Culwell v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 3/9/2018. (KEK)
2018 Mar-09 PM 01:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Acting Commissioner of the
Social Security Administration,
Case No.: 4:16-CV-01133-MHH
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Christy Culwell seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied Ms. Culwell’s claims for a period of disability,
disability insurance benefits, and supplemental security income. For the reasons
stated below, the Court affirms the Commissioner’s decision.1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).
Ms. Culwell filed for a period of disability, disability insurance benefits, and
supplemental security income on November 14, 2012. (Doc. 8-4, p. 2). Ms.
Culwell alleges that her disability began July 22, 2012. (Doc. 8-4, p. 2; Doc. 8-6,
pp. 2, 6). The Commissioner initially denied Ms. Culwell’s claims on January 8,
(Doc. 8-5, pp. 4-8).
Ms. Culwell requested a hearing before an
Administrative Law Judge (ALJ).
(Doc. 8-5, pp. 2-3).
The ALJ issued an
unfavorable decision on November 13, 2014. (Doc. 8-4, pp. 32-49). On May 10,
2016, the Appeals Council declined Ms. Culwell’s request for review (Doc. 8-3,
pp. 2-4), making the Commissioner’s decision final and a proper candidate for this
Court’s judicial review. See 42 U.S.C. §§ 405(g) and 1383(c).
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.
“Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”
Comm’r, Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ
follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Ms. Culwell has not engaged in substantial
gainful activity since July 22, 2012, the alleged onset date. (Doc. 8-4, p. 37). The
ALJ determined that Ms. Culwell suffers from the following severe impairments:
degenerative disc disease of the lumbar spine with disc herniation at L5,
syringomyelia at C6, fibromyalgia, depression/mood disorder, and anxiety/panic
(Doc. 8-4, p. 37).
The ALJ found that Ms. Culwell also has the
following non-severe impairments: irritable bowel syndrome; gastroesophageal
reflux disease; and osteoarthritis. (Doc. 8-4, p. 38). Based on a review of the
medical evidence, the ALJ concluded that Ms. Culwell does not have an
impairment or a combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Doc. 8-4, p. 40).
In light of Ms. Culwell’s impairments, the ALJ evaluated Ms. Culwell’s
residual functional capacity or RFC. The ALJ determined that Ms. Culwell has the
RFC to perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
that she is unable to climb ladders, ropes, or scaffolds; cannot tolerate
any exposure to hazardous, moving machinery or unprotected heights;
can occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl; requires a temperature-controlled work environment with
no more than occasional exposure to extreme cold or heat; is limited
to work that requires no more than the understanding, remembering,
and carrying out of simple instructions and has the ability to sustain
such activities for two hours at a time over an eight-hour day with no
more than the morning, afternoon, and lunch-time breaks routinely
allowed in the workplace; and can tolerate frequent changes to the
work setting but only occasional interaction with the public, coworkers, and supervisors.
(Doc. 8-4, p. 42).
Based on this RFC, the ALJ concluded that Ms. Culwell is not able to
perform her past relevant work as a maintenance supervisor. (Doc. 8-4, p. 48).
Relying on testimony from a vocational expert, the ALJ found that jobs exist in the
national economy that Ms. Culwell can perform, including bakery worker,
assembler, and marker. (Doc. 8-4, pp. 48-49). Accordingly, the ALJ determined
that Ms. Culwell has not been under a disability within the meaning of the Social
Security Act. (Doc. 8-4, p. 49).
Ms. Culwell argues that she is entitled to relief from the ALJ’s decision
because the ALJ failed to properly weigh the opinion of treating physician Dr.
John Keithan; the ALJ failed to re-contact Quality of Life to confirm the name and
title of the examiner who conducted a psychiatric evaluation of Ms. Culwell on
November 18, 2013; and the ALJ did not assess Ms. Culwell’s subjective
complaints of pain consistent with Social Security Ruling 16-3p. (Doc. 13). In
addition, Ms. Culwell asks the Court to remand pursuant to sentence six to require
the ALJ to consider a psychological evaluation that Dr. David Wilson completed
on July 18, 2016. (Doc. 12). The Court considers these arguments in turn.
Substantial Evidence Supports the ALJ’s Decision to Give Dr.
Keithan’s Opinions Little Weight.
An ALJ must give the opinion of a treating physician like Dr. Keithan
“substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (citations omitted).
