Clough v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 2/13/2015. (PSM)
2015 Feb-13 AM 08:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social Security,
CASE NO. 4:14-cv-00080-JEO
Plaintiff Mark Clough brings this action pursuant to 42 U.S.C. § 405(g), seeking review
of the final decision of the Commissioner of Social Security (“Commissioner”) denying his
applications for a period of disability, disability insurance benefits, and supplemental security
income (“SSI”). (Doc. 1).1 He has also filed a motion to remand pursuant to sentence four of §
405(g). (Doc. 11). The case has been assigned to the undersigned United States Magistrate Judge
pursuant to this court’s general order of reference dated January 14, 2013. The parties have
consented to the jurisdiction of this court for disposition of this matter. (Doc. 12). See 28 U.S.C.
§ 636(c), FED. R. CIV. P. 73(a). Upon review of the record and the relevant law, the
undersigned finds that the Commissioner’s decision is due to be affirmed and that Clough’s
motion to remand is due to be denied.
References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the docket sheet in
the court’s Case Management/Electronic Case Files (CM/ECF) system.
I. PROCEDURAL HISTORY
Clough filed applications for a period of disability, disability insurance benefits, and SSI
in April 2010, alleging disability beginning April 7, 2010, due to seizures, anxiety, a back injury,
and leg problems. (R. 143, 147, 166).2 His claim was denied initially. (R. 114-15). He then
requested a hearing before an Administrative Law Judge (“ALJ”), which was held on May 22,
2012. (R. 81-113 ). Clough was represented by counsel at the hearing. (R. 81). On June 15,
2012, the ALJ issued his decision finding that Clough was not disabled. (R. 31-42).
Clough requested the Appeals Council to review the ALJ’s decision and submitted
additional evidence regarding his alleged disability. (R. 15, 255-61). The Appeals Council
denied Clough’s request for review on November 12, 2013. (R. 1-7). On that date, the ALJ’s
decision became the final decision of the Commissioner. Clough then filed this action for
judicial review under 42 U.S.C. § 405(g). (Doc. 1).
II. STANDARD OF REVIEW3
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of the 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
References to “R. __” are to the page number of the administrative record, which is
encompassed within Docs. 6-1 through 6-8.
In general, the legal standards applied are the same whether a claimant seeks disability insurance
benefits or SSI. However, separate, parallel statutes and regulations exist for disability insurance
benefits and SSI claims. Therefore, citations in this report 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.
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
The 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
law, or if the ALJ fails to provide the court with sufficient reasoning for determining that 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.4 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
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts 400
to 499, revised as of April 1, 2007.
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) and 416.920(a)(4)(i-v). The Commissioner must
determine in sequence:
(1) Is the claimant presently unemployed;
(2) Is the claimant's impairment severe;
(3) Does the claimant's impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. pt. 404, subpt. P, app. 1 [the “Listings”];
(4) Is the claimant unable to perform his or her former occupation;
(5) Is the claimant unable to perform any other work within the economy?
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). An affirmative answer to any of the
above questions leads either to the next question or, at steps three and five, to a finding of
disability. A negative answer to any question, other than step three, leads to a determination of
“not disabled.” Id.; see 20 C.F.R. §§ 404.1520 and 416.920.
IV. EVIDENCE BEFORE THE ALJ
Clough was 34 years old at the time of the ALJ’s decision. (R. 84). He has a 9th grade
education. (Id.) His work history includes work as a sheetrock hanger, plumber’s helper,
carpenter, and lathe operator. (R. 84-87). He also has experience installing metal roofs. (R. 88).
Clough alleges that he became unable to work due to seizures, anxiety, a back injury, and leg
problems. (R. 166).
Clough has a history of suffering from seizures. (R. 88, 196). In a Seizure Questionnaire
he completed in August 2010 in connection with his application for disability benefits, he
reported that he experienced one seizure per month. (R. 196). He further reported that he was not
taking his seizure medication–Dilantin–regularly because he could not afford it. (R. 197). At the
hearing in May 2012, Clough testified that he had resumed taking Dilantin two months earlier
and had experienced two bad seizures and maybe a couple of seizures in his sleep since going
back on the medication. (R. 89-90). He also testified that he had been averaging about four
seizures a month before resuming the medication. (R. 91). Clough said that he loses
consciousness during his seizures and that all of his muscles are sore when he comes out of them.
