Battles v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/27/2018. (PSM)

FILED
2017 Sep-27 PM 02:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
PEGGY BATTLES,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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4:16-cv-689-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Peggy Battles, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying her applications
for Supplemental Security Income (“SSI”), a period of disability, and Disability
Insurance Benefits (“DIB”). Ms. Battles timely pursued and exhausted her
administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Ms. Battles was forty-seven years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a tenth grade education. She has past
work as a restaurant assistant manager, combination working manager/stocker,

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cashier, produce manager, and retail stocker. (Tr. at 126.) Ms. Battles claims that
she became disabled on December 21, 2012, the date of her fourth knee surgery.
(Tr. at 112.) She claims to suffer from numerous physical and mental problems
including major depressive disorder, panic disorder, posttraumatic stress disorder,
severe back pain due to degenerative disc disease, severe neck pain due to cervical
degenerative disc disease, joint pain due to osteoarthritis, chronic hypertension,
severe bilateral wrist pain due to carpal tunnel syndrome s/p arthroscopic surgery
in 2011, severe bilateral foot pain, severe headaches, obesity, and insomnia.
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).

See id. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.

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The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s

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residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the Plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ first found that Ms.
Battles meets the insured status requirements of the Social Security Act through
December 31, 2017. (Tr. at 114.) He next determined that Ms. Battles has not
engaged in SGA since the alleged onset of her disability, December 21, 2012. (Id.)
According to the ALJ, Plaintiff’s osteoarthritis, bilateral carpal tunnel syndrome,
s/p bilateral releases, bilateral degenerative joint disease of the knees, s/p right

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knee bicompartmental arthroplasty, obesity, depression, anxiety, and posttraumatic
stress disorder are considered “severe” based on the requirements set forth in the
regulations. (Id.) However, he determined that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 119.)
The ALJ determined that Plaintiff has the RFC to perform sedentary work that
requires no operation of foot controls, bilaterally; no climbing ladders, ropes, or
scaffolds; no exposure to excessive vibration, unprotected heights, uneven terrain,
or hazardous, moving machinery; no more than occasionally climbing ramps and
stairs, balancing, stooping, kneeling, crouching, or crawling; no more than frequent
handling and fingering, bilaterally; can understand, remember, and carry out simple
instructions for periods of two hours at a time over an eight-hour day with normal
mid-morning, lunch, and mid-afternoon breaks; and can tolerate occasional
decision-making, occasional changes to her work environment, and occasional
interaction with the public, co-workers, and supervisors. (Tr. at 121.)
According to the ALJ, Ms. Battles cannot perform any of her past relevant
work. (Tr. at 126.) The ALJ further noted that Plaintiff is a “younger individual
aged 45-49,” she has a “limited education,” and she is able to communicate in
English, as those terms are defined in the regulations. (Id.) With the assistance of a

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vocational expert (“VE”), the ALJ found Plaintiff could perform a significant
number of jobs in the national economy including document scanner, table worker,
and addressing clerk. (Tr. at 127.) Accordingly, the ALJ found Plaintiff was not
under a disability as defined in the Social Security Act from December 21, 2012
through the date of his decision. (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“The substantial evidence standard permits administrative decision

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makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Ms. Battles alleges that the ALJ’s decision should be reversed and remanded

for four reasons. 1 First, she believes that the ALJ erred in finding her subjective
complaints of pain not credible because Social Security Ruling (“SSR”) 16-3p,

1

The Court has grouped several of Plaintiff’s claims together.
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which became effective on March 28, 2016, applies retroactively to her case and
eliminates consideration of a claimant’s credibility from an ALJ’s analysis. Second,
Plaintiff challenges the weight given by the ALJ to some of the medical sources in
her case. Specifically, she contends that the ALJ erred in giving little weight to the
opinion of her treating physician, Dr. Keithan, and to the opinions of one-time
consultative examiners Dr. Ripka and Dr. Wilson. Third, Plaintiff asserts that the
ALJ should have found that her impairments meet or medically equal Listings 1.02,
12.04 and 12.06 at step three of the sequential evaluation process. Fourth, she
argues that the Appeals Council refused to review new evidence she submitted
solely because it was dated after the ALJ’s decision without considering whether
the new evidence was actually chronologically relevant and/or material, and that
the ALJ’s decision was not based on substantial evidence when the evidence to the
Appeals Council is considered.
A.

