Norris v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/13/2015. (PSM)

FILED
2015 Feb-13 PM 01:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

THOMAS NORRIS
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,

)
)
)
)
)
)
)
)
)
)

Civil Action Number
2:14-cv-1164-AKK

Defendant.
MEMORANDUM OPINION
Plaintiff Thomas Norris (“Norris”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review
of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge
(“ALJ”) applied the correct legal standard and that his decision—which has
become the decision of the Commissioner—is supported by substantial evidence.
Therefore, the court AFFIRMS the decision denying benefits.
I. Procedural History
Norris filed his application for Title II Disability Insurance Benefits and
Title XVI Supplemental Security Income on August 4, 2010, alleging an amended

Page 1 of 19

disability onset date of November 1, 2009 due to gout, swelling in feet, hernia
operation, severe asthma, and high blood pressure. (R. 44, 240, 244). After the
SSA denied his application, Norris requested a hearing before an ALJ. (R. 77, 9394). The ALJ subsequently denied Norris’s claim, (R. 17-20), which became the
final decision of the Commissioner when the Appeals Council refused to grant
review, (R. 1-4). Norris then filed this action pursuant to § 205(g) of the Act, 42
U.S.C. § 205(g), on April 4, 2014. Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Page 2 of 19

Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). A physical or
mental impairment is “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

Page 3 of 19

Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

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

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
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, on 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. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, he must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
Page 4 of 19

The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:

1

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761 F.2d 1545, 1548
(11th Cir. 1985).

Page 5 of 19

It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as a
matter of law, has accepted that testimony as true. Implicit in this rule is the
requirement that such articulation of reasons by the [ALJ] be supported by
substantial evidence
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Norris had not
engaged in substantial gainful activity since November 1, 2009, and therefore met
Step One. (R. 19). Next, the ALJ found that Norris satisfied Step Two because he
suffered from the severe impairments of “bilateral tinea pedis, gout, asthma,
anxiety, posttraumatic stress disorder (PTSD), and organic mental disorders . . . .”
Id. The ALJ then proceeded to the next step and found that Norris did not satisfy
Step Three since he “[did] not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments.” Id.
Although the ALJ answered Step Three in the negative, consistent with the law,
see McDaniel, 800 F.2d at 1030, he proceeded to Step Four, where he determined
that Norris has the residual functional capacity (RFC) to:
[P]erform light work . . .[,] except [Norris] experiences moderate pain with
its moderate [e]ffect on his ability to concentrate, which occurs on an
Page 6 of 19

occasional basis during an 8-hour workday. As long as [Norris] has regularly
scheduled breaks normally allowed in the workplace by an employer,
[Norris] will never be off task during an 8-hour workday. [Norris] must have
a work environment that is free of dust, fumes, or gases and has a
temperature and humidity controlled atmosphere. [Norris] is unable to work
around unprotected heights or dangerous or moving equipment. [Norris] can
never climb ladders, ropes, or scaffolds; can occasionally kneel, crouch, and
crawl; and can frequently balance, stoop, reach, handle, finger, and feel.
(R. 21). In light of Norris’s RFC, the ALJ determined that Norris “is unable to
perform any past relevant work” as a “warehouse worker and melter.” (R. 27).
Lastly, in Step Five, the ALJ considered Norris’s age, education, work experience,
and RFC, and determined “there are jobs that exist in significant numbers in the
national economy that [Norris] can perform.” Id. Therefore, the ALJ found that
Norris “has not been under a disability, as defined in the Social Security Act, from
November 1, 2009.” (R. 28).
V. Analysis
Norris raises multiple contentions of error which the court will outline and
address below. None of contentions, however, establish that the ALJ committed
reversible error. Therefore, the court will affirm the ALJ’s decision.
1. Alleged failure to properly consider all of Norris’s impairments and their
combined effects
In two related contentions, Norris maintains that the ALJ erred by not
including his depression, pain, and swelling in both feet as “severe” impairments at
Step Two, and by not considering these impairments at Step Three in combination
Page 7 of 19

