Wilkerson v. Social Security Administration, Commissioner

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 3/16/18. (MRR, )

FILED
2018 Mar-16 PM 12:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CHARLES WILKERSON,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:16-cv-998-TMP

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Charles Wilkerson, appeals from the decision of the

Commissioner of the Social Security Administration (ACommissioner@)1 denying
his application for disability and Disability Insurance Benefits (ADIB@).

Mr.

Wilkerson timely pursued and exhausted his administrative remedies, and the
decision of the Commissioner is ripe for review pursuant to 42 U.S.C. '' 405(g),
1383(c)(3). The parties have consented to the jurisdiction of the undersigned

1

Counsel for the Commissioner pointed out that Nancy A. Berryhill is now the Acting
Commissioner of Social Security. The Clerk is DIRECTED to change the style of the case
accordingly.
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magistrate judge pursuant to 28 U.S.C. ' 626(c). Accordingly, the court enters this
Memorandum Opinion.
Mr. Wilkerson was 50 years old at the time of the Administrative Law Judge=s
(AALJ=s@) decision, and he has an eighth-grade education. 2 (Tr. at 178, 232). His
past work experiences include work as a truck driver, upholsterer, forklift operator,
and floor sander. (Tr. at 204-05). Mr. Wilkerson claims that he became disabled
on July 12, 2012, due to degenerative disc disease, diabetes, and lower back pain.
(Tr. at 350).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
'' 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If
he is, the claimant is not disabled and the evaluation stops. Id. If he is not, the

2

The ALJ reported that Mr. Wilkerson had a tenth-grade education, but at the hearing Mr.
Wilkerson testified that he finished “roughly the eighth grade.” (Tr. at 178). The claimant’s
application for disability benefits indicates that he completed the tenth grade. (Tr. at 351). Both
levels of education qualify as “limited” under the governing regulations, and the plaintiff has not
pointed to the ALJ’s assessment of his education as reversible error. 20 C.F.R. ' 404.1564(b)(3)
(defining limited education as generally applying to a seventh grade through eleventh grade level
of formal education).
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Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends upon the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.

20 C.F.R.

'' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant’s impairments meet or equal
the severity of an impairment listed in 20 C.F.R. pt. 404, Subpart P, Appendix 1. 20
C.F.R. '' 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s impairments fall
within this category, he will be found disabled without further consideration. Id.
If he does not, a determination of the claimant’s residual functional capacity
(“RFC”) will be made and the analysis proceeds to the fourth step. 20 C.F.R.
'' 404.1520(e), 416.920(e). Residual functional capacity is an assessment based
on all relevant evidence of a claimant’s remaining ability to do work despite his
impairments. 20 C.F.R. ' 404.1545(a).
The fourth step requires a determination of whether the claimant’s
impairments prevent him from returning to past relevant work.

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20 C.F.R.

'' 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the claimant can still do his past

relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if he can
do other work. 20 C.F.R. '' 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant
can do other work, the claimant is not disabled. Id. The burden of demonstrating
that other jobs exist which the claimant can perform is on the Commissioner; and,
once that burden is met, the claimant must prove his inability to perform those jobs
in order to be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999).
Applying the sequential evaluation process, the ALJ found that Mr. Wilkerson
has not been under a disability within the meaning of the Social Security Act from
the July 12, 2012, date of onset through the date of his decision on July 11, 2014.
(Tr. at 238). He determined that Mr. Wilkerson has not engaged in substantial
gainful activity since the alleged onset of his disability. (Tr. at 232). According to
the ALJ, Mr. Wilkerson=s degenerative disc disease of the cervical spine,
degenerative disc disease of the lumbar spine, chronic headaches, and diabetes