Credibility Determination and SSR 16-3p

Plaintiff contends that the ALJ erred in evaluating her credibility under SSR
16-3p, which became effective on March 28, 2016. Plaintiff argues that this rule
modification is retroactive and credibility is no longer an issue.
The Commissioner published SSR 16-3p on March 24, 2016, and explicitly
established the effective date for the ruling as March 28, 2016. See SSR 16-3p, 2016

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WL 1237954, at *1 (March 24, 2016). SSR 16-3p was intended to supersede former
SSR 96-7p, and was enacted for the purpose of providing “guidance about how we
evaluate statements regarding the intensity, persistence, and limiting effects of
symptoms in disability claims under Titles II and XVI of the Social Security Act.”
SSR 16-3p, 2016 WL 1119029 (March 16, 2013), at *1. Specifically, SSR 16-3p
eliminat[ed] the use of the term “credibility” from [the Social
Security Administration’s] sub-regulatory policy, as our regulations do
not use this term. In doing so, we clarify that subjective symptom
evaluation is not an examination of an individual’s character. Instead,
we will more closely follow our regulatory language regarding
symptom evaluation.
Consistent with our regulations, we instruct our adjudicators to
consider all of the evidence in an individual’s record when they
evaluate the intensity and persistence of symptoms after they find that
the individual has a medically determinable impairment(s) that could
reasonably be expected to produce those symptoms. We evaluate the
intensity and persistence of an individual’s symptoms so we can
determine how symptoms limit ability to perform work-related
activities for an adult . . . .
...
In evaluating an individual’s symptoms, our adjudicators will not
assess an individual’s overall character or truthfulness in the manner
typically used during an adversarial court litigation. The focus of the
evaluation of an individual’s symptoms should not be to determine
whether he or she is a truthful person. Rather, our adjudicators will
focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the
individual’s symptoms and given the adjudicator’s evaluation of the
individual’s symptoms, whether the intensity and persistence of the
symptoms limit the individual’s ability to perform work-related
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activities or, for a child with a title XVI disability claim, limit the
child’s ability to function independently, appropriately, and effectively
in an age-appropriate manner.
Id. at *1-2, 10 (alterations and ellipses supplied).
Plaintiff asserts that even though SSR 16-3p was not adopted until after her
case was decided in September 2014, it should be applied retroactively. However,
according to the Supreme Court, “[r]etroactivity is not favored in the law,” and
administrative rules will not be construed to have retroactive effect unless
Congress expressly empowers the agency to promulgate retroactive rules and the
language of the rule explicitly requires retroactive application. Bowen v. Georgetown
University Hosp., 488 U.S. 204, 208 (1988). The retroactivity of SSR 16-3p has not
been directly addressed by any circuit court of appeals in a published decision.
Nonetheless, the Eleventh Circuit has twice recently declined to apply SSR 16-3p
retroactively in unpublished cases. See Green v. Comm’r, 2017 WL 3187048, at *4
(11th Cir. July 27, 2017); Lara v. Comm’r, 2017 WL 3098126, at *8 n.6 (11th Cir.
July 21, 2017).
Plaintiff cites Cole v. Colvin, 831 F.3d 411 (7th Cir. 2016), a Seventh Circuit
case which neither endorsed nor otherwise discussed retroactive application of SSR
16-3p. She also cites Mendenhall v. Colvin, No. 3:14-cv-3389, 2016 WL 4250214
(C.D. Ill. Aug. 10, 2016), a non-binding out-of-circuit district court case which

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cited to a Seventh Circuit case to find an exception to the rule in Bowen, 488 U.S. at
208, where the new rule clarifies rather than changes existing law. See Mendenhall,
2016 WL 4250214, at *3 (citing Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir.
1993), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999)). However, contrary to the reading of Pope urged in Mendenhall, the Pope
court did not remand for reconsideration under a new regulation, and it explicitly
held that applying a regulation that is a mere clarification of an existing regulation
“is no more retroactive in its operation than is a judicial determination construing
and applying a statute to a case in hand.” Pope, 998 F.2d at 483. That is, rather than
remand the case for reconsideration under the new regulation, the Pope court
considered the clarification and affirmed the ALJ’s decision. See id. at 486-87.
Given the Supreme Court’s holding in Bowen and the absence of any binding
precedent directing that SSR 16-3p is to apply retroactively, the Court is not
persuaded that SSR 16-3p applies retroactively to the ALJ’s September 2014
decision in this case.
Even if SSR 16-3p did apply retroactively, the ALJ did not violate it in this
case. As an initial matter, SSR 16-3p does not alter the methodology for evaluating
a claimant’s symptoms, but rather explains that the Commissioner eliminated the
use of the term “credibility” from this consideration, as “subjective symptom