(R. 90). He has no warning as to when the seizures will occur. (Id.)
Clough testified that he was injured in a motor vehicle accident in 2000. (R. 95). He
provided no medical records regarding the extent of his injuries, but testified that he broke both
of his legs in the accident and has a steel rod in his right leg and a plate and six screws in his left
ankle. (Id.) Clough said that his right hip hurts “pretty good” and that his left ankle swells and
hurts “a lot.” (Id.) He rated his hip and ankle pain as a 4 or 5 on a scale of zero to 10. (R. 106).
On October 2, 2009, Clough experienced a seizure while working on a roof and fell and
injured his back. (R. 270). Clough testified that he was not taking his seizure medication at that
time. (R. 91). He was admitted to the emergency room at Marshall Medical Center South, where
a computerized tomography scan of his spine revealed a compression fracture of T12 and a
fracture of the right transverse process of L1. (R. 271). Ten days later Clough was examined at
North Alabama Family Practice. (R. 270). Clough’s physician, Dr. Andrew Reiland, arranged for
Clough to be examined by a neurosurgeon, but Clough did not keep the appointment because he
could not afford to pay for it. (R. 265, 268). Dr Reiland subsequently released Clough from his
care, noting that Clough “did not do anything” he was asked to do to treat his seizure disorder.
Clough testified that his back injury causes him to experience pain in his shoulders and
lower back and that it is hard for him to bend over and pick things up. (R. 93). He said the pain
in his back is “constant,” especially when he sits or stands in one place too long. (Id.) He takes
Tylenol for the pain, which he rated as a 7 out of 10 on an average day. (R. 93, 102).
Clough testified that he has suffered from anxiety since he injured his back. (R. 96). He
said that the anxiety makes it hard to go out in public and that he experiences panic attacks where
it “feels like the walls are closing in” and he starts hyperventilating. (R. 97). He said he was
taking hydroxyzine for his anxiety but had not received any formal treatment for the disorder. (R.
Clough testified that his pain interferes with his ability to sleep and affects his memory
and concentration. (R. 98). He said that he stays home most of the day and spends most of his
time lying down. (R. 94, 99). He does some cooking and cleaning, watches television, and
exercises. (R. 100). He cannot drive because his license was revoked after he fell from the roof
in 2009. (R. 101).
In September 2010, after Clough applied for disability benefits and SSI, he was examined
by Dr. Alvin Tenchavez, a consultative physician. (R. 300-02). Dr. Tenchavez noted that
Clough had normal reflexes and could heel, toe, and tandem walk and could stoop and rise on his
knees. (R. 302). He further noted that Clough had normal grip and bicep testing; negative
straight leg raising; full 5/5 strength everywhere; and no pain, restriction, or swelling in his
joints, including the lower back. (Id.) Dr. Tenchavez’s diagnostic assessment was seizure
disorder, chronic low back pain, and nicotine dependence. (Id.)
In October 2010, Clough was examined by Jack Bentley, Jr., a consultative psychologist.
(R. 304-306). Dr. Bentley observed that Clough was able to read and write reasonably well; that
there was no impairment in his communication skills; that his tertiary and immediate memories
were intact; and that he was able to complete his activities of daily living without assistance. (R.
305-06). Dr. Bentley estimated Clough’s cognitive functioning to fall in the borderline range. (R.
305). He noted that Clough was “mildly anxious” during his interview but was “not in any
significant distress.” (R. 306). Dr. Bentley’s diagnostic impression of Clough included
generalized anxiety disorder with occasional panic attacks and mild depressive disorder not
otherwise specified (NOS). (Id.) He concluded that Clough had a favorable prognosis for his
present level of functioning. (Id.)
Dr. Keith Langford performed a consultative review of Clough’s medical records in
October 2010. (R. 307). Based on his review of the records, Dr. Langford determined that it was
possible that Clough had pain “to some degree” as a result of his back injury, but that the pain
“must not be severe.” (Id.) He also opined that Clough needed to take seizure precautions. (Id.)
