Chandler v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/30/2016. (KEK)
2016 Sep-30 AM 11:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social Security,
Case No. 4:15-cv-00508-JHE
Plaintiff Darlene Chandler seeks review, pursuant to 42 U.S.C. § 405(g), § 205(g) of the
Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her application for Supplemental Security Income
(“SSI”) and Disability Insurance Benefits (“DIB”). (Doc. 1). During the pendency of this
action, Chandler filed two motions for remand.2 (Docs. 15, 22). The latest motion invokes
Sentence Six of 42 U.S.C. § 405(g) for consideration of a subsequent favorable decision by the
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 18).
Chandler’s first motion to remand does not specify whether it seeks remand under
sentence four or sentence six. (See Doc. 15). Upon review, the court finds the submission is
redundant of arguments previously asserted in Chandler’s brief and it purports to summarize Dr.
Herrera’s medical records. (Doc. 15). As such, it does not clearly invoke sentence six. To the
extent the motion can be construed as seeking remand under sentence four, it is DENIED,
consistent with the rationale discussed in this court’s finding that the ALJ’s decision is supported
by substantial evidence. Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996) (To remand
under sentence four, the “court must either find that the decision is not supported by substantial
evidence, or that the Commissioner (or the ALJ) incorrectly applied the law relevant to the
Commissioner. Chandler timely pursued and exhausted his administrative remedies. This case is
therefore ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). Having carefully considered the
record, the motions to remand (docs. 15, 22) are DENIED and for the reasons stated below, the
Commissioner’s decision to deny benefits is AFFIRMED.
I. MOTION TO REMAND
Only two types of remand are contemplated under 42 U.S.C § 405(g) and they are
commonly denominated as “sentence four” or “sentence six” remands.
See Melkonyan v.
Sullivan, 501 U.S. 89, 99–100 (1991) (Congress’ explicit delineation in § 405(g) regarding the
circumstances under which remands are authorized leads us to conclude that it intended to limit
the district court’s authority to enter remand orders to these two types.”). To remand under
sentence four, the “court must either find that the decision is not supported by substantial
evidence, or that the Commissioner (or the ALJ) incorrectly applied the law relevant to the
disability claim.” Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996). Under sentence six,
“the district court may remand in light of additional evidence without making any substantive
ruling as to the correctness of the Secretary’s decision, but only if the claimant shows good cause
for failing to present the evidence earlier.” Melkonyan, 501 U.S. at 99-100.
In her most recent motion to remand, Chandler expressly proceeds under sentence six.
(Doc. 22). She seeks remand for consideration of a subsequent favorable decision determining
her disabled as of November 15, 2013. (Doc. 22 at 1). Additionally, she relies on medical
records from her treating physician, Dr. Herrera, to justify remand. (Doc. 22 at 2). To prevail on
a motion to remand under sentence six, Chandler must prove “(1) there is new, non-cumulative
evidence, (2) the evidence is ‘material’, that is, relevant and probative so that there is a
reasonable probability that it would change the administrative result, and (3) that there is good
cause for the failure to submit the evidence at the administrative level.” Culpepper v. Colvin,
2014 WL 3889800, at *5 (N.D.Ala. 2014) (citing Keeton v. Dep’t Health & Human Services, 21
F.3d 1064, 1067; Caulder v. Bowen, 791 F.2d 872, 877).
With a subsequent favorable decision in hand, it might appear Chandler meets some of
the requirements for sentence six remand. The September 12, 2016 decision finding her disabled
is new, “in the sense that it did not exist” on November 4, 2013, the date when the ALJ decided
the case challenged here. See Moland v. Astrue, 2012 WL 4815472, at *2 (N.D. Ala. 2012).
And, because the subsequent decision did not exist at the time of those 2013 administrative
proceedings, good cause is evident. See id. Notwithstanding good cause and the newness of the
decision, the subsequent decision cannot, on its own, justify remand under sentence six. That is
because the decision is not evidence.