with Norris’s other impairments of tinea pedis, gout, asthma, anxiety, PTSD, and
organic mental disorders (all of which the ALJ considered “severe”). Doc. 12 at
27-31. Unfortunately for Norris, the contention that the ALJ should have counted
Norris’s depression, pain, and feet swelling as distinct impairments at Step Two is
unavailing because Step Two acts as “filter,” and merely requires a finding of “at
least one severe impairment.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987). Significantly, where, as here, the ALJ finds at least one severe impairment
at Step Two and proceeds in Step Three to offer “specific and well-articulated
findings” as to the effect of “all of the claimant’s impairments, whether severe or
not, in combination,” the ALJ properly applies Steps Two and Three. Heatly v.
Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010); Bowen v. Heckler,
748 F.2d 629, 635 (11th Cir. 1984). The ALJ in this case clearly considered all of
Norris’s impairments (whether severe or not) and determined that Norris’s physical
impairments and mental impairments, “considered singly and in combination, do
not meet or medically equal” the listing criteria. (R. 20-21). See Jones v. Dep’t. of
Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991) (ALJ’s finding that
claimant did not have “an impairment or combination of impairments listed in, or
medically equal to one [in the listings]” is sufficient to show that he considered the
impairments in combination) (emphasis in original). Moreover, in making his RFC
determination, the ALJ thoroughly discussed Norris’s testimony and medical
Page 8 of 19

records specifically as they relate to depression, feet swelling, foot pain, neck pain,
thoracic pain, lower back pain, wrist and elbow pain, and headaches. (R. 22-27). In
light of these “specific and well-articulated findings” by the ALJ, the court finds
no error in the ALJ’s evaluation of Norris’s depression, pain, and feet swelling.
See Heatly, 382 F. App’x at 825 (ALJ properly considered claimant’s chronic back
pain where the ALJ did not include back pain at Step Two but instead, at Step
Three, “discussed in detail [the claimant’s] testimony and medical history, which
included [the claimant’s] pain complaints, his limitations due to pain, and the
diagnoses he received related to his pain”).
2. Alleged improper discounting of Dr. Muhammad Tariq’s opinion
Norris next contends that the ALJ erred in failing to give “adequate weight
to the opinion of [Norris’s] treating physician,” Dr. Tariq. Doc. 12 at 42. While
Norris is correct that “the testimony of a treating physician must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary,”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997), the record here does not
support Norris’s assertion that Dr. Tariq is a “treating physician.”2 It is well-

2

While ALJs “will evaluate every medical opinion [they] receive,” 20 C.F.R. § 404.1527(d), they will not
necessarily afford all medical sources equal weight. Rather, the SSA classifies acceptable medical sources into three
types: nonexamining sources, nontreating (but examining) sources, and treating sources. A “nonexamining source”
is “a physician, psychologist, or other acceptable medical source who has not examined [the claimant] but provides a
medical or other opinion in [the claimant’s] case.” 20 C.F.R. § 404.1502. A “nontreating source” (but examining
source) has examined the claimant but does not have an “ongoing treatment relationship” with the claimant. Id. A
treating source, to whom the ALJ will generally afford great deference, has examined the claimant and has an
“ongoing treatment relationship” with him consistent with accepted medical practice. Id.

Page 9 of 19

established that “to qualify as a treating source, the physician must have an
ongoing treatment relationship with the claimant.” Reynolds-Buckley v. Comm’r of
Soc. Sec., 457 F. App’x 862, 864 (11th Cir. 2012) (citing 20 C.F.R.
§ 404.1502). Significantly, a physician “who has treated or evaluated [a claimant]
only a few times . . . [can only be a] treating source if the nature and frequency of
the treatment or evaluation is typical for [the claimant’s] condition(s).” 20 C.F.R. §
404.1502. In this case, the record includes evidence of only two visits over a period
of one month where Dr. Tariq treated Norris for blisters on his hands and feet: on
November 11, 2011 (when Dr. Tariq ordered blood tests) and on December 12,
2011 (a follow up visit to discuss the test results). (R. 618-625). Norris has made
no showing that these two visits—the second of which was merely a follow up to
the first to discuss test results—are sufficiently frequent to amount to an “ongoing
treatment relationship.” Based on this record evidence, the court concludes that
these visits are alone insufficient to establish that Dr. Tariq is a treating physician.3
Smith v. Comm’r of Soc. Sec., 482 F.3d 873 (6th Cir. 2007) (physician who
examined claimant only once was not treating source to be accorded highest level