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mellitus (Type II) may be considered “severe” based on the requirements set forth in
the regulations. (Tr. at 232-34). The ALJ further determined that Mr. Wilkerson
has non-severe impairments of adjustment disorder with anxiety and depression and
degenerative joint disease of the right knee. He found that none of the impairments
meet or medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Tr. at 234). In addition, the ALJ did not find Mr. Wilkerson’s
allegations of pain and the limitations caused by his impairments to be entirely
credible. (Tr. at 235). He determined that the plaintiff has the residual functional
capacity to perform the full range of light work. (Tr. at 234).
According to the ALJ, Mr. Wilkerson is unable to perform any of his past
relevant work, he was a Ayounger individual” at the date of alleged onset, he has a
limited education, and he is able to communicate in English. (Tr. at 236-37). The
ALJ determined that “transferability of skills is not material to the determination of
disability” in this case.

(Tr. at 237). The ALJ found that there are a significant

number of jobs in the national economy that Mr. Wilkerson is capable of performing.
(Tr. at 237).

The ALJ concluded his findings by stating that Mr. Wilkerson is “not

disabled” under the Social Security Act. (Tr. at 238).

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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
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
“The substantial evidence standard permits administrative decision 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
evidence preponderates against the Commissioner’s decision, the Court must affirm
if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No

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decision is automatic, however, for “despite this deferential standard [for review of
claims] it is imperative that the 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). 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
Mr. Wilkerson alleges that the ALJ’s decision should be reversed and

remanded because, he asserts, of the following: (1) the ALJ failed to give proper
weight to the opinions of treating physician Dr. Poczatek; (2) the ALJ failed to give
proper weight to the opinion of consulting physician Dr. Estock; (3) the ALJ
improperly evaluated the plaintiff=s credibility without retroactively employing
Ruling 16-3p; (4) the ALJ’s finding that the claimant had the RFC to perform light
work was not based on substantial evidence; (5) the ALJ failed to consider the
claimant’s tremors/spasticity as a severe impairment; (6) the Appeals Council
improperly failed to review medical records submitted after the ALJ’s decision
solely based on the date of the records, without considering whether they were
chronologically relevant to the ALJ’s determination; and (7) the denial, when

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considering the evidence presented to the Appeals Council, was not supported by
substantial evidence. (Doc. 14). The Commissioner has responded by addressing
these claims in five categories: (1) the Appeals Council=s review of the evidence;
(2) the ALJ=s treatment of treating and consultative physician opinions; (3) the ALJ=s
consideration of the plaintiff=s subjective complaints as not entirely credible; (4) the
ALJ=s finding as to the plaintiff=s RFC; and (5) the ALJ=s evaluation of the severity
of plaintiff=s tremors/spasticity. (Doc. 15). The court addresses the claims in two
broad categories of the ALJ=s decision and the Appeals Council=s findings, analyzing
the plaintiff=s more specific allegations within the discussions of each category.
A. The ALJ’s Determinations
1. Treating Physician and Medical Source Assessments
Under prevailing law, a treating physician=s testimony is entitled to
“substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 1997)
(internal quotations omitted).

The weight to be afforded 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

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consistent 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). “Good cause” exists for an
ALJ not to 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) . . . was conclusory or inconsistent with the
doctor=s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 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” exists where the opinion was
contradicted by other notations in the physician’s own record).
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 issues reserved to the Commissioner;”
thus the court “may not decide facts anew, reweigh the evidence, or substitute [its]
judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005).

The court instead looks to 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. See also
20 C.F.R. ' 404.1527(d)(1)(“A statement by a medical source that you are ‘disabled’

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or ‘unable to work’ does not mean that we will determine that you are disabled.”).
Such statements by a physician are relevant to the ALJ’s findings, but they are not
determinative, because it is the ALJ who bears the responsibility of assessing a
claimant’s residual functional capacity. See, e.g., 20 C.F.R. ' 404.1546(c).
The claimant asserts that the Commissioner failed to give proper weight to the
opinions of Dr. Poczatek, a treating physician, and Dr. Estock, a non-examining
medical consultant. The opinions are examined in turn.
a. The Weight Given to Dr. Poczatek=s Opinion
The plaintiff argues that the ALJ failed to give proper weight to one statement
made by Dr. Poczatek, a treating physician, when he was deposed. Dr. Poczatek
stated that Athe spasticity would concern me enough to where I would feel he might
be not safe to work.@ (Tr. at 765).