In Hunter v. Social Security Administration,
Commissioner, 808 F.3d 818 (11th Cir. 2015), the Eleventh Circuit rejected the notion a
subsequent favorable decision, standing alone, would automatically trigger sentence six remand.
Declaring “a decision is not evidence any more than evidence is a decision,” the Court held a
“later favorable decision is not evidence for § 405(g) purposes.” Id. at 822. In reaching this
holding, the Court reasoned:
In light of our deferential review, there is no inconsistency in finding that two
successive ALJ decisions are supported by substantial evidence even when those
decisions reach opposing conclusions. Faced with the same record, different ALJs
could disagree with one another based on their respective credibility
determinations and how each weighs the evidence. Both decisions could
nonetheless be supported by evidence that reasonable minds would accept as
adequate. Because of that possibility, the mere existence of a later favorable
decision by one ALJ does not undermine the validity of another ALJ’s earlier
unfavorable decision or the factfindings upon which it was premised.
Id. (internal citations omitted).
Because a later decision is not evidence for § 405(g) purposes,1 Chandler’s motion to
remand cannot rest solely on her favorable determination. Understanding as much, Chandler
relies “on the medical records of Dr. Herrera submitted on appeal to the Appeals Council” in
addition to her subsequent decision. (Doc. 22 at 2). Her reliance is misplaced. This is so
because to justify a sentence six remand, Dr. Herrera’s medical records must qualify as new
evidence and records previously submitted to the Appeals Council are not “new.”
In her remand motion, Chandler acknowledges Dr. Herrera’s records were submitted to
the Appeals Council and the Appeals Council explicitly states it “considered . . . the additional
evidence listed on the enclosed Order of Appeals Council,” (tr. 1), which included “Medical
Record from Dr. P. Herrera, dated 9/19/12-7/18/13” and “Medical Record from Dr. P. Herrera,
dated 1/3/14.” (Tr. 6)
(Doc. 22 at 2).
As such, the records are not new, or previously
unavailable, and remand under sentence six cannot issue. “Sentence six allows the district court
to remand to the Commissioner to consider previously unavailable evidence; it does not grant a
district court the power to remand for reconsideration of evidence previously considered by the
Appeals Council.” Ingram v.Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007).
As discussed below, substantial evidence supports the ALJ’s decision to deny benefits in
this case. And there is no indication that consideration of Dr. Herrera’s treatment records, which
detail improvement of her blood pressure, weight loss, and examination findings within normal
limits, would have changed the ALJ’s decision. (Tr. 411-421). Moreover, in reaching its
decision the ALJ did consider the results of certain tests Dr. Herrera ordered. (Tr. 371-372).
Because the subsequent decision awarding Chandler benefits has little likelihood of changing the
administrative result on the first claim, it is immaterial. As the Eleventh Circuit has recognized,
“[f]aced with the same record, different ALJs could disagree with one another based on their
respective credibility determinations and how each weighs the evidence . . . [thus] the mere
existence of a later favorable decision by one ALJ does not undermine the validity of another
ALJ’s earlier unfavorable decision or the factfindings upon which it was premised.” Hunter, 808
F.3d at 822. Accordingly, Chandler’s motion to remand pursuant to sentence six is DENIED.
REVIEW OF THE ADMINISTRATIVE DECISION
Factual and Procedural History
Chandler filed her application for SSI and DIB on December 13, 2011, alleging she
became unable to work beginning March 28, 2011. (Tr. 22). She was a fifty-three years old
female on the date the Administrative Law Judge (“ALJ”) issued his decision, and she has at
least a high school education. (Tr. at 32). Her past work experience include employment as a
delivery driver and a waitress. (Id.). The Agency initially denied Chandler’s application, and
she requested a hearing where she appeared in August 2013. (Tr. 40-62 & 89-90). After the
hearing, the ALJ denied Chandler’s claim on November 4, 2013. (Tr. 19-37). Chandler sought
review by the Appeals Council, but, despite considering her new evidence, it declined her
request on January 30, 2015. (Tr. 1-6). On that date, the ALJ’s decision became the final
decision of the Commissioner. On March 27, 2015, Chandler initiated this action. (See doc. 1).