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evaluation is not an examination of an individual’s character.” SSR 16-3p, 2016
WL 1119029, at *1. Even though the ALJ used the term “credibility,” he did not
assess Plaintiff’s general, or “overall” character for truthfulness. Instead, he
determined, in accordance with SSR 16-3p, whether Plaintiff’s subjective
complaints were supported by the medical evidence and consistent with other
information in the record, as explained further below. See Cole, 831 F.3d at 412
(“The change in wording [from SSR 96-7p to SSR 16-3p] is meant to clarify that
administrative law judges aren’t in the business of impeaching claimants’
character; obviously administrative law judges will continue to assess the credibility
of pain assertions by applicants, especially as such assertions often cannot be either
credited or rejected on the basis of medical evidence.”).
Nor did the ALJ’s consideration of Plaintiff’s subjective symptoms violate
existing regulations, which have not changed. See 20 C.F.R. §§ 404.1529, 416.929.
When a claimant attempts to prove disability based on her subjective complaints,
she must provide evidence of an underlying medical condition and either objective
medical evidence confirming the severity of her alleged symptoms or evidence
establishing that her medical condition could be reasonably expected to give rise to
her alleged symptoms. See 20 C.F.R. § 416.929(a), (b); Wilson v. Barnhart, 284
F.3d 1219, 1225-26 (11th Cir. 2002). If the objective medical evidence does not

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confirm the severity of the claimant’s alleged symptoms but the claimant
establishes that she has an impairment that could reasonably be expected to
produce her alleged symptoms, the ALJ must evaluate the intensity and persistence
of the claimant’s alleged symptoms and their effect on her ability to work. See 20
C.F.R. § 416.929(c), (d); Wilson, 284 F.3d at 1225-26. An ALJ is not required to
accept a claimant’s allegations of pain and/or symptoms. Wilson, 284 F.3d at 1225–
26. However, the ALJ must “[explicitly articulate] the reasons justifying a decision
to discredit a claimant’s subjective pain testimony.” Moore v. Barnhart, 405 F.3d
1208, 1212 n.4 (11th Cir. 2005) (citing Cannon v. Bowen, 858 F.2d 1541, 1545 (11th
Cir. 1988)). Further, when the reasoning for discrediting is explicit and supported
with substantial evidence, “the record will not be disturbed by a reviewing court.”
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).
Other than to restate portions of her hearing transcript, Plaintiff does not
explain how the ALJ erred in evaluating her credibility. Nonetheless, in this case,
the ALJ’s decision reveals that he properly assessed Plaintiff’s subjective
complaints of pain. Plaintiff testified that her carpal tunnel releases and knee
replacements were all unsuccessful; that she cannot sit for longer than 30 minutes
or stand for longer than 15 to 20 minutes at a time; that she has problems
manipulating things with her hands and fingers; she is unable to turn her head to

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the left; she does not drive or do much cleaning; her pain is a 7 out of 10; her
current pain medications are ineffective; she spends 95% of her waking hours lying
in bed; she only sleeps two hours per night; she hallucinates at night; and she
unintentionally lost 60 pounds over a period of a few months due to depression.
(Tr. at 73-77.) Based on the overall evidence as explained by the ALJ, the ALJ
found that Plaintiff’s medically determinable impairments could reasonably be
expected to cause her alleged symptoms, but that Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of her symptoms were not entirely
credible. (Tr. at 121-22).
Substantial evidence supports the ALJ’s credibility determination. As noted
by the ALJ, Plaintiff’s allegations were inconsistent with the evidence of record,
including the findings of Dr. Upadhyay and consultative examiner, Dr. Iyers. (Tr.
123). Dr. Upadhyay, Plaintiff’s former pain management specialist, whom she saw
three times in October and November 2012 and January 2013, identified neck pain
into the left shoulder as her chief complaint but characterized her neck as having
good range of motion. (Tr. at 478.) At her March 2013 consultative examination
with Dr. Iyers, Plaintiff reported a two-year history of neck pain but Dr. Iyers also
found that she had full neck and upper extremity range of motion. (Tr. at 518.) The
ALJ also discussed how Plaintiff’s allegations regarding her hand and finger

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limitations were also inconsistent with the evidence of record, including Dr.
Sparks’s treatment notes. (Tr. at 430-32.) Dr. Sparks performed Plaintiff’s carpal
tunnel release and released her to return to work in October 2011, noting that
Plaintiff said her hands were “doing good.” (Id.) The ALJ also explained how the
medical evidence showed that Plaintiff retained normal grip strength bilaterally and
normal range of motion (Tr. at 123, 430-32). Finally, the ALJ contrasted Plaintiff’s
subjective complaints about her hands and fingers with her admission that she put
together jigsaw puzzles. (Tr. at 123).
In sum, the ALJ properly assessed the intensity and persistence of Plaintiff’s
symptoms. Plaintiff failed to show that the ALJ’s evaluation of her alleged
symptoms did not comply with the policy clarifications contained in SSR 96-7p or
SSR 16-3p.
B.