The statement was made in response to the

question of whether the doctor had any Apresent intent@ or Apresent plans@ to restrict
Mr. Wilkerson from working. (Tr. at 764). The ALJ stated that he gave Alittle
weight@ to the deposition because the doctor had Anot placed a restriction on the
claimant=s ability to work,@ and because the doctor=s testimony was Aequivocal at
best and did not define the impact of the claimant=s alleged pain.@ (Tr. at 236).

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The record makes clear that neither Dr. Poczatek nor any other medical
professional has ever opined that Mr. Wilkerson was unable to work. The statement
by the treating doctor was in reference solely to the tremors that Mr. Wilkerson
complained of. Those tremors had been observed by doctors, but there had never
been any diagnosis of the cause, and no treatment had ever been recommended. In
the course of treating Mr. Wilkerson, Dr. Poczatek never imposed any limitation on
his ability to work as a result of the tremors. Moreover, two weeks after the alleged
onset date, another treating physician, Dr. Kirschberg, stated that, based upon the
plaintiff=s back pain, there was Ano reason why [the plaintiff] can now not return to
work.@ (Tr. at 519). The ALJ articulated reasons for giving less than controlling
weight to the single statement made in deposition by Dr. Poczatek. In addition, the
ALJ noted that the statement was inconsistent with the doctor=s own records and was
not bolstered by the evidence. For example, in examinations of the plaintiff in
April and May 2013, Dr. Poczatek found “irritation of the L5 nerve root on the left
and to a lesser extent the C6 nerve root on the left,” yet recommended that plaintiff
“increase activity” while avoiding activities that aggravate the plaintiff’s back and
neck problems. There is no indication in his records that he found the plaintiff

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unable to work.

Accordingly, the ALJ had adequate reasons for giving the

deposition testimony of Dr. Poczatek Alittle weight.@
b. The Weight Given to Dr. Estock=s Opinion
The plaintiff further argues that the ALJ failed to accord proper weight to the
opinion of Dr. Robert Estock, a non-examining consultative physician. Dr. Estock
reported that Mr. Wilkerson had “moderate” limitations in a few categories of his
mental functioning, but ultimately determined that he was “capable of
understanding, remembering and carrying out simple instructions over an 8 [hour
work day] with routine breaks,” “can concentrate for 2 [hour] periods,” and should
have only “casual and nonconfrontational” contact with co-workers, supervisors and
the general public. (Tr. at 224).

All of the cases relied upon by the plaintiff to

support his claim that the ALJ’s opinion is due to be reversed are cases in which the
ALJ “ignored” the opinion of a consulting physician. (Doc. 14, pp. 36-42). In this
case, the ALJ explicitly noted that he “considered and [gave] little weight to the
January 2013 opinion of Robert Estock, M.D., a non-examining doctor who reported
that the claimant had moderate mental limitations.”

(Tr. at 236).

The ALJ

specifically stated that the limitations reported by Dr. Estock were “inconsistent with
the weight of the evidence, including the claimant’s more recent treatment records

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and his hearing level testimony.” (Tr. at 236). Clearly, the treating physician rule
does not apply to Dr. Estock’s opinions. The ALJ explicitly considered the opinion
of this non-treating physician and gave it little weight based upon the other medical
evidence in the record and the plaintiff’s testimony at the administrative hearing. 3
In sum, the ALJ did not improperly weigh the medical evidence put before
him, and did not substitute his own opinion for any medical opinions of any treating
or consulting medical professionals. The ALJ explained the basis for his weighing
of the medical testimony.

Accordingly, the motion to remand is due to be denied.