Standard of Review3
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
In general, the legal standards applied are the same whether a claimant seeks DIB or
Supplemental Security Income (“SSI”). However, separate, parallel statutes and regulations
exist for DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to
the appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This Court
must “scrutinize the record as a whole to determine if the decision reached is reasonable and
supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.”
This Court must uphold factual findings 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 the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
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.
abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has
satisfied steps One and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.”
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show such work exists in the national economy in significant
Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Chandler meets the insured status requirements of the Social
Security Act through September 30, 2016, and that Chandler had not engaged in substantial
gainful activity since her alleged onset date of March 28, 2011. (Tr. 24). At Step Two, the ALJ
found Chandler has the following severe impairments: obesity, hypertension, anxiety,
depression. (Id.). At Step Three, the ALJ found Chandler did not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 26-27).
Before proceeding to Step Four, the ALJ determined Chandler’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R.
§ 404.1545(a)(1). The ALJ determined Chandler has the following RFC:
The claimant can lift or carry twenty pounds occasionally and ten pounds
frequently, can sit up to six hours in an eight-hour day, and can stand or walk up
to six hours in an eight-hour day. The claimant can occasionally climb ramps or
stairs, balance, stoop, kneel, crouch, or crawl. The claimant is not able to climb
ladders, ropes, or scaffolds or reach overhead with either upper extremity. The
claimant is not able to perform around work hazards or in concentrated exposure
to temperature extremes, either hot or cold. The claimant is able to understand and
remember simple and detailed but not complex instructions. The claimant is able
to sustain attention or concentration for two-hour periods to complete simple or
detailed tasks during the regular work day at an acceptable pace and attendance
schedule. The claimant is able to respond to at least simple and infrequent
changes in the work routine.
(Tr. 27.) At Step Four, the ALJ determined Chandler is unable to perform any past relevant
work. (Tr. 32). At Step Five, the ALJ determined, based on Chandler’s age, education, work
experience, and RFC, jobs exist in significant numbers in the national economy Walker could
perform. (Id.). Therefore, the ALJ determined Walker has not been under a disability and
denied his claim. (Tr. 33).
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his does not relieve
the court of its responsibility to scrutinize the record in its entirety to ascertain whether
substantial evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)).
The court, however, “abstains from reweighing the evidence or substituting its own judgment for
that of the [Commissioner].” Id. (citation omitted).
Here, substantial evidence supports the ALJ’s determination Chandler failed to
demonstrate a disability, and the ALJ applied the proper standards to reach this conclusion.
Chandler alleges the ALJ’s decision should be reversed and remanded for four reasons. First,
she alleges the ALJ failed to properly develop the record by failing to include the records of Dr.
Pascual Herrera. Second, she alleges the RFC is conclusory and not based on substantial
evidence because the record contains no Physical Capacity Evaluation (“PCE”) and no
Psychiatric Review Technique (“PRT”). Third, she contends the ALJ failed to state adequate
reasons for not finding her credible. Fourth, she argues the Appeals Council failed to review the
submissions, did not mention the submissions in the denial, and refused to remand the claim to
consider the submissions; therefore, the decision was not based on substantial evidence when the
new evidence is considered. None of these reasons justifies remand.
A. The ALJ did not fail to develop a full and fair record by not including and
considering Dr. Herrera’s records and PCE.
It is true “the ALJ has a basic duty to develop a full and fair record.” Ellison v. Bernhart,
355 F.3d 1272, 1276 (11th Cir. 2003). The plaintiff, however, is the party who bears the burden
of providing evidence to support her claim and to provide updated evidence if it is necessary.