Dr. Robert Estock, a consultative psychiatrist, reviewed Clough’s medical records in
November 2010. (R. 308-21). Dr. Estock opined that Clough had no severe mental impairments
and had only a mild restriction in his activities of daily living, only mild difficulties in social
functioning, and only mild difficulties in maintaining concentration, persistence, or pace. (R.
308, 318). His overall opinion was that Clough’s untreated mental condition was “currently less
than severe and would improve even more with treatment, both currently [and] relating to the
period before the insured status was last met. “ (R. 320).
In March 2012, two months prior to the hearing before the ALJ, Clough sought treatment
at Rapid Care after suffering a seizure one week earlier. (R. 323) He told the treating physician
that he suffered from seizures and was in need of medication. (Id.) He reported that he had last
taken his seizure medication (Dilantin) about a year ago. (Id.) He was prescribed a refill of his
Clough’s most recent treatment prior to the hearing was on May 2, 2012, at Quality of
Life Health Services. (R. 326-30). The medical records reflect an assessment of seizure disorder,
asymptomatic, and anxiety, recurrent. (R. 327-28). He was prescribed Vistaril for his anxiety.
V. FINDINGS OF THE ALJ
After consideration of the entire record before him and application of the sequential
evaluation process, the ALJ made the following findings:
The ALJ found that Clough met the insured status requirements of the Social Security Act
through September 30, 2010, and that he had not engaged in substantial gainful activity since
April 7, 2010, the alleged onset date of his disability.5 (R. 33).
The ALJ found that Clough has the following severe impairments: a history of epileptic
seizures; a fracture of L1 transverse process; a comminuted compression fracture of T12; a
history of gross medical non-compliance with treatment and medication; and generalized anxiety
disorder and depression. (Id.) He also found that Clough’s right leg and left ankle fractures were
non-severe impairments, noting that the fractures had healed and that there was no evidence the
fractures were conditions causing anything more than minimal functional limitations or
restrictions. (R. 34).
See footnote 3.
The ALJ found that Clough does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in the Listings. (Id.)
The ALJ found that Clough has the residual functioning capacity6 (“RFC”) to perform
light work, subject to the following limitations: he should avoid concentrated exposures to
extremes of cold, heat, humidity, wetness, or vibration; he should do no driving of commercial
vehicles; he should do no work from unprotected heights; he should do no work with hazardous
machinery; he can do occasional to frequent stooping, kneeling, crouching, crawling and
climbing of stairs and ramps; and he should do no climbing of ladders, ropes, or scaffolds. (R.
35). The ALJ further found that Clough can understand, remember and carry out instructions
sufficient to perform low semi-skilled to 1-2-3 step tasks; that he can maintain concentration,
persistence, and/or pace for periods of up to two hours sufficient to perform an 8-hour workday
with routine breaks; that he can do low-stress work that involves occasional changes in the work
setting and is goal-oriented rather than production rate pace work; and that he should deal with
things rather than people in his work. (R. 35-36).
The ALJ found that Clough has past relevant work as a construction worker and lathe
tender, but that he is unable to perform this work. (R. 40). Based on the testimony of a
vocational expert, however, the ALJ further found that there are other jobs in the national
economy that Clough can perform considering his age, education, work experience, and RFC. (R.
41). Such jobs include food preparation worker, hand packer, and cashier. (Id.) The ALJ thus
concluded that Clough is not disabled. (R. 42).
Residual functioning capacity is the most a claimant can do despite his impairment(s). See 20
C.F.R. § 404.1545(a)(1).
Clough urges the court to reverse or remand the Commissioner’s decision on three
grounds: (1) the Appeals Council denied his request for review without providing an adequate
discussion of his new evidence; (2) the ALJ failed to consider the combination of his
impairments; and (3) the ALJ failed to state adequate reasons for finding him not credible.7 The
court will address each argument in turn.
