Ashley v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/17/2015. (AVC)

FILED
2015 Nov-17 PM 03:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
AMBER ASHLEY,

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Plaintiff,

vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Civil Action Number
4:14-cv-02237-AKK

MEMORANDUM OPINION
Amber Ashley 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
Ashley filed her application for Title II Disability Insurance Benefits and
Title XVI Supplemental Security Income on October 21, 2010, alleging a disability

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onset date of September 29, 2010, due to left hip and left leg injuries. (R. 369,
448). After the SSA denied her application, Ashley requested a hearing before an
ALJ. (R. 369). The ALJ subsequently denied Ashley’s claim, (R. 366, 383),
which became the final decision of the Commissioner when the Appeals Council
refused to grant review, (R. 1-4). Ashley then filed this action pursuant to §205(g)
of the Act on November 19, 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)).

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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 12
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). 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).

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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).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Ashley had not
engaged in substantial gainful activity since September 29, 2010, and therefore met
Step One. (R. 372). Next, the ALJ found that Ashley satisfied Step Two because
she suffered from the “severe” impairments of left posterior wall acetabular
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fracture; left femoral head impaction fracture; and left total hip arthroplasty. Id.
The ALJ then proceeded to the next step and found that Ashley did not satisfy Step
Three since she “does not have an impairment or combination of impairments that
meets or equals the severity of one of the listed impairments.” (R. 377). 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
Ashley has the residual functional capacity (RFC) to:
[P]erform sedentary work, where she can sit 1 hour at one time, stand 30
minutes at one time, and walk 30 minutes at one time. In an 8-hour work
day, [Ashley] could sit 6 hours, stand 1 hour, and walk 1 hour…occasionally
do reaching (overhead and all other types)…frequently use each hand for
handling, fingering, feeling, and push/pull movements…frequently use her
right foot and occasionally use her left foot for operation of foot
controls…never climb ladders or stairs…occasionally balance and stoop, but
should never kneel, crouch and crawl…[and] never work around unprotected
heights.
(R. 378). In light of Ashley’s RFC, the ALJ determined that Ashley “is unable to
perform any past relevant work.” (R. 381). Lastly, in Step Five, the ALJ
considered Ashley’s age, education, work experience, and RFC, and determined
“there are jobs that exist in significant numbers in the national economy that
[Ashley] can perform.” (R. 382). Therefore, the ALJ found that Ashley had “not
been under a disability, as defined in the Social Security Act, from September 29,
2010, through January 23, 2013.” (R. 383).