Weight Given to Medical Source Opinions

The ALJ must articulate the weight given to different medical opinions in the
record and the reasons therefore. See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1179 (11th Cir. 2011). The weight afforded to a medical opinion regarding the
nature and severity of a claimant’s impairments depends, among other things, upon
the examining and treating relationship the medical source had with the claimant,
the evidence the medical source presents to support the opinion, how consistent

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the opinion is with the record as a whole, and the specialty of the medical source.
See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Within the classification of acceptable medical sources are the following
different types of sources that are entitled to different weights of opinion: 1) a
treating source, or a primary physician, which is defined in the regulations as “your
physician, psychologist, or other acceptable medical source who provides you, or
has provided you, with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you;” 2) a non-treating source, or a consulting
physician, which is defined as “a physician, psychologist, or other acceptable
medical source who has examined you but does not have, or did not have, an
ongoing treatment relationship with you;” and 3) a non-examining source, which is
a “a physician, psychologist, or other acceptable medical source who has not
examined you but provides a medical or other opinion in your case . . . includ[ing]
State agency medical and psychological consultants . . . .” 20 C.F.R. § 404.1502.
The regulations and case law set forth a general preference for treating
medical sources’ opinions over those of non-treating medical sources, and nontreating medical sources over non-examining medical sources. See 20 C.F.R. §
404.1527(d)(2); Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985). Thus, a
treating physician’s opinion is entitled to “substantial or considerable weight

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unless ‘good cause’ is shown to the contrary.” Crawford, 363 F.3d at 1159 (quoting
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations
omitted). “Good cause” exists for an ALJ to not give a treating physician’s opinion
substantial weight when the: “(1) treating physician’s opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips, 357 F.3d at 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good
cause” existed where the opinion was contradicted by other notations in the
physician’s own record). On the other hand, the opinions of a one-time examiner or
of a non-examining medical source are not entitled to the initial deference afforded
to a physician who has an ongoing treating relationship with a plaintiff. McSwain v.
Bowen, 814 F.2d 617, 619 (11th Cir. 1987). However, an ALJ “may reject the
opinion of any physician when the evidence supports a contrary conclusion.”
McCloud v. Barnhart, 166 F. App’x 410, 418–19 (11th Cir. 2006) (citing Bloodsworth
v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)).
The Court must also be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the application
of vocational factors “are not medical opinions, . . . but are, instead, opinions on

17

issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The Court is interested in the
doctors’ evaluations of the claimant’s “condition and the medical consequences
thereof, not their opinions of the legal consequences of his [or her] condition.”
Lewis, 125 F.3d at 1440. Such statements by a physician are relevant to the ALJ’s
findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing a claimant’s RFC. See, e.g., 20 C.F.R. § 404.1546(c).
1.

Treating Physician

On June 4, 2013, Dr. Keithan, Plaintiff’s treating physician, completed a
Physician Statement in which he opined that Plaintiff could not sit, stand, or walk
at all during an eight-hour day. (Tr. at 526, 580). He also opined that Plaintiff
should never lift any weight, not even one pound. (Id.) Dr. Keithan opined that
these limitations began in August 2012. (Id.)
The ALJ gave little weight to Dr. Keithan’s opinion because notes from
other examiners documented a higher level of function before and after Dr. Keithan
completed the physician statement, Dr. Keithan’s own treatment notes failed to
support the severity of limitations indicated, and Dr. Keithan’s records,
particularly from the periods under consideration, did not include objective

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medical findings or other evidence to support his opinion. (Tr. at 397-406, 489511).
Substantial evidence supports the ALJ’s decision here. Dr. Keithan noted
Plaintiff’s diagnoses in his records, but diagnoses do not establish limitations. (Tr.
at 397-406, 489-511). See Moore, 405 F.3d at 1213 n.6; see also, e.g., Wind v.
Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (“a diagnosis or a mere showing
of ‘a deviation from purely medical standards of bodily perfection or normality’ is
insufficient; instead, the claimant must show the effect of the impairment on her
ability to work”) (quoting McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)).
Dr. Keithan’s records do not include objective clinical findings or other acceptable
evidence to support his opinion. For example, Dr. Keithan did not perform
Plaintiff’s knee surgeries. Other medical opinions submitted during the same time
period were drastically different from Dr. Keithan’s. A physical capacities
evaluation form completed at The Orthopedic Center, where Dr. Sparks, who
performed her knee surgery, practiced, indicated that Plaintiff could sit a total of
eight hours in an eight-hour workday, could stand for one hour at a time and a total
of three hours in an eight hour workday, can walk for one hour at a time and a total
of two hours in an eight-hour workday, and can lift as much as 50 pounds
occasionally and 10 pounds frequently. (Tr. at 525.)

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The ALJ provided good reasons, supported by substantial evidence, for
giving little weight to Dr. Keithan’s opinion.
2.