The Appeals Council Adequately Considered Clough’s Additional Evidence
After the ALJ rendered his decision that Clough was not disabled, Clough requested
review by the Appeals Council and provided the Appeals Council with additional evidence
consisting of medical records dated August 31, 2012, from Dr. Daniel Prince and medical records
dated September 5, 2012, from Dr. David Wilson of Gadsden Psychological Services.8 9 Relying
primarily on Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980), Clough argues that “[w]hen a
claimant properly presents new evidence, and the Appeals Council denies review, the Appeals
In his Memorandum in Support of Disability, Clough also argued that the ALJ erred in failing to
order a consultative mental evaluation. (Doc. 10 at 19). He withdrew that argument in his Reply in
Support of Disability. (Doc. 17 at 7).
The administrative record does not include the medical records from Dr. Prince and Dr. Wilson,
but does include the letters that Clough’s attorneys submitted to the Appeals Council along with the
records. (See R. 255-261). In addition, the Appeals Council stated in its denial of review that it looked at
the medical records from Dr. Prince and Gadsden Psychological Services (Dr. Wilson) and that it was
returning the records to Clough. (See R. 2). Therefore, the court is satisfied that the medical records
were provided to the Appeals Council notwithstanding their omission from the administrative record.
They are part of the record before the court, as they were attached as exhibits to Clough’s motion to
remand. (Docs. 11-1 through 11-4).
In his Memorandum in Support of Disability, Clough asserts that he also provided the Appeals
Council with medical records from Quality of Life dated October 8, 2012, through May 14, 2013. (Doc.
10 at 2). However, there is no evidence in the record before the court that Clough did, in fact, provide
the Quality of Life records to the Appeals Council or, if he did, that they were received by the Appeals
Council before it issued its denial of review on November 12, 2013. See the discussion at Section VII
Council must show in its written denial that it has adequately evaluated the new evidence.” (Doc.
10 at 11) (emphasis omitted). Clough contends that the Appeals Council failed to do so here.
The very argument Carney is making here was recently considered and rejected by the
Eleventh Circuit. In Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014), a
claimant argued that “[w]hen the Appeals Council denied his request for review, it was required
to provide a discussion of the new evidence he submitted to it.” In support of his argument, the
claimant relied on Epps and two other cases, Mann v. Gardner, 380 F.2d 182 (5th Cir. 1967), and
Bowen v. Heckler, 748 F.2d 629 (11th Cir. 1984). The Eleventh Circuit rejected the claimant’s
argument, holding that “[n]othing in Mann, Epps, or Bowen ... requires the Appeals Council to
provide a detailed discussion of a claimant’s new evidence when denying a request for review.”
Mitchell, 771 F.3d at 783. The court noted that “our conclusion that the Appeals Council is not
required to explain its rationale for denying a request for review is consistent with the holdings of
other circuits that have considered this issue. See, e.g., Meyer v. Astrue, 662 F.3d 700, 705–06
(4th Cir. 2011); Taylor v. Comm'r of Soc. Sec., 659 F.3d 1228, 1232 (9th Cir. 2011); Martinez v.
Barnhart, 444 F.3d 1201, 1207 (10th Cir. 2006); Higginbotham v. Barnhart, 405 F.3d 332, 335
n. 1 (5th Cir. 2005); cf. Damato v. Sullivan, 945 F.2d 982, 989 (7th Cir. 1991).” Mitchell, 771
F.3d at 784-85.
Here, the Appeals Council stated in its denial of review that it “looked at” the medical
records from Dr. Prince and Gadsden Psychological Services (Dr. Wilson). (R. 2). The Appeals
Council noted that the ALJ’s decision was dated June 15, 2012, and that the records from Dr.
Prince and Gadsden Psychological Services were “about a later time.” (Id.) The Appeals Council
thus determined that the records “[did] not affect the decision about whether [Clough was]
disabled beginning on or before June 15, 2012.” (Id.) No further discussion of this “new
evidence” was required.