2. The ALJ=s Assessment of Plaintiff=s Credibility
Plaintiff argues that the ALJ erred in finding his subjective complaints “not
entirely” credible because the ALJ failed to retroactively apply SSR 16-3p, which
became effective March 28, 2016, almost two years after the ALJ’s hearing. The
ALJ applied SSR 97-7p, which was in effect at the time of the claimant=s
adjudication by the ALJ, but which was superseded by SSR 16-3p. The new
regulation removes the term “credibility” from the policy, and clarifies that

3

Although Mr. Wilkerson testified that he saw a psychiatrist on one occasion for
depression, he also testified that, after the date of the onset, he ran an upholstery business with his
son, visited with friends who were restoring old cars, and was taking no medication for depression.
This testimony seems inconsistent with the opinions of Dr. Estock that the plaintiff suffered from
“moderate” limitations in his ability to follow schedule, work with others, and interact with the
public.
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“subjective symptom evaluation is not an examination of an individual’s character.”
SSR 16-3p, 2016 WL 1119029 at *1.
Since this matter was briefed, the Commissioner has filed a notice of
supplemental authority, demonstrating that the Eleventh Circuit Court of Appeals
has stated, in a published opinion, that SSR 16-3p does not apply retroactively.
(Doc. 20). Although the Commissioner cited to Hargress v. Social Security Admin.,
Comm=r, No. 17-11683, 2017 WL 5077522 (11th Cir. Nov. 6, 2017), which was
recently vacated and replaced by a new opinion, Hargress v. Social Security Admin.,
Comm'r, No. 17-11683, 2018 WL 1061567 (11th Cir. Feb. 27, 2018), the court of
appeals retained its holding, in a case brought by the same counsel as plaintiff=s
counsel at bar, that SSR 16-3p do not apply retroactively, specifically holding that
the rule Aapplies only prospectively and does not provide a basis for remand.” 2018
WL 1061567 at *5. The court further noted that even if SSR 16-3p were applied
retroactively to the ALJ’s decision, remand would not be warranted because the ALJ
“did not assess [the plaintiff=s] overall character or truthfulness, but rather ...
assessed [the plaintiff=s] subjective complaints of disabling pain and fatigue and

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concluded that they were not consistent with the other evidence in the record.” Id.
at *5 n. 3. 4
In this case, the argument relating to SSR 16-3p is unavailing both because
there is controlling authority holding that the rule is not applied retroactively and
because, even if it were, the ALJ did not examine Mr. Wilkerson=s overall character:
he merely examined the descriptions of the plaintiff=s activities, his own testimony
regarding his impairments,5 and the entire record regarding his medical treatment.
As a result, the ALJ found that the evidence was not consistent with the plaintiff’s
allegations regarding disability. The ALJ’s assessment in this case is similar to the
ALJ’s assessment that was examined in Hargress. In this case, the ALJ properly
4

At the time this matter was briefed, only the Seventh Circuit Court of Appeals had
applied SSR 16-3p retroactively. Cole v. Colvin, 2016 WL 3997246 (7th Cir. July 26, 2016).
However, courts within this district have consistently rejected the concept that the
newly-promulgated rule is applied retroactively. Judge Virginia Hopkins= decision in Ring v.
Berryhill, 2017 WL 992174 (N.D. Ala. March 15, 2017), is on appeal at the Eleventh Circuit.
Also on appeal is a case in which Judge L. Scott Coogler determined that, given the Supreme
Court=s determination that retroactivity is not favored, and in the Aabsence of any binding
precedent directing that SSR16-3p is to apply retroactively,@ the rule would not be given
retroactive application. Wood v. Berryhill, 2017 WL 1196951 (N.D. Ala. Mar. 31, 2017); see also
Naler v. Berryhill, 2017 WL 22774733, at *5 (N.D. Ala. June 27, 2017).
5