One-Time Consultative Examiners

On January 17, 2014, one month before her hearing, Dr. Ripka, an orthopedic
surgeon, performed a one-time examination at the request of Plaintiff’s counsel and
opined that Plaintiff could sit for only one hour, stand for less than 15 minutes, walk
for less than 15 minutes, and would need to elevate her legs at waist level for seven
hours during a typical eight-hour workday. (Tr. at 623).
The ALJ gave little weight to Dr. Ripka’s opinion because his conclusions
were inconsistent with his own findings as well as those of other examiners and
because he admitted that he had no access to any x-rays or other imaging evidence.
(Tr. at 125.)
Substantial evidence supports the ALJ’s decision here. Although Dr. Ripka
said Plaintiff’s functional limitations existed back to December 21, 2012 (tr. at 623),
he did not examine Plaintiff until January 2014. Dr. Ripka’s findings that Plaintiff
was able to stand or walk less than 15 minutes each at one time and that she would
be expected to be lying down, sleeping, or sitting with her legs propped at waist
level or above due to her medical condition seven hours out of an eight-hour
workday was inconsistent with his own medical report. (Tr. at 125). For example,

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his consultative medical report did not diagnose Plaintiff with any impairments
other than to say she had multiple orthopedic problems. (Tr. at 626-27). Although
Dr. Ripka found Plaintiff had a normal gait, he limited her to standing and walking
for less than fifteen minutes. (Tr. at 626-27). Additionally, while Dr. Ripka found
Plaintiff had essentially lost all motion in her neck, Riverview Medical Center
reported a completely normal range of motion in her neck just two months earlier.
(Tr. at 600.) Several other of Dr. Ripka’s diagnoses are not supported anywhere
else in the record. For example, he found that Plaintiff likely had a stroke during
her first pregnancy which caused continuing left-side weakness as a result. (Tr. at
640.) However, that pregnancy was over 30 years ago; no other medical source in
the record has noted any evidence suggestive of a stroke; and Plaintiff returned to
work after that pregnancy as well as three additional pregnancies. Dr. Ripka also
posited that Plaintiff had rheumatoid arthritis, but Dr. Chindalore, a
rheumatologist whom Plaintiff began seeing in 2010, reported that her rheumatoid
factor was normal. (Tr. at 388.)
On July 7, 2014, also just weeks before her hearing, Dr. Wilson, a
psychologist, conducted a one-time psychological consultative examination of
Plaintiff at the request of her attorney. (Tr. at 632). Dr. Wilson said Plaintiff had
poor mental control and attention and had significant problems with short-term

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memory and working memory, poor abstract reasoning, difficulty thinking clearly
and explaining herself and had many somatic complaints and concerns. (Tr. at 633).
He noted that Plaintiff also had depressed affect with clinically significant levels of
depression and anxiety. (Tr. at 633). Dr. Wilson diagnosed Plaintiff with major
depressive disorder and panic disorder. (Tr.at 633). As for Plaintiff’s functional
limitations, Dr. Wilson opined that Plaintiff was impaired in her ability to withstand
the pressures of day-to-day functioning and would have difficulty maintaining any
type of job. (Tr. at 633). Dr. Wilson assessed Plaintiff with a Global Assessment
Functioning score of 45, which indicates very low levels of functioning. (Tr. at
634). Dr. Wilson completed a Mental Health Source Statement and opined that
Plaintiff was unable to sustain an ordinary routine without special supervision,
perform activities within a schedule, maintain regular attendance, and be punctual;
maintain attention, concentration, and pace; understand, remember and carry out
very short and simple instructions; and maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness. (Tr. at 635).
The ALJ gave little weight to Dr. Wilson’s opinion because other
contemporaneous medical opinions in the record did not support findings as
significant as those posited by Dr. Wilson. (Tr. at 125.)

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Substantial evidence supports the ALJ’s decision. The ALJ noted that
difficulties Dr. Wilson observed were not representative of Plaintiff’s typical
presentation because other examining and treating providers did not report similar
observations. (Tr. at 124). For example, while Dr. Wilson opined that Plaintiff had
“poor mental control and attention” and “significant problems with short-term
and working memory,” no records prior to his examination reflect similar
complaints by Plaintiff and there are no similar observations by other examiners in
the record. Although Plaintiff reported depression and anxiety at November 2013
and May 2014 evaluations by a social worker at Quality of Life Health Services, the
social worker found that Plaintiff’s memory was intact, attention was intact and her
behavior was unremarkable. (Tr. at 531.) Dr. Ripka observed no abnormalities in
mood or presentation at his examination of Plaintiff less than three weeks before
she saw Dr. Wilson. (Tr. at 624-27). The ALJ also noticed Plaintiff’s behavior at
the hearing conflicted with Dr. Wilson’s findings. (Tr. at 124). Although Plaintiff
became emotional when discussing some traumatic events in her past and the
decline in her physical abilities, the ALJ found she was able to provide detailed
responses to questions, exhibited no evidence of memory deficits, and
demonstrated excellent communication skills. (Tr. at 124). Plaintiff also reported
on her function report that she worked crossword puzzles and jigsaw puzzles

23

several times a week with no reported difficulties. (Tr. at 315.) She also denied
having any difficulty handling financial matters at her hearing. (Tr. at 69.)
C.