Good cause exists when “(1) [the] treating physician’s opinion was not bolstered
by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the]
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Id. at 1240-41; see also Crawford, 363 F.3d at 1159 (noting a
treating physician’s report may be discounted if it is wholly conclusory or not
supported by objective medical evidence). “The ALJ must clearly articulate the
reasons for giving less weight to a treating physician’s opinion, and the failure to
do so constitutes error.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 931
(11th Cir. 2013) (citing Lewis v. Callahan, 125 F. 2d 1436, 1440 (11th Cir. 1997)).
On June 13, 2014, Dr. Keithan completed on Ms. Culwell’s behalf a
physical capacities evaluation, a clinical assessment of pain form, and an ability to
work form. (Doc. 8-11, pp. 2-4). In the physical capacities assessment, Dr.
Keithan opined that Ms. Culwell can sit, stand, and walk for a total of one hour in
an 8-hour work day. (Doc. 8-11, p. 2). Dr. Keithan opined that Ms. Culwell
occasionally can lift up to 25 pounds, and she never can lift more than 25 pounds.
(Doc. 8-11, p. 2). According to Dr. Keithan, Ms. Culwell occasionally can carry
up to 10 pounds, and she never can carry more than 10 pounds. (Doc. 8-11, p. 2).
Ms. Culwell occasionally can use her hands for simple grasping, pulling, and fine
manipulation. (Doc. 8-11, p. 2). Ms. Culwell occasionally can use her right foot
and frequently can use her left foot for pushing and pulling of leg controls. (Doc.
8-11, p. 2). Dr. Keithan concluded that Ms. Culwell occasionally can stoop,
crouch, kneel, crawl, climb, balance, and reach overhead, and she occasionally can
work around unprotected heights, hazardous machinery, marked changes in
temperature, and exposure to dust and fumes. (Doc. 8-11, p. 2). Ms. Culwell also
occasionally can drive auto equipment. (Doc. 8-11, p. 2). According to Dr.
Keithan, Ms. Culwell likely would miss more than four days of work per month
because of her impairments or treatment. (Doc. 8-11, p. 2).
In a clinical assessment of pain form, Dr. Keithan circled pre-marked
answers on a questionnaire indicating that Ms. Culwell’s pain “is present to such
an extent as to be distracting to adequate performance of daily activities,” and that
physical activity will increase Ms. Culwell’s pain “to such an extent that bed rest
and/or medication is necessary.” (Doc. 8-11, p. 3). Dr. Keithan also noted that
side effects from Ms. Culwell’s medication would totally restrict Ms. Culwell’s
ability to “function at a productive level of work.” (Doc. 8-11, p. 3).
On the ability to work form, Dr. Keithan circled “no” when asked whether
Ms. Culwell is “able to work the equivalent of eight hours a day, five days a
week.” (Doc. 8-11, p. 4). When asked about the earliest date that Ms. Culwell
became unable to work, Dr. Keithan answered, “none.” (Doc. 8-11, p. 4). Dr.
Keithan circled “yes” when asked whether Ms. Culwell’s conditions are expected
to last for at least 12 months. (Doc. 8-11, p. 4). On the form, Dr. Keithan provided
the following additional information:
[Ms. Culwell] has multiple medical conditions that have lasting
debilitating effects. She has daily pain that limits her physical
activities. The patient can no longer perform job duties or daily living
activities such as walking long distances or standing for long periods
(Doc. 8-11, p. 4).
The ALJ assigned little weight to Dr. Keithan’s opinions. (Doc. 8-4, p. 47).
The ALJ explained:
Although Dr. Keithan has provided his office notes, those notes
document few findings on examination other than [Ms. Culwell’s]
vital signs. Detailed records from other providers are inconsistent
with the severity of physical limitations and pain [Dr. Keithan’s]
responses indicate as well as his opinion regarding [Ms. Culwell’s]
(Doc. 8-11, p. 47).
A few treatment notes support Dr. Keithan’s opinions. For example, in May
2011, Dr. Keithan referred Ms. Culwell to rheumatologist Dr. Vishla Chindalore.
(Doc. 8-9, p. 66). Dr. Chindalore found that all of Ms. Culwell’s fibromyalgia
trigger points were positive, and Ms. Culwell had limited range of motion in
multiple joints, and her back had some spasms. (Doc. 8-9, p. 66).