See id. The ALJ does not have a duty to review evidence not before him, Robinson v. Astrue 365
F. App’x 993, 996 (11th Cir. 2010), particularly where the plaintiff was on notice of the need to
submit the evidence and failed to do so, see Byrd v. Colvin, No. CV 113-219, 2014 WL 7405467,
at *4 (S.D. Ga. Dec. 30, 2014) (finding ALJ did not violate the duty to develop the record where
the ALJ gave the plaintiff additional time after the hearing to submit specific evidence and the
plaintiff’s attorney failed to do so).
Chandler argues the ALJ should have included and considered Dr. Herrera’s treatment
records and PCE before rendering a decision. (Doc. 10 at 13). However, the ALJ was certainly
not in error for failing to consider Dr. Herrera’s PCE, conducted in January of 2014, when the
ALJ’s decision was rendered in November of 2013. See Robinson, 365 F. App’x at 996. Nor
was the ALJ in error for failing to include Dr. Herrera’s treatment records because Chandler’s
counsel knew the records had not been received at the time of the ALJ’s hearing and failed to
submit them during the week the ALJ held the record open for submission of the evidence.
(Tr. 31, 40-42, & 61). Chandler did not submit the records until February 2014, with her new
counsel’s request for review by the Appeals Council. (Tr. 6 (making the evidence part of the
record), 223-27 (in which Chandler’s letter to the Appeals Council refers to Herrera’s records as
The ALJ did not violate his duty to develop the record under these
B. The ALJ’s decision was based on substantial evidence at the time it was made.
Chandler contends the ALJ’s opinion is not based on substantial evidence because the
ALJ did not properly discuss each of his RFC conclusions in violation of S.S.R. 96-8p and the
record does not contain a PCE and PRT. (Doc. 10 at 14-22). Chandler’s argument consists
almost entirely of extensive quotes from S.S.R. 96-8p regarding the need for a narrative
discussion supporting each conclusion, for a discussion of the claimant’s ability to perform
sustained work activities, and for a function-by-function analysis of the claimant’s capabilities.5
Chandler also briefly mentions S.S.R. 96-8p’s requirement that,
(Id. at 14-16). The extent of the accompanying “analysis” is merely a summation of the legal
framework and the implied conclusion the ALJ’s decision violates it. (Id. at 16). Chandler then
goes on to state the ALJ did not include a PRT or a PCE and sets out, through a series of
extensive block quotes, the split of authority on whether the functional capacity evaluation must
be performed by a physician. (Id. at 16-20). She does not say on which side of the divide this
Court should come down on this issue. (Id. at 20). Lastly, Chandler states her case is like
Walker v. Bowen, 826 F.2d 996 (11th Cir. 1987), and block quotes a page and a half worth of the
case, without explaining exactly how her case is like Walker. (Id. at 20-22).
Beginning at the end of Chandler’s argument, it is unclear how the Walker case is
relevant. The block quote from that case addresses the ALJ’s failure to discuss the weight he
gave each of the medical reports, his failure to show good cause for rejecting a treating
physician’s opinion, and his failure to consider the claimant’s impairments in combination.
(Doc. 10 at 21) (citing Walker v. Bowen, 826 F.2d at 1000-02). Chandler does not raise any of
Second, assuming for purposes of this analysis an RFC must be based on a physician’s
functional capacity evaluation, the record, in fact, contains a PCE from Dr. Heilpern who
reviewed the consultative examinations and the records from Quality of Life Health Services.
(Tr. 70-72). He found Chandler was capable of performing the demands of light work with
occasional postural maneuvers, no overhead reaching, and no exposure to unprotected heights or
[w]hen there is no allegation of a physical or mental limitation or restriction of a specific
functional capacity, and no information in the case record that there is such a limitation or
restriction, the adjudicator must consider the individual to have no limitation or
restriction with respect to that functional capacity.