Listings 1.02, 12.04, and 12.06

To establish a presumption of disability based upon a listing at step three of
the sequential evaluation process, a claimant must show “a diagnosis included in
the Listings and must provide medical reports documenting that the conditions met
the specific criteria of the Listings and the duration requirement.” Wilson, 284
F.3d at 1224 (citations omitted); see 20 C.F.R. §§ 404.1525, 404.1526, 416.925,
416.926. Additionally, a claimant’s impairments must meet or equal all of the
specified medical criteria in a particular listing for the claimant to be disabled at
step three. Sullivan v. Zebley, 493 U.S. 521, 530-32 (1990). “A claimant cannot
qualify for benefits under the ‘equivalence’ step by showing that the overall
functional impact of his unlisted impairment or combination of impairments is as
severe as that of a listed impairment.” Id. at 531.
1.

Listing 1.02

Listing 1.02, which is called “Major dysfunction of a joint(s) (due to any
cause),” states:
Characterized by gross anatomical deformity (e.g., subluxation,
contracture, bony or fibrous ankylosis, instability) and chronic joint
pain and stiffness with signs of limitation of motion or other abnormal
motion of the affected joint(s), and findings on appropriate medically
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acceptable imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively, as defined
in 1.00B2b; Or
B. Involvement of one major peripheral joint in each upper extremity
(i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform
fine and gross movements effectively, as defined in 1.00B2c.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02.
Plaintiff lists the criteria of Listing 1.02, and she cuts and pastes portions of
her medical records into her brief, but she does not argue or explain how her
impairments met or equaled the criteria in subsections A or B of Listing 1.02.
In any event, substantial evidence supports the ALJ’s determination that
Plaintiff did not meet Listing 1.02. With respect to 1.02A, clinical examinations did
not reveal evidence that Plaintiff had an inability to walk effectively. The evidence
shows instead that Plaintiff required no assistance with walking and demonstrated
the ability to sustain such functions as walking at a reasonable pace over sufficient
distance. For example, The Orthopedic Center examined Plaintiff multiple times
during the period considered by the ALJ and reported no problems with Plaintiff’s
gait. (Tr. at 579). The physical capacities form completed by The Orthopedic
Center, where Dr. Sparks, Plaintiff’s surgeon, practiced, stated that Plaintiff could

25

walk for a total of two hours in an eight-hour day and stand for three hours in an
eight-hour day, which suggests that Plaintiff was able to walk effectively. (Tr. at
525). Similarly, Dr. Iyers, the consultative examiner, did not find that Plaintiff was
unable to walk effectively. (Tr. at 520-21). Dr. Iyers found Plaintiff had full range of
motion of the left knee and ankles but limited extension of the right knee. (Tr. at
521). Plaintiff’s straight leg raising was negative. (Id.) Plaintiff’s muscle power in
her lower extremities was also normal. (Id.. Dr. Iyers found no significant
abnormality of the extremities and no motor or sensory deficits. (Tr. at 520, 521).
Dr. Ripka also reported that Plaintiff walked with a normal gait. (Tr. at 627). The
only gait difficulty he observed was due to Plaintiff’s vertigo rather than
musculoskeletal or joint problems. (Tr. at 626). Other medical records indicate that
Plaintiff walked with a limp, but did not indicate that Plaintiff was unable to walk
effectively. (Tr. at 638). The evidence does not indicate that Plaintiff’s
impairments meet the requirements of Listing 1.02A.
Nor do Plaintiff’s impairments related to her hand and finger limitations
meet the requirements of Listing 1.02B. Plaintiff’s medical records do not indicate
that she was unable to perform fine and gross movements. Dr. Iyers found
Plaintiff’s grip strength and opposition functions were normal. (Tr. at 521).
Plaintiff also had full range of motion of the wrists. (Id.) Plaintiff did not have any

26

limitation of functions with handling. (Tr. at 522). Although Dr. Ripka found
Plaintiff had loss of muscle strength in the left hand and had limited power of grasp,
he did not indicate that Plaintiff was unable to perform fine and gross hand
movements effectively. (Tr. at 627). In fact, he reported that Plaintiff’s activities of
daily living were normal and she was able to cook simple meals. (Id.) Dr.
Upadhyay’s notes reflect no abnormal hand or wrist findings, and there is no
evidence that Plaintiff had any difficulty maintaining her grip on the walker she
used after her knee replacement surgery. (Tr. at 637-706). Plaintiff’s failure to
provide evidence of inability to walk effectively or perform fine and gross
manipulations is sufficient to establish that her impairments did not meet or equal
Listing 1.02.
2.

