] hypothesis. I want you
to consider that I’m determining Ms. McClurkin should be permitted to sit
and/or stand at her own option if I determine that limitation would be
appropriate....
Q. I see. What about the impact, if any, on her ability to do the sedentary stuffer
and nut sorter position?
A. No, on the nut sorter, yes on the stuffer.
(Tr. 95-97) (emphasis added). Altogether, this final testimony by the vocational expert was
based on a hypothetical assuming a claimant with the ability to perform only sedentary work
with a sit/stand option but restricted to occasional bending and stooping, no climbing, no left
shoulder pushing or pulling, and only simple, repetitive, noncomplex tasks. This hypothetical
mirrors the ALJ’s ultimate findings; therefore, the hypothetical is not inaccurate or incomplete
and could be relied upon as substantial evidence.
D. The New Evidence Submitted to the Appeals Council and the Appeals
Council’s Refusal to Grant Review Does Not Entitle McClurkin to Remand
McClurkin asserts she presented new, noncumulative, and material evidence to the
Appeals Council after the ALJ’s decision, which the Appeals Council did not adequately
evaluate. (Doc. 14 at 26-28). McClurkin argues the Appeals Council’s “review is purely
conclusory, and it epitomizes ‘perfunctory adherence’ to the ALJ decision.” (Id. at 28). The
Commissioner asserts the evidence is not new, noncumulative, or material. (Doc. 15 at 18-21).

12

The Eleventh Circuit has addressed the issue of judicial review of new evidence
submitted to the Appeals Council as follows:
The Appeals Council has discretion not to review the ALJ’s denial of benefits;
however, if the claimant submits new noncumulative and material evidence to the
Appeals Council after the ALJ’s decision, it must consider such evidence where it
relates to the period on or before the date of the ALJ’s hearing decision. 20
C.F.R. § 404.970(b); see also Keeton v. Dep’t of Health & Human Servs., 21 F.3d
1064, 1066 (11th Cir. 1994). The Appeals Council must adequately evaluate the
new evidence. Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980). Where the
Appeals Council does not adequately evaluate new evidence, but instead
perfunctorily adheres to the ALJ’s decision, the Commissioner’s findings are not
supported by substantial evidence. Bowen v. Heckler, 748 F.2d 629, 634 (11th
Cir. 1984).
. . . When new evidence is submitted to and accepted by the Appeals Council and
it denies review, the district court conducts a new review of the evidence
independently of the Appeals Council. [Ingram v. Comm’r of Soc. Sec., 496 F.3d
1253, 1266 (11th Cir. 2007)]. The district court must consider the new evidence
submitted to the Appeals Council and determine whether the Commissioner’s
decision is contrary to the weight of the evidence currently of record. 20 C.F.R. §
404.970(b); Id. “[B]ecause a reviewing court must evaluate the claimant’s
evidence anew, the [Appeals Council] is not required to provide a thorough
explanation when denying review.” Burgin v. Comm’r of Soc. Sec., 420 Fed.
App’x. 901, 903 (11th Cir. 2011) (per curiam) (citing Ingram, 496 F.3d at 1262).
Caces v. Comm’r, Soc. Sec. Admin., 560 F. App’x 936, 941 (11th Cir. 2014). The new evidence
McClurkin submitted to the Appeals Council here is neither noncumulative nor material;
therefore, the Appeals Council did not err by refusing to evaluate evidence neither new nor
material, and the Commissioner’s decision is not contrary to the weight of the evidence currently
of record.
As the Commissioner points out, (doc. 15 at 17 n.13), the new evidence consists
primarily of treatment notes. (Tr. 664-723). McClurkin describes these notes as showing
diagnoses of depression, pain, degenerative disc disease, radiculopathy, and diverticulitis, (doc.
14 at 12-16); however, the medical records and consultative reports the ALJ previously
considered acknowledged these already, (tr. 374) (in which Dr. Heilpern describes a primary
13