It is unclear how this helps Chandler’s argument, and she does not provide any further analysis
of the issue other than to say conclusorily that the ALJ “failed to follow SSR 96-8p in finding
that the claimant has minor physical limitations,” (doc. 10 at 15).
hazardous machinery, or concentrated exposures to extreme temperatures. (Tr. 71). Further, the
record also contains a PRT from Dr. Dobbs, a state agency psychologist, who reviewed
Chandler’s records and determined he had only mild to moderate limitations in the four broad
functional areas. (Tr. 67-68). Even though these doctors may not have physically examined
Chandler, they are still considered experts within the meaning of the applicable regulation,
20 C.F.R. 404.1527(e)(2); 416.927(e)(2)(i), and the ALJ is entitled to rely on their opinions
where they are not inconsistent with the treating and examining physicians’ clinical findings,
Flowers v. Comm’r of Soc. Sec., 441 F. App’x 735, 742 (11th Cir. 2011) (citing Edwards v.
Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991) (finding the ALJ did not err when relying on a
nonexamining physician’s opinion where the underlying examining physicians’ reports did not
speak to the limitations imposed by the claimant’s conditions)). The ALJ reviewed Dr. Heilpern
and Dr. Dobbs’s opinions and, finding them consistent with the medical evidence as a whole,
afforded them significant weight. (Tr. 30-31).
Lastly, it is unclear exactly why Chandler believes the ALJ did not include a narrative
discussion of the evidence and the reasons for his conclusions. The ALJ’s opinion gives a
summary of the medical evidence regarding Chandler’s physical and mental condition,
(tr. 28-30); addressed the effect of her obesity on the RFC, (tr. 30); addressed the weight given to
the various medical opinions, (tr. 31); and explained how the RFC was molded to accommodate
the previously described physical and mental conditions, (tr. 31-32). Chandler does not point to
any evidence in the record to contradict the consultative physicians’ opinions regarding her
capabilities in the various functional domains, and the evidence before the ALJ, at least, appears
to support their conclusions. The contention, therefore, that the ALJ did not base his RFC
findings on substantial evidence is not supported by the record and, contrary to Chandler’s
assertions, show that the ALJ relied on substantial evidence in determining Chandler’s RFC.
C. The ALJ stated adequate reasons for finding Chandler not credible.
Chandler also contends that the ALJ failed to state adequate reasons for finding her
subjective testimony not credible. (Doc. 10 at 29). Her argument begins by explaining a Fourth
Circuit court had rejected an ALJ’s boilerplate language finding a claimant’s statements “not
credible to the extent they [were] inconsistent with the [included] residual functional capacity
assessment” because “this language ‘gets things backwards’ by implying ‘that ability to work is
determined fist [sic] and is then used to determine the claimant’s credibility.” (Doc. 10 at 22-23)
(quoting Mascio v. Colvin, 780 F.3d 632, 639 (4th Cir. 2015) (quoting Bjornson v. Astrue, 671
F.3d 640, 644-45 (7th Cir. 2012)). Without any further discussion (and without even quoting or
citing the language she is challenging in the ALJ’s opinion), she quotes three pages worth of her
own testimony from the ALJ’s hearing about her limitations. (Doc. 10 at 23-26). She then
concludes with the unanalyzed statement “[t]he ‘reasons’ set out in the body of the decision by
the ALJ are not adequate reasons for finding claimant not credible.’” (Id. at 26). Lastly, she
noted the vocational expert’s opinion that, if her testimony were credible, there would be no jobs
she could perform. (Id.).
The problem with this entire analysis is there is no analysis. First, the Fourth and
Seventh Circuit’s problem with the language in those cases’ ALJ opinions was premised on the
fact it apparently compared the claimants’ statements to the RFC instead of the medical
evidence. See Mascio v. Colvin, 780 F.3d 632, 639 (4th Cir. 2015) (“Thus, the ALJ here should
have compared [the claimant]’s alleged functional limitations from pain to the other evidence in
the record, not to [the claimant]’s residual functional capacity.”). However, the similar language
here Chandler is apparently challenging does not include the offending phrase and, instead,
specifically states Chandler’s statements are “not entirely credible for the reasons explained in
this decision.” (Tr. 29). To the extent simply citing the Mascio case could be considered an
argument, it is unpersuasive.