Listings 12.04 and 12.06

Listing 12.04 addresses affective disorders, as follows:
Characterized by a disturbance of mood, accompanied by a full or
partial manic or depressive syndrome. Mood refers to a prolonged
emotion that colors the whole psychic life; it generally involves either
depression or elation. The required level of severity for these
disorders is met when the requirements in both A and B are satisfied,
or when the requirements in C are satisfied.
A. Medically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the
following: a. Anhedonia or pervasive loss of interest in almost all
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activities; or b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or d. Psychomotor agitation or retardation;
or e. Decreased energy; or f. Feelings of guilt or worthlessness;
or g. Difficulty concentrating or thinking; or h. Thoughts of
suicide; or i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the
following: a. Hyperactivity; or b. Pressure of speech; or c. Flight
of ideas; or d. Inflated self-esteem; or e. Decreased need for
sleep; or f. Easy distractibility; or g. Involvement in activities
that have a high probability of painful consequences which are
not recognized; or h. Hallucinations, delusions or paranoid
thinking; or
3. Bipolar syndrome with a history of episodic periods
manifested by the full symptomatic picture of both manic and
depressive syndromes (and currently characterized by either or
both syndromes); AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended
duration; OR
C. Medically documented history of a chronic affective disorder of at
least 2 years’ duration that has caused more than a minimal limitation
of ability to do basic work activities, with symptoms or signs currently
attenuated by medication or psychosocial support, and one of the
following:

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1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate; or
3. Current history of 1 or more years’ inability to function
outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04.
Listing 12.06 addresses anxiety-related disorders, as follows:
In these disorders anxiety is either the predominant disturbance or it is
experienced if the individual attempts to master symptoms; for
example, confronting the dreaded object or situation in a phobic
disorder or resisting the obsessions or compulsions in obsessive
compulsive disorders. The required level of severity for these
disorders is met when the requirements in both A and B are satisfied,
or when the requirements in both A and C are satisfied.
A. Medically documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of
four of the following signs or symptoms: a. Motor tension; or b.
Autonomic hyperactivity; or c. Apprehensive expectation; or d.
Vigilance and scanning; or
2. A persistent irrational fear of a specific object, activity, or
situation which results in a compelling desire to avoid the
dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden
unpredictable onset of intense apprehension, fear, terror and

29

sense of impending doom occurring on the average of at least
once a week; or
4. Recurrent obsessions or compulsions which are a source of
marked distress; or
5. Recurrent and intrusive recollections of a traumatic
experience, which are a source of marked distress; AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended
duration. OR
C. Resulting in complete inability to function independently outside
the area of one’s home.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.06.
Again, Plaintiff merely cuts and pastes portions of her medical records, this
time dealing with her mental impairments, but fails to articulate which part of
Listings 12.04 or 12.06 she claims to meet.
Nonetheless, the record, as discussed by the ALJ, provides substantial
evidence to support the ALJ’s evaluation of these Listings. With regard to
subsection “A” of either Listing, although Plaintiff was diagnosed with anxiety and

30

an affective disorder (depression), a diagnosis alone is insufficient to satisfy the
criteria of a listing impairment. See 20 C.F.R. §§ 404.1525(d), 416.925(d). With
regard to subsections “B” and “C” of either Listing, Plaintiff failed to cite
evidence proving that she had at least two of the following: “marked” restriction in
activities of daily living; “marked” difficulties in maintaining social functioning;
“marked” difficulties in maintaining concentration, persistence, or pace; or
“repeated” episodes of decompensation, each of extended duration. See 20 C.F.R.
pt. 404, subpt. P, app. 1, §§ 12.00A, 12.00C, 12.04A, 12.06A. The ALJ completed
the Psychiatric Review Technique form required when a claimant alleges mental
impairments and noted evidence indicating Plaintiff had only “mild” restriction in
activities of daily living, “moderate” difficulties in maintaining social functioning,
“moderate” difficulties in maintaining concentration, persistence, or pace, and no
episodes of decompensation. (Tr. at 119-20). His conclusions are supported by the
evidence, as Plaintiff’s own function report indicates that she cooks, does light
housework, shops as necessary, performs personal hygiene tasks adequately and
independently, continues to drive as needed, helps take care of family pets, watches
television, puts together jigsaw puzzles, and works crossword puzzles. (Tr. at 30310.) Dr. Ripka echoed these activities in his examination notes when he noted that
Plaintiff’s activities of daily living and hygiene are normal. (Tr. at 627.) Dr.

31

Wilson’s examination notes note the same daily activities that reveal only mild or
moderate difficulties. (Tr. at 630.) Plaintiff has failed to show how the ALJ erred in
concluding that Plaintiff’s impairments did not meet or equal the criteria of Listing
12.04 or Listing 12.06.
D.