2012, Dr. Charles Bell examined Ms. Culwell and stated that “[d]ue to rheumatic
symptoms [Ms. Culwell] is having difficulty working.” (Doc. 8-8, p. 4). On
examination, Ms. Culwell’s elbows were tender, and Dr. Bell found right bicipital
tendinis and left knee crepitus. (Doc. 8-8, p. 5). In the months following a car
accident in July 2012, Ms. Culwell experienced tenderness, and doctors treated her
for hip pain, neck pain, back pain, and post-concussion syndrome. (Doc. 8-8, pp.
44-52; Doc. 8-9, pp. 5-6, 19-29, 44-45).
On the whole, though, the medical evidence does not support Dr. Keithan’s
opinions. During a number of visits with Dr. Chindalore in May, August, and
October 2011, Ms. Culwell had positive fibromyalgia tender points, but her hands,
wrists, elbows, shoulders, ankles, knees, and hips had good range of motion. (Doc.
8-9, p. 65; Doc. 8-10, pp. 4-5). In October 2012, Ms. Culwell’s neurologist, Dr.
James White, stated that Ms. Culwell should be off work for one month. (Doc. 89, p. 51). Dr. White estimated that Ms. Culwell could return to work on November
27, 2012. (Doc. 8-9, p. 51). When Ms. Culwell saw Dr. White on November 26,
2012, she complained that she was “hurting worse down her back and right lower
extremity.” (Doc. 8-9, p. 17). Dr. White suggested that surgery could repair Ms.
Culwell’s herniated disc, but Ms. Culwell told Dr. White that “she d[id] not want
anything repaired at this point.” (Doc. 8-9, p. 17). Dr. White stated that he could
refer Ms. Culwell to pain management, but Ms. Culwell responded that she
“want[ed] no intervention.” (Doc. 8-9, p. 17). Dr. White released Ms. Culwell
from care and advised her to return as needed. (Doc. 8-9, p. 17).
Other treatment notes suggest that by the fall of 2012, Ms. Culwell was
recovering from the injuries that she had sustained in the July 2012 car accident.
When she reported to the emergency room at Gadsden Regional Medical Center on
October 4, 2012, Ms. Culwell complained of chest pain, but she denied
musculoskeletal pain. (Doc. 8-8, p. 19). A musculoskeletal exam revealed normal
range of motion and no swelling, deformities, cyanosis, clubbing, or edema. (Doc.
8-8, p. 19).
In October 2013, when Ms. Culwell saw a nurse practitioner at Quality of
Life, Ms. Culwell recently had traveled out of state. (Doc. 8-10, p. 43). Ms.
Culwell had tender points in certain regions, but she rated her pain as a zero out of
10, and a musculoskeletal examination revealed normal range of motion, muscle
strength, and stability in all extremities with no pain on inspection. (Doc. 8-10, pp.
44-45). In March 2014, Ms. Culwell visited Quality of Life and complained of
shoulder pain that had lasted about two or three months, but a musculoskeletal
examination was benign. In addition, the nurse practitioner recommended regular
exercise. (Doc. 8-10, pp. 54, 57).
Dr. Keithan’s opinions are not supported by objective medical findings in
his treatment notes. The record contains 11 treatment notes from Ms. Culwell’s
visits with Dr. Keithan between July 26, 2012 and June 12, 2014. (Doc. 8-9, pp.
36-37, 43-45, 61; Doc. 8-11, pp. 5-6, 10, 14, 18).2 Although Dr. Keithan reviewed
Ms. Culwell’s symptoms and provided some diagnoses, Dr. Keithan did not
document physical examination findings. (Doc. 8-9, pp. 36-37, 43-45, 61; Doc. 811, pp. 5-6, 10, 14, 18). In addition, on the forms that he completed on Ms.
Culwell’s behalf, Dr. Keithan did not cite objective medical findings or a specific
diagnosis to support his opinions. (Doc. 8-11, pp. 2-4).
The Court finds that substantial evidence supports the ALJ’s decision to give
Dr. Keithan’s opinions little weight. See e.g., Reynolds-Buckley v. Comm’r of Soc.
Sec., 457 Fed. Appx. 862, 864 (11th Cir. 2012) (substantial evidence supported the
ALJ’s decision to give less weight to a treating physician’s opinion when the
doctor’s opinion was “inconsistent with the medical evidence on record and was
not supported by any treatment notes or by an analysis of any test results.”); Roth
The record indicates that Dr. Keithan has treated Ms. Culwell since at least 2011 (see Doc. 8-9,
pp. 66, 83), but the first treatment note that appears in the record is one from a visit on July 26,
2012 (Doc. 8-9, p. 45).
v. Astrue, 249 Fed. Appx. 167, 168 (11th Cir. 2007) (finding that substantial
evidence supported the ALJ’s determination that the treating physician’s opinion
“should not be assigned substantial weight because it was inconsistent with the
record as a whole and not supported by the doctor’s own medical records.”).