diagnosis of diverticulitis); (tr. 384) (in which Dr. Born acknowledges depression, lower back
and shoulder pain, and diverticulitis); (tr. 476) (indicating Quality of Life Health Services’
diagnosis of degenerative disc disease); (tr. 565) (in which Dr. Flowers indicates left cervical
radiculopathy); (tr. 612) (in which Dr. Palmer describes McClurkin’s MRI as “consistent with
degenerative disc with annular bulges predominantly at the 4-5 level”). Furthermore, McClurkin
cites nothing in the additional evidence “reveal[ing] the extent to which [these impairments]
limit her ability to work.” Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005); see
also Caces, 560 F. App’x at 941 (“Even though Dr. Kabakibou diagnosed Caces with failed back
syndrome, low back pain, and other conditions before and after the insured status expired, he
never indicated any functional limitations or work restrictions, nor did he consider Caces
disabled, at any time on or before December 31, 2006.” (emphasis added)).
The new piece of evidence upon which McClurkin appears to primarily rely is a DeKalb
County Department of Human Resources form for determining mental/physical capacity
hardship. (Doc. 14 at 25) (citing tr. 724-26). McClurkin argues this is the evaluation of a
treating physician, Dr. Francis Koe, who stated, “patient’s condition is such as to prevent or
substantially reduce her ability to work even part time.” (Id.) (citing tr. 725). More fully, Dr.
Koe checked a box to that effect as opposed to the only other available checkbox indicating
McClurkin’s “shoulder pain” would have “[n]o affect on employment.” (Tr. 725).
McClurkin asserts Dr. Koe’s opinion, as that of a treating physician, is entitled to great
weight or explicit explanation as to the reasons for giving it less weight, (doc. 14 at 25);
however, that is only true where it is a medical opinion. Where it is, as here, an opinion not
describing the limitations an impairment causes but instead a conclusory statement about her
“ability to work,” it is, by rule, given no special weight. See 20 C.F.R. § 404.1527(d)(1) (“[The

14

Commissioner] [is] responsible for making the determination or decision about whether [the
claimant] meet[s] the statutory definition of disability.... A statement by a medical source that
[the claimant] [is] ‘disabled’ or ‘unable to work’ does not mean that [the Commissioner] will
determine that [the claimant is] disabled.”); Denomme v. Comm’r, Soc. Sec. Admin., 518 F.
App’x 875, 878 (11th Cir. 2013) (“While [the examining physician] generally opined that if
untreated, [claimant]’s condition would likely prevent her from maintaining gainful employment,
this was not a medical assessment, but simply an opinion on an issue reserved to the
Commissioner’s discretion.”).
Perhaps more importantly, even if Dr. Koe’s opinion were given controlling weight, the
conclusory and boilerplate nature of the “opinion” makes it entirely useless for purposes of
determining social security disability. Dr. Koe checked the box stating McClurkin’s shoulder
pain would “prevent or substantially reduce []her ability to work.” (Tr. 725). A substantial
reduction in her ability to work (as opposed to no affect at all) is entirely consistent with the
ALJ’s determination she required sedentary work with additional limitations. There is not a
reasonable possibility this evidence would change the administrative result. The Commissioner’s
decision is not contrary to the great weight of the evidence currently of record.
E. The ALJ Did Not Fail to Properly Develop the Record
McClurkin supports her assertion that the ALJ failed to develop the record by listing the
records she submitted after the ALJ’s decision and marking with an asterisk those records
referencing treatment prior to that decision. (Doc. 14 at 28-29). McClurkin cites extensively to
cases stating the ALJ has a duty to fully and fairly develop the record but presents no argument
to explain why the records she submitted to the Appeals Council show such a failure. (See id.).
As a result, this claim is waived. See Outlaw v. Barnhart, 197 F. App’x at 828; N.L.R.B. v.

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McClain of Georgia, Inc., 138 F.3d at 1422. Regardless, as explained above, the medical records
to which McClurkin cites do not present new noncumulative and material evidence; therefore,
their absence from the record does not create an incomplete or unfair record.
VI. Conclusion
Because the Commissioner’s decision is based on substantial evidence and the ALJ
applied proper legal standards, the Commissioner’s decision is AFFIRMED and this action will
be DISMISSED WITH PREJUDICE. A separate order will be entered.
DONE, this 1st day of October, 2014.

_________________________________
JOHN E. OTT
CHIEF UNITED STATES MAGISTRATE JUDGE

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