Appeals Council Review

“With a few exceptions, the claimant is allowed to present new evidence at
each stage of this administrative process,” including before the Appeals Council.
Ingram v. Comm’r, 496 F.3d 1253, 1261 (11th Cir. 2007). The Appeals Council has
the discretion not to review the ALJ’s denial of benefits. See 20 C.F.R. §
416.1470(b). However, “[t]he Appeals Council must consider new, material and
chronologically relevant evidence and must review the case if ‘the administrative
law judge’s action, findings, or conclusion is contrary to the weight of the evidence
currently of record.’” Ingram, 496 F.3d at 1261; see also 20 C.F.R. §§ 404.970(b),
416.1470(b). When considering the Appeals Council’s denial of review, a reviewing
court considers such new evidence, along with all the other evidence in the record,
to determine whether substantial evidence supports the ALJ’s decision. See 20
C.F.R. §§ 404.970(b), 416.1470(b); Ingram, 496 F.3d at 1266.
Plaintiff first asserts that the Appeals Council denied review without actually
examining the medical records she submitted once the Appeals Council saw that

32

they were dated after the ALJ’s decision. Plaintiff’s argument is without merit. The
Appeals Council specifically stated that it “looked at records from CED Mental
Health Center, dated June 17, 2015, through October 22, 2015 (20 pages).” (Tr. at
2). However, the Appeals Council stated that “[t]his information is about a later
time. Therefore, it does not affect the decision about whether you were disabled
beginning on or before September 19, 2014.” (Id.)
Plaintiff attempts to rely upon Washington v. Soc. Sec. Admin., Comm’r, 806
F.3d 1317 (11th Cir. 2015), where the Eleventh Circuit held that it was legal error
for the Appeals Council to refuse to consider a claimant’s additional evidence. Id.
at 1321. The Appeals Council in that case explained that it refused to consider
additional evidence from two medical sources because “their opinions concerned a
later time period and were immaterial to whether [the claimant] was disabled on or
before the date of the ALJ’s decision.” Id. at 1320. The Washington court expressly
noted that the case was “not a case in which the Appeals Council considered the
additional evidence and then denied review.” Id. at 1321 n.5. The court explained
that “[w]hen the Appeals Council accepts additional evidence, considers the
evidence, and then denies review, it is not ‘required to provide a detailed rational
for denying review.’” Id. (quoting Mitchell v. Comm’r, Soc., Sec. Admin., 771 F.3d
780, 784 (11th Cir. 2014)). Unlike the Appeals Council in Washington, the Appeals

33

Council here stated that it “looked at,” or considered, the additional evidence, so
here, Mitchell, 771 F.3d at 784, controls, not Washington.
Plaintiff also argues that once the additional evidence submitted to the
Appeals Council is taken into consideration, substantial evidence does not support
the ALJ’s denial of benefits. This Court must thus decide whether the additional
records submitted to the Appeals Council by Plaintiff were chronologically relevant
to the time period considered by the ALJ and whether they constituted material
evidence, in order to determine whether the Appeals Council erred in denying
review. See Ingram, 496 F.3d at 1261.
The period under consideration by the ALJ was from December 21, 2012
through September 19, 2014. (Tr. at 8-27.) The additional treatment records
Plaintiff submitted were dated after the ALJ’s decision. They consisted of mental
health records dated June 17, 2015, through October 22, 2015, and a mental health
examination dated September 4, 2015, showing that Plaintiff complained of
depression and anxiety and that she had recently attempted suicide by overdosing.
(Tr. at 329-377, 637-706.) They are not chronologically relevant on their face.
However, the Eleventh Circuit has recognized that an examination conducted after
the ALJ’s decision may still be chronologically relevant if it relates back to the
period before the ALJ’s decision. Washington, 806 F.3d at 1321. But in Washington,

34

the Eleventh Circuit held that the opinion of a psychologist who examined the
claimant after the ALJ’s decision was chronologically relevant when the
psychologist stated in his opinion that his conclusions were based on, among other
things, his review of the medical records from the period before the ALJ’s decision.
See 806 F.3d at 1322. In contrast here, Plaintiff has not pointed to anything in the
additional records dated June through October 2015 showing that they were based
on treatment provided to Plaintiff before the ALJ’s decision. Plaintiff merely argues
that the new submissions “describe psychological symptoms manifested by
Claimant that, due to their nature and severity, could bear on her condition during
the relevant period.” (Doc. 10 at 57.) This is not enough to show that they
concerned the time period under review.
The additional evidence Plaintiff submitted does not demonstrate that
substantial evidence did not support the ALJ’s decision and the Appeals Council
properly denied review.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Battles’

arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.

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DONE and ORDERED on September 27, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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