Second, although Chandler’s argument regarding the ALJ’s reasons is, at most, a factual
statement and conclusion devoid of analysis, the Court still must address whether substantial
evidence supports the ALJ’s reasons for discrediting her testimony. See Walden, 672 F.2d at
When evaluating the credibility of a claimant’s statements regarding the intensity,
persistence, or limiting effects of her symptoms, the ALJ considers all evidence, objective and
subjective. See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p, 1996 WL 364186 at * 4-5. The
ALJ may consider the nature of a claimant’s symptoms, the effectiveness of medication, a
claimant’s method of treatment, a claimant’s activities, and any conflicts between a claimant’s
statements and the rest of the evidence. See 20 C.F.R. §§ 404.1529(c)(3), (4), 416.929(c)(3), (4);
SSR 96-7p, 1996 WL 364186 at * 4-8. If an ALJ discredits a claimant’s subjective complaints,
“he must articulate explicit and adequate reasons for doing so.” Wilson v. Comm’r of Soc. Sec.,
284 F.3d 1219, 1225 (11th Cir. 2002). “[I]f a credibility determination is inadequate, a remand
to the agency for further consideration is the proper remedy.” Carpenter v. Astrue, No. 8:10CV-290-T-TGW, 2011 WL 767652 (M.D. Fla. Feb. 25, 2011). See also Lawton v. Comm’r of
Soc. Sec., 431 F. App’x 830, 835 (11th Cir. 2011) (retreating from MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986), based on the prior precedent rule, and remanding to the
The ALJ relied on the medical records and the consultative examinations in finding
Chandler’s reports of extensive physical and mental limitations were not entirely credible.
Specifically, the ALJ noted the medical treatment notes showed that, shortly after her alleged
onset of disability, she had not been taking her previously prescribed blood pressure medicine for
five years, and subsequent visits indicated that, though her blood pressure remained elevated, her
hypertension was largely asymptomatic. (Tr. 29). Dr. Henry Born’s consultative physical
examination found mild hypertension; a slow gait favoring her left knee; reduced range of
motion in her dorsolumbar spine and knees and tenderness in her right elbow, left knee, and
back. (Id.). Finding it consistent with the medical evidence, the ALJ gave significant weight to
Dr. Robert Heilpern’s PCE opinion Chandler could sit about six hours in an eight-hour day,
stand or walk about six hours in an eight-hour day, lift twenty pounds occasionally and ten
pounds frequently, occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl
but not climb ladders, ropes, or scaffolds or reach overhead. (Tr. 30).
Regarding her mental impairments, the ALJ noted the medical records showed only two
visits, in 2009 and 2011, for depression and anxiety, resulting in prescriptions for Zoloft,
Desyrel, and Vistaril. (Id.). In her March 2012 consultative mental examinations, she reported
prior mental treatment but “not within the last year” and that she was still taking Zoloft. (Tr. 30).
Dr. David Wilson opined she might have difficulty working but with medication and therapy
could do so. (Tr. 346).6 The ALJ gave significant weight to Dr. Steven Dobbs’s PRT opinion
Chandler had only mild limitations in activities of daily living and social functioning; moderate
limitations in maintaining concentration, persistence, or pace; and no episode of
decompensation; and could understand and remember instructions, sustain attention for two-hour
periods, and respond to simple and infrequent changes in routine. (Tr. 30 & 31).
The ALJ explicitly acknowledged considering this opinion regarding Chandler’s
difficulties working but gave it little weight to the extent it could be construed as an opinion on
the issue reserved to the Commissioner regarding whether Chandler was able to work. (Tr. 31)
(citing 20 C.F.R. §§ 404.1527(e), 416.927(e)).