Based on the applicable legal standard, the Court must accept the weight that the
ALJ assigned to Dr. Keithan’s assessments, even though there is some evidence in
the record that supports those assessments. See Lawton v. Comm’r of Soc. Sec.,
431 Fed. Appx. 830, 833 (11th Cir. 2011) (“While the record does contain some
evidence that is contrary to the ALJ’s determination, we are not permitted to
reweigh the importance attributed to the medical evidence.”).
The ALJ Did Not Err by Failing to Re-Contact Quality of Life to
Confirm the Name of the Provider who Conducted a Psychiatric
Evaluation of Ms. Culwell on November 18, 2013.
On November 18, 2013, a provider at Quality of Life evaluated Ms. Culwell.
(Doc. 8-10, pp. 50-53). The electronic signature line on the November 18, 2013
report states “Management Case” and does not provide the name or title of the
(Doc. 8-10, p. 53).
In reviewing the opinion evidence in the
administrative record, the ALJ assigned no weight to the opinions contained in the
November 18, 2013 Quality of Life report or the corresponding GAF score of 50.
(Doc. 8-4, p. 47). The ALJ stated:
Because the report of evaluation reflects no signature and Quality of
Life records provide no information regarding the examiner, the
undersigned is unable to determine the author’s qualifications or
expertise. The severity of impairment suggested by the GAF score is
also inconsistent with the mental status examination results recorded
and with Dr. [Benjamin] Carr’s longitudinal records.
(Doc. 8-4, p. 47).
The Court is not persuaded by Ms. Culwell’s argument that the regulations
required the ALJ to re-contact Quality of Life to confirm whether a psychiatrist
performed the November 18, 2013 evaluation. As Ms. Culwell acknowledges in
her reply brief (see Doc. 19, pp. 7-9), the regulations that were in effect when the
ALJ issued his decision permitted, but did not require, an ALJ to seek clarification
from a medical source. The relevant regulation states:
If the evidence is consistent but we have insufficient evidence to
determine whether you are disabled, or if after weighing the evidence
we determine we cannot reach a conclusion about whether you are
disabled, we will determine the best way to resolve the inconsistency
or insufficiency. The action(s) we take will depend on the nature of
the inconsistency or insufficiency. We will try to resolve the
inconsistency or insufficiency by taking any one or more of the
actions listed in paragraphs (c)(1) through (c)(4) of this section. We
might not take all of the actions listed below. We will consider any
additional evidence we receive together with the evidence we already
(1) We may recontact your treating physician, psychologist, or other
medical source. We may choose not to seek additional evidence or
clarification from a medical source if we know from experience that
the source either cannot or will not provide the necessary evidence.
If we obtain medical evidence over the telephone, we will send the
telephone report to the source for review, signature, and return;
20 C.F.R. §§ 404.1520b(c)(1) and 416.920b(c)(1) (effective March 26, 2012 until
March 27, 2017). The regulations require an ALJ to re-contact a treating source
only if the record is insufficient for the ALJ to make a disability determination. In
this case, re-contacting Quality of Life to determine the name and title of the
examiner who evaluated Ms. Culwell on November 18, 2013 was unnecessary
because the ALJ was able to ascertain the basis of the provider’s opinion, and
sufficient evidence existed in the record for the ALJ to make a disability
Most of the mental status examination findings in the Quality of Life
psychological evaluation suggest that Ms. Culwell’s mental impairments do not
preclude all work. The report states that Ms. Culwell was oriented to person,
place, time, and situation.
Her behavior and psychomotor behaviors were
unremarkable. Ms. Culwell’s memory was intact. Her reasoning, impulse control,
judgment, and insight were fair. (Doc. 8-10, p. 52). Ms. Culwell’s self-perception
was realistic; her thought processes were logical; and her thought content was
unremarkable. (Doc. 8-10, p. 53). These findings are consistent with the ALJ’s
During the examination on November 18, 2013, Ms. Culwell stated that she
“often thinks of suicide but has no plan or intent.” (Doc. 8-10, p. 53). This
statement is inconsistent with Dr. Carr’s treatment of Ms. Culwell. Ms. Culwell
saw Dr. Carr for mental health treatment approximately 20 times between May
2011 and February 2014. During only one of these visits did Ms. Culwell describe
suicidal ideas. (Doc. 8-9, p. 81). During all other visits, including ones just
several days before and after the November 18, 2013 psychiatric examination at
Quality of Life, Ms. Culwell denied suicidal ideas or intentions. (Doc. 8-9, pp. 70,
72, 75, 77, 79, 83, 85, 87, 89, 91, 93, 94-96, 98; Doc. 8-10, pp. 27, 29, 31, 33, 35).