3

Norris maintains that he visited “Quality of Life” (the medical office at which Dr. Tariq sees patients)
twelve times for treatment. Doc. 12 at 42. However, the record reveals that on most of those visits Norris received
treatment from nurse practitioners—not Dr. Tariq. (R. 581, 585, 589, 593, 597, 598, 601, 604, 608, 612, 617). To the
extent that Norris relies on the nurse practitioners’ opinions to establish that he is disabled, the court notes that nurse
practitioners are not “acceptable medical sources.” Himes v. Comm’r of Soc. Sec., 585 F. App'x 758, 764 (11th Cir.
2014). See also 20 C.F.R. § 404.1502 (defining treating source as the claimant’s own “physician, psychologist, or
other acceptable medical source”); 20 C.F.R. § 404.1513 (defining “acceptable medical sources” as licensed
physicians, psychologists, optometrists, podiatrists, and speech-language pathologists).

Page 10 of 19

of deference); Daniels v. Apfel, 242 F.3d 388 (10th Cir. 2000) (physician who
diagnosed claimant and prescribed medication is not a treating source where the
record contains “no evidence that [the physician] provided ongoing care for the
[claimant]”); Yarbrough v. Astrue, No. 5:12-CV-00754-RDP, 2013 WL 4434013,
at *5 (N.D. Ala. Aug. 15, 2013) (physician was not a treating source in part
because he treated the claimant “on only four occasions”). Because Dr. Tariq is not
a treating source, the ALJ was not required to afford substantial weight to Dr.
Tariq’s opinion. See Stone v. Comm’r of Soc. Sec., 544 F. App’x 839, 842 (11th
Cir. 2013) (“The ALJ does not have to defer to the opinion of a physician who
conducted a single examination, and who was not a treating physician.”).
Accordingly, the court rejects Norris’s contention on this issue.
3. Alleged failure to base the RFC determination on substantial evidence
Norris contends next that the ALJ erred in his RFC determination. However,
the court cannot discern what record evidence Norris is relying on to support his
contention or which aspect of the RFC determination he is challenging. See doc. 12
at 43-46. Although Norris points out that there is no “Residual Functional Capacity
Form” in the record, the significance of this assertion is unclear since Norris does
not offer any legal authority or elaborate on its relevance. Id. at 44. Similarly,
without any further support, Norris asserts that the ALJ erred “in finding that
[Norris] has minor physical limitations” and “can perform sustained work
Page 11 of 19

activities.” Id. Finally, Norris points to case law which stands for the proposition
that an ALJ should rely on formal assessments by treating or examining physicians
“addressing [a claimant’s] ability to perform work activities such as lifting,
standing, walking, bending, carry or squatting” to support an RFC determination,
Thomason v. Barnhart, 344 F. Supp. 2d 1326, 1329 (N.D. Ala. 2004), but again
does not explain how those cases support his position. Because “issues raised in a
perfunctory manner, without supporting arguments and citation to authorities, are
generally deemed to be waived,” N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418,
1422 (11th Cir. 1998) (citing Cont’l Tech Serv., Inc. v. Rockwell Int’l Corp, 927
F.2d 1198, 1199 (11th Cir. 1991)); see also Outlaw v. Barnhart, 197 F. App’x 825,
828 n.3 (11th Cir. 2006) (finding that the claimant waived his argument because he
“did not elaborate on [the] claim or provide citation to authority”), the court rejects
Norris’s arguments.
Norris’s arguments fail also because a careful review of the record shows
that the ALJ’s RFC determination is based on substantial evidence. Specifically,
the record includes a consultative examination by Dr. Sathyan Iyer establishing
that Norris “does not have any restrictions of functions involving sitting, standing,
walking, handling, hearing, and speaking,” but that he “may have some impairment
of functions involving extremes of temperature and dusty atmosphere.” (R. 404).
Dr. Iyer also found that Norris “has full range of motion of all the major joints
Page 12 of 19