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V. Analysis
Ashley raises multiple contentions of error which the court will outline and
address below. None of the contentions, however, establishes that the ALJ
committed reversible error. Therefore, the court will affirm the ALJ’s decision.
1. Allegation that the ALJ’s Decision is Not Supported by Substantial
Evidence
Ashley alleges that the ALJ’s decision is not supported by substantial
evidence because the ALJ (a) only considered some of her impairments, and (b)
did not include a correct or full statement of Ashley’s limitations and impairments
in the hypothetical question to the vocational expert (“the VE”).
(a) The ALJ properly considered all of Ashley’s impairments
Ashley asserts first that the ALJ “focuse[d] on one aspect of the evidence
while disregarding other contrary evidence.” See doc. 10 at 24 (quoting McCruter
v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986)). Allegedly, the ALJ only
considered Ashley’s left posterior wall acetabular fracture, left femoral head
impaction fracture, and left hip arthroplasty impairments, and failed to consider her
migraine headaches, asthma, anxiety, and the effects of her medications. Id. The
record does not support Ashley’s contention. In fact, in addition to finding at Step
Two that Ashley had “severe” impairments based on her left posterior wall
acetabular fracture, left femoral head impaction fracture, and left total hip
arthroplasty, the ALJ also considered Ashley’s other impairments at Step Three.
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In particular, the ALJ discusses Ashley’s anxiety, migraine headaches, anemia,
asthma, and psychotropic medications. (R. 376). However, the ALJ found that
these impairments were “non-severe” and that Ashley failed to present any
evidence that she experienced adverse side effects from her psychotropic
medications. Id. 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,” such evidence is sufficient to establish that the ALJ properly
considered all of Ashley’s impairments. 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). In other words, the record belies Ashley’s contention that the ALJ failed to
consider all of her impairments.
(b) The ALJ included a correct and full statement of Ashley’s
limitations and impairments in the hypothetical question to the VE
The record also does not support Ashley’s second contention that the ALJ
relied on testimony from the VE that was not based on a correct or full statement
of her limitations and impairments. Doc. 10 at 26. Although the ALJ is required
to pose a hypothetical question to the VE that includes all of Ashley’s limitations,
see Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999), the ALJ is not required to
include findings that he has properly rejected as unsupported by the evidence, see
Crawford v. Comm’r of Soc. Sec, 363 F.3d 1155, 1161 (11th Cir. 2004). Here, the
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ALJ included all of the limitations assessed in Ashley’s RFC. See (R. 378) (stating
that in forming the limitations assessed in the RFC he “considered all symptoms
and the extent to which [each] symptom [could] reasonably be accepted as
consistent with the objective medical evidence, opinion evidence, and other
evidence based on the requirements of the regulations”); see also (R. 438-439).
Therefore, the ALJ committed no error, and his decision is supported by
substantial evidence.
2. Alleged Failure by the Appeals Council to Review, Remand and Consider
the Medical Evidence Ashley submitted after the Date of the ALJ
Decision
Next, Ashley contends that the Appeals Council erred when it failed to
review, remand her case to the ALJ, or consider new medical evidence she
submitted. Doc. 10 at 28. At issue here are approximately ten visits to different
practitioners from November 2012 to April 2014,1 the bulk of which occurred after
the ALJ issued his decision on January 23, 2013. (R. 366). Ashley asserts that the
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The new evidence includes records from: (1) Alabama Cancer Care: 4/24/13 - 8/5/13; (2) Gadsden
Regional Medical Center: 4/20/13; (3) Dr. Thomas Thomasson: 11/21/12 – 4/23/13; (4) Dr. Jarrod Warren,
Independent Medical Exam: 10/4/13; (5) Dr. Jarrod Warren, Physical Capacities Form: 10/4/13; (6) Mercy Medical
Clinic 8/16/13 – 9/6/13; (7) Riverview Regional Medical Center: 11/25/13 – 2/3/14; (8) Gadsden Regional Medical
Center: 9/22/13 – 11/20/13; (9) Alabama Cancer Care: 11/20/13 – 4/20/14; and (10) UAB Kirklin Clinic
Hematology and Oncology: 3/13/14. Doc. 10 at 28. Although Ashley has submitted evidence of submission, it is
unclear whether the Appeals Council received the records from Dr. Warren and Mercy Medical Clinic. See doc. 134.
Ashley subsequently moved to supplement the record with submissions 1-6. See doc. 13. However,
submissions 1-3 became a part of the record when the Appeals Council made Exhibits 18E and 19E part of the
record in its denial of Ashley’s request for review. See (R. 7, 569-570, 606-612). Therefore, Ashley’s Motion to
Supplement the Record, doc. 13, is DENIED, as to submissions 1-3, Exhibits A-C of the motion, because they are
already part of the record. However, as to submissions 4-6, Exhibit D of the motion, the Motion to Supplement the
record is GRANTED, and these documents are part of the record the court will consider in its review of Ashley’s
claims.