Moreover, the Appeals Council need only consider new evidence that is material and
chronologically relevant. See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th
Cir. 2007) (noting that the Appeals Council must consider “new, material, and chronologically
relevant evidence”). New evidence is material if “it is relevant and probative so that there is a
reasonable possibility that it would change the administrative result.” Hyde v. Bowen, 823 F.2d
456, 459 (11th Cir. 1987) (citations omitted). It is chronologically relevant if it “relates to the
period on or before the date of the Administrative Law Judge hearing decision.” 20 C.F.R. §
404.970(b). If these conditions are satisfied, the Appeals Council must review the case to
determine whether the ALJ’s “action, findings, or conclusion is contrary to the weight of the
This court, in turn, “must consider evidence not submitted to the administrative law judge
but considered by the Appeals Council when [the court] reviews the Commissioner’s final
decision denying Social Security benefits.” Ingram, 496 F.3d at 1258. “[W]hen a claimant
properly submits new evidence to the Appeals Council, a reviewing court must consider whether
that new evidence renders the denial of benefits erroneous.” Id. at 1262.
Here, the medical records from Dr. Prince and Dr. Wilson were not chronologically
relevant. As the Appeals Council correctly observed in its denial of benefits, none of this new
evidence relates to the period on or before June 15, 2012, the date of the ALJ’s decision. Dr.
Prince was not one of Clough’s treating physicians and his records are based solely on his
consultative physical examination of Clough on August 31, 2012, more than two months after the
ALJ issued his decision. Similarly, Dr. Wilson was not a treating mental health provider and his
records are based solely on a one-time psychological examination of Clough on September 5,
2012, again more than two months after the date of the ALJ’s decision. Therefore, the records
were not relevant to the Appeals Council’s consideration of whether to review the ALJ’s
decision. See Smith v. Soc. Sec. Admin., 272 F. App’x 789, 801-02 (11th Cir. 2008) (noting that
three reports submitted by the claimant to the Appeals Council, including consultative
examination reports from Dr. Prince and Dr. Wilson, “came after [the date of] the ALJ’s decision
and, therefore, the AC does not consider them in determining whether to review the ALJ’s
Even if the medical records from Dr. Prince and Dr. Wilson were chronologically
relevant, the court is satisfied that they would not render the ALJ’s denial of benefits erroneous.
Even considering this new evidence, the ALJ’s decision is supported by substantial evidence and
is not contrary to the weight of the evidence as a whole. Dr. Prince diagnosed Clough as
suffering from “multiple fractures, epilepsy, grand mal seizure activity, generalized anxiety
disorder, and borderline intellectual functioning” (doc. 11-1 at 3), which is largely consistent
with the ALJ’s finding that Clough has the severe impairments of epileptic seizures, fractures of
the L1 transverse process and T12, generalized anxiety disorder, and depression. (R. 33). Dr.
Wilson’s observations regarding Clough’s appearance, thought processes, speech, mood, and
mental capabilities were consistent with Dr. Bentley’s findings (compare doc. 11-3 at 2-3 with R.
305), and many of the limitations he noted in Clough’s abilities were encompassed within the
ALJ’s RFC finding. For instance, Dr. Wilson determined that Clough had only mild limitations
in his ability to understand, remember, and carry out very short and simple instructions, but had
marked limitations in his ability to carry out detailed instructions. (Doc. 11-4 at 1). Consistent
with these determinations, the ALJ’s RFC finding limited Clough to performing low semi-skilled
work and 1-2-3 step tasks. (R. 35). Similarly, Dr. Wilson determined that Clough had moderate
or marked limitations in his ability to work in coordination or proximity to others, interact with
the general public, and get along with co-workers (doc. 11-4 at 1-2); the ALJ limited Clough to
goal-oriented work that deals with things instead of people. (R. 36).
The court does note that Dr. Prince diagnosed Clough with “total disability” and that Dr
Wilson opined that Clough’s depression and anxiety “would make working very difficult at this
point.” (Doc. 11-1 at 3; Doc. 11-3 at 4). However, the determination as to whether a claimant is
disabled or unable to work is one that is ultimately reserved to the Commissioner. See 20 C.F.R.
§§ 404.1527(d) and 416.927(d) (opinions that a claimant is “disabled” or “unable to work” are
not medical opinions and are not given “any special significance”; they are “opinions on issues
reserved for the Commissioner because they are administrative findings that are dispositive of a
case”). Accordingly, Dr. Prince’s opinion that Clough is totally disabled and Dr. Wilson’s
opinion that it would be very difficult for Clough to work would not, in any event, be entitled to
any special significance.