without any restirctions,” his “[m]uscle power of the upper and lower extremities is
normal,” his gait is normal, and he can “walk on his heels, tiptoes, and squat.” (R.
403). Furthermore, Norris explained in the function report form that he filled out
with his application that he could lift up to 20 pounds. (R. 257). All of this record
evidence is consistent with the ALJ’s conclusion that Norris can perform “light
work.” 20 C.F.R. §§ 404.1567(b), 416.967(b) (“Light work involves lifting no
more than twenty pounds at a time with frequent lifting or carrying of objects
weighing up to ten pounds . . . a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.”).4
4. Alleged improper discounting of Norris’s subjective testimony
Next, as far as the court can discern, Norris claims that the ALJ’s reasons for
discrediting Norris’s testimony regarding his head trauma and severe foot pain are
not based on objective medical evidence. Doc. 12 at 49. First, with respect to
Norris’s head trauma, although Norris points to no medical evidence to
substantiate his position, the court has carefully reviewed the record and finds the
ALJ’s reasoning consistent with the medical evidence. Specifically, while Norris
complained that he would commonly “black out” from head trauma after an
4

To the extent Norris is arguing that the ALJ erred in his RFC determination and there is therefore “no
basis for the hypothetical question presented to the [vocational expert],” doc. 12 at 44, the court rejects this
argument because Norris raises it in a perfunctory matter, see N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422
(11th Cir. 1998); Outlaw v. Barnhart, 197 F. App’x 825, 828 n.3 (11th Cir. 2006), and because the court concludes
that the ALJ’s RFC determination was proper.

Page 13 of 19

incident where he was hit in the face with a hammer, (R.50), the results of a
computer tomography scan of Norris’s head after the hammer incident were
normal, which supports the ALJ’s finding that Norris’s “assertions might not be
entirely accurate,” (R. 26). Second, the court is confounded by Norris’s assertion
that the ALJ discounted Norris’s testimony that he experiences severe pain in his
feet given that the ALJ actually found that Norris has “some legitimate limitations
from his gout and from his bilateral [tinea] pedis,” and counted gout and bilateral
tinea pedis as severe impairments at Step Two. (R. 25). Ultimately, based on the
court’s review of the record, it is readily apparent that the ALJ thoroughly
recounted Norris’s medical records and pointed to various examples where
Norris’s subjective testimony contradicted his medical records. (R. 22-27).
Therefore, the court concludes that the ALJ did not err in evaluating Norris’s
subjective complaints. See Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir.
2002) (noting that the “ALJ made a reasonable decision to reject [the claimant’s]
subjective testimony, articulating, in detail, the contrary evidence as his reasons for
doing so”).
5. Alleged improper inference from lack of medical treatment
Contrary to Norris’s contention that the ALJ “drew adverse inferences from
lack of medical treatment . . . without considering [Norris’s] explanation,” doc. 12
at 53-54, the ALJ actually noted that Norris’s records include “numerous” visits to
Page 14 of 19

the doctor, (R. 26). The only assertion in the ALJ’s opinion which could be
construed as a comment on Norris’s lack of medical treatment is the ALJ’s
observation that “the claimant is not the most reliable when it comes to follow up
visits” with his medical providers. (R. 26). The ALJ made this observation in the
context of counteracting the opinion of Dr. David Wilson (an examining
psychologist), who noted that Norris lacked “adequate access to necessary medical
or psychiatric care.” (R. 26, 632). As the ALJ pointed out, Dr. Wilson’s opinion is
“unfounded” based on “the numerous doctor’s visits” in the record. (R. 26). Rather
than an improper adverse inference, the court reads the ALJ’s comment as an
attempt to explain the ALJ’s position that Norris—although he might not always
be “reliable when it comes to follow up visits”— had adequate access to
healthcare. As a result, the ALJ then decided to afford no weight to the opinion of
Dr. Wilson (on this issue and in general). Id. Because the ALJ made the comment
regarding Norris’s follow up visits specifically to discredit Dr. Wilson rather than
to support an “inference about . . . symptoms and . . . functional effects from a
failure to seek or pursue regular treatment,” Titles II & XVI: Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of an Individual's
Statements, SSR 96-7P (S.S.A. July 2, 1996), the court rejects Norris’s contention
on this issue.5