In addition, as the ALJ explained, Dr. Carr’s treatment notes
reflect occasional exacerbations [of Ms. Culwell’s mood disorder]
associated with specific events such as the dissolution of her marriage,
the [motor vehicle accident], financial problems, the loss of her job,
etc., [but] they also indicate that [Ms. Culwell] responded positively
to treatment and that such setbacks were temporary. Overall, his
mental status examinations found [Ms. Culwell] to be friendly
cooperative with normal speech, normal psychomotor activity, and
linear and goal-directed thought processes. [Ms. Culwell’s] cognition
remained grossly intact and she was able to maintain attention
normally. Her insight and judgment were consistently intact as well.
(Doc. 8-4, p. 46; Compare Doc. 8-9, pp. 70-99; Doc. 8-10, pp. 27-36).
During the November 18, 2013 evaluation, the Quality of Life provider
assigned a GAF score of 50 and diagnosed Ms. Culwell with chronic depression,
recurrent generalized anxiety disorder, and recurrent panic disorder. (Doc. 8-10, p.
53).3 With respect to the assigned GAF score of 50, the GAF scale “‘does not have
“GAF is a standard measurement of an individual’s overall functioning level ‘with respect only
to psychological, social and occupational functioning.’” Lacina v. Comm’r, Soc. Sec. Admin.,
606 Fed. Appx. 520, 523 n.2 (11th Cir. 2015) (quoting American Psychiatric Association
Diagnostic and Statistical Manual of Mental Disorders, at 32 (4th ed. 1994) (DSM-IV)).
a direct correlation to the severity requirements in [the Social Security
Administration] mental disorders listings.’” Nye v. Comm’r of Soc. Sec., 524 Fed.
Appx. 538, 545 (11th Cir. 2013) (citing 65 Fed. Reg. at 50765-65). The ALJ
accounted for the diagnoses of chronic depression, recurrent generalized anxiety
disorder, and recurrent panic disorder because the ALJ found that Ms. Culwell
suffers from severe impairments of depression/mood disorder and anxiety/panic
disorder. (Doc. 8-4, p. 37). The ALJ also accounted for these diagnoses when, in
his RFC assessment, the ALJ limited Ms. Culwell to work that requires no more
than understanding, remembering, and carrying out simple instructions and only
occasional interaction with the public, co-workers, and supervisors. (Doc. 8-4, p.
The regulations did not require the ALJ to re-contact Quality of Life, and
Ms. Culwell has not demonstrated that the ALJ’s failure to do so prejudiced her
claim because there is no evidence that the ALJ would have changed his analysis
had he known that the Quality of Life examiner was a psychiatrist. Accordingly,
Ms. Culwell is not entitled to relief. See Graham v. Apfel, 129 F.3d 1420, 1423
(11th Cir. 1997) (an ALJ has a duty to develop a full and fair record, “[h]owever
there must be a showing of prejudice before it is found that the claimant’s right to
due process has been violated to such a degree that the case must be remanded to
the [Commissioner] for further development of the record.”); see also Prince v.
Comm’r, Soc. Sec. Admin., 551 Fed. Appx. 967, 972 (11th Cir. 2014) (“Treating
physicians should be re-contacted when the evidence from that physician is
insufficient to determine whether the claimant is disabled,” and remand is
necessary only when the claimant demonstrates “evidentiary gaps that resulted in
unfairness or clear prejudice.”).
SSR 16-3p Does Not Require Remand.
Ms. Culwell asks the Court to remand this case so that the ALJ may
reconsider her subjective complaints of pain in light of Social Security Ruling 163p. SSR 16-3p became effective on March 28, 2016. The ruling updates the
criteria that an ALJ must use to evaluate a claimant’s subjective complaints of
pain. Ms. Culwell argues that SSR 16-3p should apply retroactively to the ALJ’s
November 13, 2014 decision.