The ALJ’s decision contains a detailed discussion of the testimony and medical evidence
in the record before him and his findings regarding Clough’s impairments, limitations, and RFC
are consistent with and amply supported by such evidence. The additional evidence Clough
submitted to the Appeals Council–none of which is chronologically relevant–did not render the
ALJ’s denial of benefits erroneous and does not provide a basis for changing the decision.
The ALJ Considered the Combination of Clough’s Impairments
Clough next argues that the ALJ failed to consider the combination of his impairments in
making his disability determination. (Doc. 10 at 19-21). However, he points to nothing in the
ALJ’s decision that reflects such a failing. He does not even attempt to show how the ALJ
allegedly failed to consider his impairments in combination.
Contrary to Clough’s naked assertion, the ALJ’s decision reflects that he considered the
combined effects of Clough’s impairments. (See R. 33-40). Indeed, in making his RFC finding,
the ALJ stated as follows:
Affording the claimant the greater benefit of doubt, the undersigned finds that the
combination of history of epileptic seizures and fractures of L1 and T2 reduces the
claimant’s functional capacity to no more than light work on a sustained basis with
seizure precautions. Furthermore, symptoms associated with generalized anxiety
disorder and depression reduce[ ] the claimant’s mental capacity to perform no more
than low-semiskilled work with allowance for low stress and other factors.
(R. 39). Moreover, the ALJ expressly found that Clough had “severe impairments” but did not
have “an impairment or combination of impairments” that met or medically equaled one of the
listed impairments. (R. 33-34). Such findings provide sufficient evidence that the ALJ did, in
fact, consider the combined effects of Clough’s impairments. See Hutchinson v. Astrue, 408 F.
App’x 324, 327 (11th Cir. 2011) (“The ALJ specifically stated that [the claimant] did not have an
‘impairment, individually or in combination’ that met one of the listed impairments. . . . That
statement shows that the ALJ considered the combined effects of [the claimant’s] impairments
during her evaluation.”); Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002).
The ALJ Properly Considered Clough’s Credibility
The ALJ found that Clough’s statements concerning “the intensity, persistence and
limiting effects” of his symptoms were “not credible” to the extent they were inconsistent with
his RFC assessment. (R. 38). Clough argues that the ALJ failed to state adequate reasons for
finding him not credible. “If the ALJ discredits subjective testimony, he must articulate explicit
and adequate reasons for doing so.” Wilson, 284 F.3d at 1225; see 20 C.F.R. §§ 404.1529 and
Contrary to Clough’s argument, the ALJ provided a thorough discussion of his reasons
for finding Clough’s testimony not credible:
The claimant simply alleges a greater degree of debilitation than what objective
medical evidence can support. If the claimant’s back pain had been as bad as he had
alleged, there should have been at least some sort of available medical records to
confirm his subjective complaints. Instead, there is gross medical non-compliance
indicated in the record starting with the very first exhibit ... The claimant alleges a
history of ongoing seizures despite taking medication. However, the medical
evidence of record indicated that the claimant had just started taking his seizure meds
again in April 2012. Interestingly, that same record dated May 2, 2012, indicated that
his seizure disorder was ASYMPTOMATIC ... Moreover, the [s]eizure questionnaire
completed by the claimant indicated only one seizure per month ... This apparently
is during the time that the claimant was “not on any seizure medication” ... Likewise,
despite a fracture of T12/L1, the claimant has demonstrated no significant functional
deficits, although a pain component could reasonably be expected with medium to
heavy work. ...
The undersigned noted that the medical evidence of record made no mention of any
motor vehicle trauma. Moreover, the claimant was working as a roofer, climbing
ladders, and going across rooftops in October 2009 when he fell from a roof
secondary to a seizure. Thus, his work activity does not support any indication that
the claimant’s lower extremity fractures were causing any significant limitations or
While the claimant has limitations, no treating physician has indicated that the
claimant is disabled. ... The claimant reported he exercises for an hour a day,
watchers movies, and helps with housework daily. Such activity certainly does not
support the severity, frequency, or intensity of his alleged symptoms.
(R. 38-39). All of these reasons provide a sufficient basis for discrediting Clough’s testimony.