Relying on the two consultative physical and mental assessments, the ALJ took these
physical and mental limitations into account when establishing the RFC. (Tr. 31). Although the
opinions of nonexamining physicians cannot alone establish substantial evidence for an
administrative decision, they can contribute to such evidence when, as here, they do not
contradict the opinions of examining or treating physicians. See Broughton v. Heckler, 776 F.2d
960, 962 (11th Cir. 1985).7
D. The Appeals Council considered Chandler’s additional evidence, and, even in
light of that new evidence, the ALJ’s decision is not contrary to the weight of the
Chandler also contends the Appeals Council failed to adequately consider her new
evidence and failed to give a proper explanation of its denial of review of the submission.
(Doc. 10 at 26-34). She further contends the new evidence is material and chronologically
relevant and that, when the new evidence is considered, the decision of the ALJ is no longer
supported by substantial evidence. (Id. at 34-36).
Chandler cites Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Bowen v. Heckler, 748
F.2d 629 (11th Cir. 1984); and Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780 (11th Cir.
2014), for the proposition the Appeals Council must articulate reasons for denying review.
(Doc. 10 at 28). However, as explicitly explained in Mitchell, “the Appeals Council is not
required to explain its rationale when denying a request for review.” 771 F.3d at 785; accord
Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847, 852 (11th Cir. 2015) (“[T]he
Appeals Council is not required to make specific findings of fact when it denies review.”). “It
need only ‘consider the additional evidence’ that is new, material, and chronologically relevant.”
The question of whether there is still substantial evidence supporting the ALJ’s decision
when the additional evidence from Dr. Herrera is considered is addressed below.
Parks, 783 F.3d at 852 (citing 20 C.F.R. § 416.1470(b)).8 Moreover, when the Appeals Council
states it has considered the new evidence and there is nothing else to suggest the Appeals
Council did not properly consider it, there is no basis to second-guess the Appeals Council.
Mitchell, 771 F.3d at 783; Parks, 783 F.3d at 853. However, even when there is no other
evidence in the record to suggest the Appeals Council did not properly consider the new
evidence, “a reviewing court must consider whether that new evidence renders the denial of
benefits erroneous.” See Mitchell, 771 F.3d at 785 (citing Ingram v. Commissioner of Social
Security, 496 F.3d 1253, 1262 (11th Cir. 2007)). If the ALJ’s decision is “‘contrary to the
weight of the evidence currently of record,’” the Appeals Council’s failure to review constitutes
an error of law requiring remand.
See Ingram, 496 F.3d at 1261 (quoting 20 C.F.R.
Because the Appeals Council explicitly stated that it “considered . . . the additional
evidence listed on the enclosed Order of Appeals Council,” (tr. 1), which included “Medical
Record from Dr. P. Herrera, dated 9/19/12-7/18/13” and “Medical Record from Dr. P. Herrera,
dated 1/3/14,” (tr. 6), it was not required to provide more and did not err by failing to articulate
reasons for denying review. The question is whether the Appeals Council’s decision to deny
As further explained in Mitchell and Parks, the Epps and Bowen cases do not require
the Appeals Council to provide a detailed rationale for denying review on new evidence because
the Epps court was in a different procedural posture, addressing the Appeals Council’s failure to
adequately evaluate the evidence before affirming the ALJ’s decision (after having already
granted review), and the Bowen case only requires the Appeals Council to apply the correct legal
standards in performing its duties. See Mitchell, 771 F.3d at 783-84; Parks, 783 F.3d at 853.
Moreover, in both Epps and Bowen, there were indications on the record the Appeals Council
had erred. See Mitchell, 771 F.3d at 783-84 (explaining that, in Epps, the ALJ’s decision was
based on the fact there was none of the particular type of evidence that was submitted to the
Appeals Council and that, in Bowen, the ALJ had erred and the Appeals Council had adopted the
error without explanation, indicating in both cases that the Appeals Council had merely
“perfunctorily adhered” to the ALJ’s decision).
review was in error because the new evidence made the ALJ’s decision contrary to the weight of
the current evidence.9
Chandler’s additional evidence consists of Dr. Herrera’s treatment records and a PCE he
prepared. (Tr. 411-26). A treating physician’s opinion is generally given controlling weight
unless it is not supported by objective medical evidence or is merely conclusory. Robinson v.