5

To the extent Norris is claiming that he cannot afford the necessary medical care, the court rejects

Page 15 of 19

6. Alleged improper denial by the Appeal’s Council of Norris’s request for
review
Finally, Norris maintains that the Appeals Council “ignored” new evidence
he submitted and improperly denied his request for review. See doc. 12 at 31-40;
46-47. The new evidence includes medical records from July 24, 2012 and a letter
from Norris’s counsel to the Appeals Council dated March 11, 2013 (both of which
the Appeals Council accepted and included in the record) and medical records
from September 2012 through August 2013 (which the Appeals Council “looked
at” but excluded from the record6). (R. 2, 4-5, 924-931). With respect to the July
Norris’s argument because he fails to substantiate his position. See N.L.R.B. v. McClain of Ga., Inc., 138 F.3d at
1422; Outlaw, 197 F. App’x at 828 n.3. The court also notes that Norris’s access to medical care has no bearing on
this case because—while it is true that “poverty excuses noncompliance” with prescribed medical treatment,
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)—Norris’s compliance with prescribed medical treatment
is simply not at issue here. Indeed, Norris has been prescribed numerous medications which he takes daily, (R. 50),
and the ALJ made no comment or finding on this issue, see (R. 21-28).
6

Norris subsequently moved to supplement the record with the medical records that the Appeals Council
excluded, and to remand this case “pursuant to sentence [four] to require the Appeals Council to conduct a
meaningful review” of the evidence. Docs. 17, 18. The Appeals Council excluded the evidence in question after
finding that “this new information is about a later time” than the ALJ’s July 19, 2012 decision, which means “it does
not affect the decision about whether [Norris was] disabled beginning on or before July 19, 2014.” (R. 2). According
to Norris, the evidence “related to the relevant time period,” and describes physical and psychological symptoms
“that could bear on his condition during the relevant period.” Doc. 17 at 3; doc. 18 at 3, 5.
As a threshold matter, Norris’s contention that this court should remand the case under sentence four is
unavailing because any judgment of remand under sentence four must be “upon the pleadings and transcript of the
record.” 42 U.S.C. § 405(g). Because “[a] reviewing court is limited [to the record certified by the Commissioner] in
examining the evidence,” Cherry v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985), when, as here, the Appeals
Council did not consider the evidence, this court must treat the evidence “as if it had been first presented to the
district court and . . . evaluate[s] the case under sentence six,” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d
1253, 1268 (11th Cir. 2007) (quoting Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987) (internal quotation
marks omitted). To obtain a remand under sentence six, Norris must establish that (1) there is new, noncumulative
evidence; (2) the evidence is material; and (3) there is good cause for failure to submit the evidence at the
administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). The new evidence is “material” if it is
“relevant and probative so that there is a reasonable possibility that it would change the administrative result.” Id.
The court rejects Norris’s arguments related to the new evidence and DENIES both the motion to
supplement and the motion to remand. Aside from stating that the excluded evidence is “not necessarily
chronologically irrelevant” and “could bear on his condition during the relevant time period,” doc. 17 at 3; doc. 18 at
2-3, Norris has made no showing that the evidence in question is actually relevant or material to justify inclusion in
the record or remand, see Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[S]imply stating that an
issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our