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Appeals Council did not properly evaluate the new evidence because she obtained
it after the date of the ALJ’s decision and that the Appeals Council merely
“perfunctorily adhered” to the ALJ’s decision. See doc. 14.2 Contrary to Ashley’s
contention, the Appeals Council, in fact, made the majority of the new evidence
part of the record.3 See (R. 7-8, 569-579, 606-612, 616-625). The Appeals
Council also considered the reasons why Ashley disagreed with the ALJ’s decision
and the additional evidence listed on the enclosed Order of Appeals Council, which
included the newly submitted evidence. See (R. 1-8, 569-579, 606-612, 616-625).
Upon review, the Appeals Council explained that “this information does not
provide a basis for changing the Administrative Law Judge’s decision.” (R. 1-2).
While Ashley may disagree with the Appeals Council decision, this
disagreement does not mean that the Appeals Council failed to consider her new
evidence. In fact, the Appeals Council stated unequivocally that it “considered”
and “looked at” the new submissions and determined that the new information
covered a later time and did not affect the decision about whether Ashley was
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Ashley also moved to remand the case “under either Sentence 4 or Sentence 6 because the Appeals
Council failed to include chronologically relevant submissions in the record because they are dated after the date of
denial by the ALJ.” Doc. 14 at 1. The Motion to Remand is DENIED because Ashley’s contention that the
Appeals Council failed to include the new submissions in the record because they are dated after the date of the ALJ
decision is without merit.
Of the new submissions to the Appeals Council, submissions 1-3 and 7-10 were made part of the record by
the Appeals Council as Exhibits 18E and 19E, see (R. 7, 569-570, 606-612), 21E, 22E, 23E, and 24E, see (R. 7-8,
616-625), respectively, even though they are dated after the date of the ALJ decision. Accordingly, Ashley’s
contention that submissions 4-6 were not included in the record solely because they were dated after the date of the
ALJ decision is without merit because submissions 1-3 and 7-10, which are also dated after the ALJ’s decision, were
included in the record.
3

Submissions 4-6 were not made part of the record by the appeals council, but by this court.

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disabled beginning on or before January 23, 2013. (R. 1-2). This fact, plus the
Appeals Councils decision to add the new evidence to the record, is sufficient to
show that the Appeals Council adequately evaluated the new evidence. See id.
3. Allegation that the Denial of Benefits is Not Supported by Substantial
Evidence when the Evidence Submitted to the Appeals Council is
Considered
Ashley next contends that the denial of benefits is not supported by
substantial evidence when the evidence she submitted to the Appeals Council is
considered. Doc. 10 at 39. When a claimant properly submits additional evidence
to the Appeals Council, a reviewing court must consider the entire record to
determine whether the denial of benefits was substantially erroneous. 4 Ingram v.
Comm’r of Soc. Sec., 496 F.3d 1253, 1262 (11th Cir. 2007). Therefore, “[b]ecause
[Ashley] properly presented evidence to the Appeals Council, which actually
considered it, the said new evidence forms part of the administrative record.” See
Sevarit v. Colvin, 989 F. Supp. 2d 1210, 1218 (N.D. Ala. 2013) (citing Ingram, 496
F.3d at 1269; (R. 1-8). Consequently, this court must consider whether the great
weight of the evidence as a whole, including the new evidence presented to the
Appeals Council, supported the ALJ’s decision. See Ingram 496 F.3d at 1266–67
(remanding to the district court to determine whether the Appeals Council correctly
found the ALJ’s decision was not contrary to the weight of the evidence).

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The court considers submissions 4-6 in its review.