The ALJ noted that the plaintiff had executed a worker=s compensation settlement
agreement in which he stated that he had a 0% impairment rating. The ALJ further noted that the
plaintiff testified that he had built a workshop after his onset date in order to do upholstery work.
The ALJ=s reliance upon those statements, which clearly concerned the “ intensity, persistence, and
limiting effects” of the plaintiff’s symptoms, was clearly within the ALJ’s adjudicative power, and
is not similar to the case law cited by the plaintiff that limits an ALJ’s authority to consider
statements made about a subject that is separate from the subject of his ability to work.
Page 15 of 24

assessed the limitations and symptoms described by Mr. Wilkerson, and determined
the outcome in accordance with applicable law, even if that were to include the
retroactive application of SSR 16-3p. Accordingly, the motion to remand is due to
be denied as to this ground.
3. The ALJ=s Assessment of the Residual Functional Capacity
The plaintiff further asserts that the residual functional capacity assessment
must be “of a treating or examining physician.” (Doc. 14, p. 52). The plaintiff=s
argument ignores the well-settled law that the responsibility for assessing the RFC
of a claimant is a matter reserved to the ALJ. Under the regulations governing
Social Security benefits, the RFC is not a medical assessment; rather, it is “the most
[the plaintiff] can do despite [his] limitations.” 20 C.F.R. ' 404.1545(a)(1). The
RFC is based upon “all relevant medical and other evidence[] of a claimant=s
remaining ability to work despite his impairment.” Castle v. Colvin, 557 F. App=x
849, 852 (11th Cir. 2014). An RFC can be determined “even without a physician’s
assessment” in cases where the medical evidence shows “relatively little physical
impairment.” Castle, 557 F. App=x at 854. The lack of an RFC determination
from a physician or other medical source does not require reversal. See, e.g.,
Langley v. Astrue, 777 F. Supp. 2d 1250, 1253 (N.D. Ala. 2011).

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In this case, as in

Langley, there is no evidence from any of the doctors that suggest that the claimant
did not have the physical capacity to perform light work. To the contrary, his
treating doctors had released him to work at the more demanding work of driving a
truck. The ALJ=s determination of the RFC was both within the province of the
ALJ and was supported by substantial evidence.
4. The ALJ=s Evaluation of Tremors as Non-Severe
The plaintiff=s final argument relating to the ALJ=s decision is that he erred in
failing to consider the plaintiff’s tremors/spasticity as a severe impairment. As was
discussed above, the spasticity was never diagnosed. The only medical testimony
that suggests that the condition might be severe is Dr. Poczatek=s equivocal
statement that the spasticity “would” concern him that the plaintiff “might not be
safe” to work, even though Dr. Poczatek never imposed any limitation on his ability
to work.

There was no testimony that the tremors significantly affected Mr.

Wilkerson=s ability to perform work-related activities, as required by 20 C.F.R.
'' 404.1520(c), 404.1521(a). In addition, the single statement made in deposition
must be viewed in the light of the objective medical findings.

None of the

“medically acceptable clinical and laboratory diagnostic techniques” showed any
“anatomical, physiological, or psychological abnormality” that caused the tremors,

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as required by 20 C.F.R. ' 404.1508.

Nothing in the medical records revealed the

cause of the tremors, and the fact that none of the doctors, including Dr. Poczatek,
ever imposed any limitations on the plaintiff=s ability to work due to the tremors,
indicates that the condition was properly evaluated as non-severe.
Even if the condition was erroneously assessed as non-severe, however, that
error was harmless, because the ALJ found at the second step of the sequential
analysis that Mr. Wilkerson had severe impairments, so that the ALJ then considered
his entire medical condition, included both severe and non-severe impairments.
See, e.g., Burgin v. Comm=r of Soc. Sec., 420 F. App=x 901 (11th Cir. 2011). The
Eleventh Circuit Court of Appeals has stated:

Nothing requires that the ALJ must identify, at step two, all of the
impairments that should be considered severe. Instead, at step three,
the ALJ is required to demonstrate that it has considered all of the
claimant’s impairments, whether severe or not, in combination. See
id.; Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984) (explaining
that the ALJ must make “specific and well-articulated findings as to the
effect of the combination of impairments”). Here, that the ALJ did
consider all of [claimant’s] impairments (whether severe or not) in
combination is clear. The ALJ discussed in detail [claimant’s]
testimony and medical history, which included [claimant’s] pain
complaints, his limitations due to pain, and the diagnoses he received
related to his pain. See Jones v. HHS, 941 F.2d 1529, 1533 (11th Cir.
1991)(a simple expression of the ALJ's consideration of the
combination of impairments constitutes a sufficient statement of such
findings).
Page 18 of 24

Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir. 2010).
The same is true in this case. Because the ALJ found that Mr. Wilkerson had
some severe impairments, and because he evaluated the plaintiff=s medical condition
as a whole, Mr. Wilkerson is not entitled to any relief on this claim.
B. Appeals Council
The plaintiff asserts that the Appeals Council improperly failed to consider
the medical records that were submitted after the date of the ALJ=s decision. The
plaintiff argues that the Appeals Council failed to consider these submissions solely
because of the dates of the treatments, without considering whether the records were
chronologically relevant. (Doc. 14, pp. 21-30). This argument is based, primarily
if not exclusively, on the fact that the Appeals Council, in its Notice to Mr.
Wilkerson, stated that the council noted that the medical records that were submitted
from Dr. Michael Kendrick, the Gadsden Regional Medical Center, and Southside
Pain Specialists, all were dated after the July 11, 2014, ALJ’s decision.6 (Tr. at 2).
Plaintiff’s counsel argues that the Appeals Council refused to consider the new

6

The plaintiff acknowledges that other medical records submitted to the Appeals
Council after the ALJ’s decision, in fact, were in the record at the time of the decision.
Page 19 of 24

records solely because they post-dated the ALJ’s decision. The Eleventh Circuit
Court of Appeals has described the method by which additional evidence may be
submitted during the appeal of an ALJ's denial of benefits:

“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 of Soc., Sec. Admin., 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). But the Appeals Council “must consider new,
material, and chronologically relevant evidence” that the claimant
submits. Ingram, 496 F.3d at 1261; see also 20 C.F.R. '' 404.970(b),
416.1470(b).
“When the Appeals Council refuses to consider new evidence
submitted to it and denies review, that decision is ... subject to judicial
review....” Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994). The standard that federal courts apply when
reviewing the Appeals Council’s refusal to consider additional
evidence submitted by the claimant is a question of first impression in
this circuit. But our sister circuits have recognized that, under the
regulations, whether evidence meets the new, material, and
chronologically relevant standard “is a question of law subject to our de
novo review.” Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir.
2003); accord Farrell v. Astrue, 692 F.3d 767, 770B71 (7th Cir. 2012);
Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000). We agree that
when the Appeals Council erroneously refuses to consider evidence, it
commits legal error and remand is appropriate. See Farrell, 692 F.3d
at 771B72; Threet, 353 F.3d at 1191B92; Bergmann, 207 F.3d at 1071.5

Washington v. Soc. Sec. Admin., Com'r, 806 F.3d 1317, 1320B21 (11th Cir. 2015).