VII. CLOUGH’S MOTION TO REMAND
On June 21, 2014, the same day he filed his Memorandum in Support of Disability,
Clough filed a motion to remand the case pursuant to sentence four of § 405(g). (Doc. 11). In his
motion, Clough argues that the case should be remanded to require the Appeals Council to
consider the medical records from Dr. Prince dated August 31, 2012; the medical records from
Dr. Wilson dated September 5, 2012; and medical records from Quality of Life dated October 8,
2012, through May 13, 2013. (Docs. 11-1 to 11-5). Clough contends that he submitted all of
these records to the Appeals Council but that they were omitted from the administrative record.
(Doc. 11 at 1).
To the extent Clough argues that the case should be remanded for consideration of the
medical records from Dr. Prince and Dr. Wilson, his motion is simply a rehashing of his
argument that the Appeals Council failed to show that it adequately considered this new
evidence. This argument was discussed and rejected in Section VI above.
With respect to the Quality of Life medical records, there is no evidence before the court
that Clough provided the records to the Appeals Council or, if he did, that they were received by
the Appeals Council before it issued its denial of review on November 12, 2013. Clough
contends that the Quality of Life medical records were included with a letter from his counsel to
the Appeals Council dated November 11, 2013 (one day before the Appeals Council denied
review), and were resubmitted with a letter from his counsel dated November 19, 2013 (one
week after the Appeals Council denied review). (Doc. 10 at 2). However, the administrative
record does not contain the Quality of Life records or either of his counsel’s letters to the
Appeals Council. In addition, the Appeals Council’s denial of review does not mention the
Quality of Life records or the letters. Although Clough attached the Quality of Life records to his
motion to remand (doc. 11-5), he did not attach either of the letters he claims his counsel
submitted to the Appeals Council, and they are not part of the record before this court. In sum,
there is insufficient evidence in the record for the court to find that Clough submitted the Quality
of Life records to the Appeals Council or that he did so in a timely manner.
Therefore, sentence six of 42 U.S.C. §405(g) provides the “sole means” for the court to
remand the case to the Commissioner for consideration of the Quality of Life records. Ingram,
496 F.3d at 1267. Sentence six provides that a court “may ... at any time order additional
evidence to be taken before the Commissioner ... 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.” 42 U.S.C. § 405(g). “A remand to the
Commissioner is proper under sentence six when new material evidence that was not
incorporated into the administrative record for good cause comes to the attention to the district
court.” Ingram, 496 F.3d at 1267.
Clough has not offered any good cause for his failure to incorporate the Quality of Life
medical records into the administrative record. Moreover, the records are not “material”
evidence because the records are not “relevant and probative so that there is a reasonable
possibility that [they] would change the administrative result.” Hyde, 823 F.2d at 459. The
medical records are dated from October 8, 2012, through May 13, 2013, many months after the
ALJ issued his decision on June 15, 2012. In addition, the records reflect that Clough’s seizures
were regularly assessed as “asymptomatic” and his anxiety as “improved.” (Doc. 11-5 at 3, 7,
11). In fact, the most recent Quality of Life record from May 2013 does not list seizures or
anxiety as issues and includes no treatment plan for either condition. (Doc. 11-5 at 12-14).
Finally, to the extent that the records continue to reflect chronic back pain, they still do not
pertain to the period for which Clough seeks benefits and are not relevant or material. See Wilson
v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (“We review the decision of the ALJ as to
whether the claimant was entitled to benefits during a specific period of time, which period was
necessarily prior to the date of the ALJ’s decision.”); Jones v. Callahan, 122 F.3d 1148, 1154
(8th Cir. 1997) (“An implicit requirement is that the new evidence pertain to the time period for
which benefits are sought, and that it not concern later-acquired disabilities or subsequent
deterioration of a previously non-disabling condition.”).
For all of the foregoing reasons, Clough’s motion to remand is due to be denied.
For the reasons set forth above, the undersigned concludes that the decision of the
Commissioner is due to be AFFIRMED and that Clough’s motion to remand (doc. 11) is due to
DONE, this the 13th day of February.
JOHN E. OTT
Chief United States Magistrate Judge
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