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To support her contention of error, Ashley seemingly points specifically to
evidence from Dr. Janie Teschner, a treating physician she saw at Mercy Medical
Clinic, and Dr. Jarrod Warren, a doctor who performed an independent medical
evaluation. Doc. 10 at 40. While acknowledging that she visited both doctors after
the ALJ’s decision, Ashley argues that “a treating physician’s opinion is still
entitled to significant weight notwithstanding that he did not treat the claimant
until after the relevant determination date.” Id. (citing Boyd v. Heckler, 704 F.2d
1207 (11th Cir. 1983)). Although Ashley is correct, she overlooks that Dr.
Teschner’s evidence, doc. 13-4 at 4-5, adds nothing new to the record for
consideration. See id. (Dr. Teschner’s diagnosis of existing left hip pain, anemia,
respiratory problems, and other impairments, all of which the ALJ considered at
Steps Two and Three). Next, as for Dr. Warren, he opined that Ashely had the
physical capacity to sit for one hour at a time; stand for less than 30 minutes at a
time; walk for less than 30 minutes at a time; and could lie down, sleep, or sit with
her legs propped at waist level or above due to her medical conditions for 1-2
hours in an 8-hour daytime period. Doc. 13-4 at 4. Consequently, Ashley
contends that the slightly stricter limitations Dr. Warren imposed establish that the
ALJ’s denial of disability and the RFC are not supported by substantial evidence.
See id. at 4, 12-17; (R. 378). Unfortunately for Ashley, the opinion of a one-time
examiner, like Dr. Warren, is not entitled to any special deference or consideration.
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See 20 C.F.R. §§404.1502, 404.1527(c)(2); Crawford, 363 F.3d at 1160 (11th Cir.
2004); see also Denomme v. Comm’r of Soc. Sec., 518 F.App’x 875, 877 (11th Cir.
2013) (holding ALJ does not have to defer to opinion of doctor who conducted
single examination and who was not a treating doctor). Therefore, the ALJ did not
err in rejecting Dr. Warren’s opinion, especially since it is contrary to the great
weight of the evidence. See Doc. 13-4 at 3-4, 11-17; see also (R. 378-381) (the
preponderance of evidence, including reports from examining and treating
physicians, as well as Ashley’s admitted activities of daily living, do not support
the degree of disabling pain and limitations presently asserted by Dr. Warren).
Ultimately, contrary to Ashley’s contention, the new evidence does not
contradict or indicate that any of her impairments are incapacitating or cause more
than minimal functional limitations. To the contrary, the ALJ found that there was
no evidence that Ashley’s “non-severe impairments” caused more than minimal
functional limitations or restrictions on her ability to perform basic work activities.
(R. 376). Likewise, the new evidence does not rebut the ALJ’s finding that the
“severe” impairments concerning Ashley’s left hip and left leg, rendered Ashley
unlikely to do any type of standing job, (R. 380), but left open the possibility for
jobs that require sitting. In fact, the ALJ’s findings are consistent with the records
of one of Ashley’s treating physicians, Dr. Thomasson, who treated Ashley both
before and after the ALJ decision, and opined that while it was unlikely Ashley
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could do a standing type job, she could possibly perform a job that required her to
sit. See (R. 380); see also Boyd, 704 F.2d at 1207 (ALJ should give opinion of
treating physician significant weight absent good cause). Therefore, the court finds
that the evidence on the record at the time of review by the ALJ, as well as now,
does not reveal any opinions from medical experts or any other type of medical or
psychological consultants which indicate that Ashley’s impairments, alone or in
combination, meet or equal a listing. Accordingly, the denial of benefits is still
supported by substantial evidence when the new evidence is considered.
4. Alleged Failure of the ALJ to Consider Ashley’s Combination of
Impairments in Determining Disability
Finally, Ashley contends that the ALJ failed to consider the combined
effects of her impairments. Doc. 10 at 40. However, because Ashley only raises
this issue perfunctorily, the court cannot discern what record evidence Ashley is
relying on to support her contention. See id. at 40-45. Rather than discussing how
the ALJ failed to consider the combined effects of her impairments, Ashley simply
notes that “the record clearly indicates that [she suffers] from a combination of
impairments….” Id. at 45. The court disagrees because the ALJ clearly
considered all of Ashley’s impairments (whether severe or not), (R. 372-377), and
determined that Ashley did not have an “impairment or combination of
impairments, which meets or equals the criteria of any of the listed impairments
described in [the Regulations],” (R. 377). See Jones v. Dep’t. of Health & Human
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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). Therefore, this contention is unavailing.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Ashley is not disabled is supported by substantial evidence, and the ALJ
applied the correct legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED.
DONE the 17th day of November, 2015.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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