Page 20 of 24

Whether the evidence presented is “chronologically relevant” depends upon
whether the records “relate back to the period before the ALJ’s decision.”
Washington, 806 F.3d at 1322. Records relate back if they reflect that, in reaching
his post-decision opinion, the doctor reviewed records from the claimant’s treatment
that came before the ALJ’s decision and if those records demonstrate that the
condition or symptoms were more severe than the ALJ determined. Where the ALJ
considered “similar evidence” of the condition being treated, and there is no detail
about the nature or severity of the past history of the condition in the new records,
the records do not relate back. See Stone v. Soc. Sec. Admin., 658 F. App'x 551, 553
(11th Cir. 2016); see also Horowitz v. Comm'r of Soc. Sec., 688 F. App'x 855, 864
(11th Cir. 2017). The records are not deemed chronologically relevant simply
because they reveal that the plaintiff's symptoms worsened after the ALJ's decision.
Stone, 658 F. App'x at 554.
The Appeals Council properly found that the records from Dr. Kendrick, the
Gadsden Regional Medical Center, and Southside Pain Specialists were not
chronologically relevant. None of the records reveals that the treating physicians
examined or based their opinions on the plaintiff’s treatment history pre-dating the
ALJ’s decision. While they documented the plaintiff’s condition in later 2014 and

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during 2015, there is nothing in them that allows the inference that they shed light on
his condition prior to the ALJ’s decision. While all of the records document the
plaintiff’s back and neck pain at the time of the respective examinations, they do not
explore whether, at an earlier time, the pain was better or worst or more limiting in a
way that might have impacted the ALJ’s assessment.
Even assuming arguendo that the Appeals Council improperly failed to
consider the records that Mr. Wilkerson submitted reflecting treatment after the
ALJ's decision, the omission is error only if they records create a “reasonable
possibility that the statement in the [records submitted on appeal] would have
changed the result of the proceedings.” Stone, 658 F. App'x at 553. In this case,
Mr. Wilkerson’s records showed continued pain from the same spinal issues that the
ALJ considered severe. Even when being treated in 2014 and 2015, Mr. Wilkerson
frequently reported that his pain rated a 4 or 5 on a scale of 1 to 10, and he never
indicated that his pain on the date of his treatment rated higher than an 8. (Doc. 14,
pp. 21-23). The records, even if they were chronologically relevant, do not compel
the conclusion that the ALJ's decision would have been different had those records
been considered.7

7

The plaintiff submitted supplemental authority on November 9, 2017, to call to the
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In sum, the records that the Appeals Council found not to be chronologically
relevant were about the plaintiff’s condition at a time after the ALJ’s decision and
showed that his condition was worsening over time.

Even considering those

records, the ALJ's decision was supported by substantial evidence that the plaintiff
was not disabled during the relevant time period.

Accordingly, the Appeals

Council properly denied review because the ALJ=s decision was supported by
substantial evidence and comports with the statutes and regulations. Therefore, the
plaintiff=s claim that the Appeals Council improperly denied review is unfounded.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr.

Wilkerson’s arguments, the court concludes that the ALJ’s determination is
supported by substantial evidence and was both comprehensive and consistent with
the applicable SSA rulings. The court further concludes that the Appeals Council
court=s attention an unpublished October 2017 decision in which the Eleventh Circuit Court of
Appeals reversed and remanded a denial of benefits where the Appeals Council had refused to
consider treatment records dated after the ALJ decision. (Doc. 19)(citing and attaching Hunter v.
Soc. Sec. Admin., No. 17-11557, 2017 U.S. App. LEXIS 20102). This court finds the opinion
inapposite, because Hunter was based on records that post-dated the ALJ decision but that
specifically noted that the plaintiff=s limitations “existed back to July 2008,” her alleged onset date.
Id. at *9. This clearly made the records at issue in Hunter chronologically relevant to her claim.
Plaintiff in this case has not set forth any basis for a finding that any of the records at issue here
involved a specific statement regarding the plaintiff=s limitations prior to the ALJ decision, or even
that the medical records were based upon a review of the records that related to his condition
dating back to the alleged onset date.
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properly considered the plaintiff’s medical records. The objective medical and
other evidence supports the ALJ’s conclusion that plaintiff’s conditions did not
cause disabling limitations and instead shows that he could perform light work.
Accordingly, the Commissioner’s decision is due to be and hereby is
AFFIRMED and the action is DISMISSED WITH PREJUDICE.
DATED the 16th day of March, 2018.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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