Astrue, 365 F. App’x 993, 996 (11th Cir. 2010) (citing Johns v. Bowen, 821 F.2d 551, 555 (11th
Cir. 1987)). Even where the Appeals Council does not state its reasons for denying review in the
face of a treating physician’s opinion, the reviewing court makes this determination de novo to
determine whether the Appeals Council could properly have denied review. See, e.g., id. at 997
(“[T]he Appeals Council was free to discount the treating physician’s opinion concerning
Robinson’s walking limitation because that opinion was inconsistent with the physician’s other
assessments and with other substantial evidence.”); Burgin v. Comm’r of Soc. Sec., 420 F. App’x
901, 903 (11th Cir. 2011) (“The [Appeals Council] was free to give little weight to the
conclusory assertions contained in the questionnaires because they merely consisted of items
checked on a survey, with no supporting explanations.”). Because this Court’s review of this
evidence is de novo, the Appeals Council will not be found to have erred if the treatment records
would not change the ALJ’s decision and there was good cause to discount Herrera’s PCE. See
Ingram, 496 F.3d at 1262 (“[W]hen a claimant properly presents new evidence to the Appeals
Council, a reviewing court must consider whether that new evidence renders the denial of
benefits erroneous.”); Mansfield v. Astrue, 395 F. App’x 528, 530-31 (11th Cir. 2010) (“The
This is not the same as the determination of whether to consider the evidence, which
requires a determination of whether the evidence is (1) new, (2) material, and (3) chronologically
relevant, Ingram, 496 F.3d at 1261. The Appeals Council already acknowledged the evidence is
new, material, and relevant when it “considered . . . the additional evidence,” (tr. 1), before
subsequently determining whether to grant review based on that evidence, (tr. 2).
district court did not err in determining that the additional evidence Mansfield submitted would
not have changed the outcome of the ALJ’s decision.”).
First, Dr. Herrera’s treatment records detail improvement in Chandler’s blood pressure
after beginning her treatment, only conservative treatment of moderate pain, loss of weight, and
examination findings “within normal limits.” (Tr. 411-421). Similarly, the tests Dr. Herrera had
done on Chandler’s neck and shoulder showed only mild abnormalities. Specifically, the neck
MRI showed only “minimal disc protrusion at C3-C4 and C5-C6 levels slightly effacing the
thecal sac but no significant stenosis or cord encroachment” and “very minimal broad base disc
bulge at the C4-C5 level” with no stenosis found, (tr. 422), and the left-shoulder MRI showed
joint degeneration that “mildly encroaches the underlying soft tissue structures” with “no rotator
cuff tear or other significant abnormality,” (tr. 423). Moreover, these tests were in the original
medical records the ALJ considered for his opinion. (Tr. 371-72). There is nothing to indicate
the treatment records would have changed the ALJ’s decision.
Similarly, the PCE submitted is merely a questionnaire in which Dr. Herrera submitted
his conclusory opinions by way of circles and checkmarks in response to often leading questions.
(Tr. 426). He does not cite to medical findings or other objective evidence to support those
opinions or the proposed limitations.
Moreover, his own treatment notes indicate
Chandler’s neck and shoulder conditions were mild and treated conservatively, treatment
improved her blood pressure issues, and her physical examinations were otherwise within normal
limits. (Tr. 411-21). The Appeals Council was within its rights to discount Dr. Herrera’s
questionnaire and rely on the evidence already before the ALJ. Therefore, the new evidence
does not render the ALJ’s previous decision erroneous, and the Appeals Council did not err by
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, the decision of the Commissioner of Social Security
denying Chandler’s claim for SSI and DIB is AFFIRMED and this action is DISMISSED
WITH PREJUDICE. A separate order will be entered.
DONE this 30th day of September, 2016.
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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