Page 16 of 19

24, 2012 medical records, the Appeals Council “found that this information does
not provide a basis for changing the [ALJ’s] decision.” (R. 2). According to Norris,
the Appeals Council did not properly evaluate the new evidence and merely
“perfunctorily adhered” to the ALJ’s decision, which Norris contends requires this
court to remand the case. See doc. 12 at 31-40.
While Norris is generally correct that remand is justified where the Appeals
Council fails to evaluate new and material evidence and instead merely
“perfunctorily adheres” to the ALJ’s decision,” Flowers v. Comm’r of Soc. Sec.,
441 F. App’x 735, 745 (11th Cir. 2011) (citing Epps v. Harris, 624 F.2d 1267,
1273 (5th Cir.1980)), the court concludes that the Appeals Council’s statement that
the “new information does not provide a basis for changing the [ALJ’s] decision”
is sufficient to show that the Appeals Council adequately evaluated the new
evidence. After all, as this court has previously explained, “nothing requires the
considering the issue on appeal.”). Rather than making any such showing, Norris maintains that “[a]fter the
[evidence is] included in the [r]ecord, the parties will be allowed to argue whether the [evidence is] chronologically
relevant.” Doc. 17 at 5. Unfortunately, Norris overlooks that new evidence must be chronologically relevant to be
included in the record in first place, and to justify a remand under sentence six. See Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1261 (11th Cir. 2007) (“The Appeals Council must consider new, material, and
chronologically relevant evidence . . . . [Evidence] is chronologically relevant if ‘it relates to the period on or before
the date of the [ALJ] hearing decision.”) (citing 20 C.F.R. § 404.970(b)).
Ultimately, based on a careful review of the evidence, the court finds that it would not “change the
administrative outcome”—i.e., that it does not “[consist] of medical evidence that relates directly to one of
[Norris’s] principal alleged impairments, about which there was inadequate evidence presented to the ALJ.”
Caulder, 791 F.2d at 878. Rather, the evidence in large part details that Norris, after the ALJ’s decision, continued to
suffer from gout, tinea pedis, and anxiety (which the ALJ already properly considered as a severe impairments at
Step Two). Docs. 17-1, 17-2. 17-3, 17-4, 17-5, 17-6. Furthermore, the evidence outlines a new diagnosis for major
depression that Norris received in March 2013 (after the ALJ’s decision), which has no bearing on Norris’s
impairments as of the date of the decision. See docs. 17-7, 17-8. The court also notes that Dr. Tariq’s assessment of
Norris in May 2013—which Norris included as new evidence and which by Norris’s own contentions should be
afforded great weight—was “negative for . . . depression.” Doc. 17-5 at 3.

Page 17 of 19

[Appeals Council] to further explain its denial of review.” Hearn v. Colvin, No.
4:12-CV-3892-AKK, 2014 WL 4809421, at *11 (N.D. Ala. Sept. 26, 2014)
(quoting Levie v. Comm’r of Soc. Sec., 514 F. App’x 829, 832 (11th Cir. 2013)
(finding identical language sufficient)) (internal quotation marks omitted). Norris’s
reliance on Epps and various Eleventh Circuit cases citing Epps overlooks that the
Eleventh Circuit has recently clarified that “[n]othing in . . . Epps . . . requires the
Appeals Council to provide a detailed discussion of a claimant’s new evidence
when denying a request for review.” Mitchell v. Comm'r, Soc. Sec. Admin., 771
F.3d 780, 783 (11th Cir. 2014). Furthermore, Norris has made no showing that the
new evidence has a “reasonable probability” of changing the ALJ’s decision as
required to justify remand. See Flowers, 441 F. App’x 735 at 745 (quoting Hyde v.
Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (“The new evidence is material, and
thus warrants a remand, if ‘there is a reasonable possibility that the new evidence
would change the administrative outcome.’”).7 Accordingly, the court finds no
error in the Appeals Council’s consideration of the new evidence.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Norris is not disabled is supported by substantial evidence, and that the ALJ
7

The new medical evidence which the Appeals Council accepted and included in the record details a visit
on July 24, 2012 to Quality of Life where a nurse practitioner treated Norris for chronic depression and tinea pedis.
(R. 928-931). The nurse practitioner noted that Norris had full range of motion in his joints, that he exhibited no
edema in his extremities, that his neurological health seemed normal, that his psychiatric health was mostly normal
but he exhibited changeable mood and affect—although the nurse practitioner was “unsure of how honest [Norris
was] being.” Id.

Page 18 of 19

applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.

DONE the 13th day of February, 2015.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

Page 19 of 19