Ms. Culwell’s argument is not persuasive in light of a recent published
decision from the Eleventh Circuit Court of Appeals.
Hargress v. Soc. Sec.
Admin., Comm’r., --- F.3d ----, 2018 WL 1061567 (11th Cir. Feb. 27, 2018). In
Hargress, a claimant argued that the district court should remand her case because
the ALJ did not evaluate the intensity, persistence, and limiting effects of her
symptoms pursuant to SSR 16-3p. Hargress, 2018 WL 1061567 at *4. The
Eleventh Circuit disagreed, explaining:
SSR 16-3p rescinded SSR 96-7p, which provided guidance on how to
evaluate the credibility of a claimant’s statements about subjective
symptoms like pain. See SSR 16-3p, 81 Fed. Reg. 14166, 14167
(March 9, 2016); SSR 96-7p, 61 Fed. Reg. 34,483 (June 7, 1996). The
new ruling eliminated the use of the term “credibility” in the subregulatory policy and stressed that when evaluating a claimant’s
symptoms the adjudicator will “not assess an individual’s overall
character or truthfulness” but instead “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 activities. . . .” SSR 163p, 81 Fed. Reg. 14166, 14171. SSR 16-3p further explains that
adjudicators will consider whether the “individual’s statements about
the intensity, persistence, and limiting effects of symptoms are
consistent with the objective medical evidence and other evidence of
record.” Id. at 14170.
Hargress, 2018 WL 1061567 at *4.
The Court noted that the claimant in Hargress cited no binding authority for
the proposition that SSR 16-3p should apply retroactively. Hargress, 2018 WL
1061567 at *5. The Court continued:
Moreover, the U.S. Supreme Court has held that administrative rules
generally are not applied retroactively. See Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208, 109 S. Ct. 468, 471 (1988)
(“Retroactivity is not favored in the law. . . . and administrative rules
will not be construed to have retroactive effect unless their language
requires this result.”). SSR 16-3p contains no language suggesting,
much less requiring, retroactive application. Indeed, SSR 16-3p
explicitly states that it became effective on March 28, 2016, which
“actually points the other way.” See Sierra Club v. Tenn. Valley Auth.,
430 F.3d 1337, 1351 (11th Cir. 2005) (declining to apply state agency
rule retroactively where the rule expressly provided an effective date,
explaining that “[t]here is no point in specifying an effective date if a
provision is to be applied retroactively”). Thus, SSR 16-3p applies
only prospectively and does not provide a basis for remand.
Hargress, 2018 WL 1061567 at *5; see also Green v. Comm’r of Soc. Sec., 695
Fed. Appx. 516, 521 (11th Cir. 2017) (“Because SSR 16–3p does not specify that it
applies retroactively, and [the claimant] has not provided any authority showing
that it applies retroactively, we decline to apply that standard here.”).
Consistent with Hargress, the Court finds that SSR-16-3p does not apply
retroactively to the ALJ’s November 13, 2014 decision in this case.
Dr. Wilson’s July 2016 Evaluation Does Not Require Remand.
Ms. Culwell contends that a July 2016 psychological evaluation from Dr.
Wilson requires remand under sentence six. (Doc. 29). To demonstrate that
remand is appropriate pursuant to sentence six, Ms. Culwell must show that: “(1)
there is new, noncumulative evidence; (2) the evidence is ‘material,’ that is,
relevant and probative so there is a reasonable possibility that it would change the
administrative result; and (3) there is good cause for the failure to submit the
evidence at the administrative level.” Vega v. Comm’r of Soc. Sec., 265 F.3d 1214,
1218 (11th Cir. 2001) (internal quotation marks and citation omitted); see also
Couch v. Astrue, 267 Fed. Appx. 853, 857 (11th Cir. 2008) (“A remand under
sentence six is “‘appropriate when the district court learns of evidence not in
existence or available to the claimant at the time of the administrative proceeding
that might have changed the outcome of that proceeding.’”) (quoting Ingram, 496
F.3d at 1261).
Dr. Wilson’s July 2016 evaluation is new, and Ms. Culwell has shown good
cause for not submitting the evidence at the administrative level because the
evaluation was not available before the conclusion of the administrative
proceedings. See Magill v. Comm’r of Soc. Sec., 147 Fed. Appx. 92, 96 (11th Cir.
2005). However, the Court finds that the new evidence does not require remand
because Ms. Culwell has not shown that the evidence is material. “Evidence is
‘material’ when it is ‘relevant and probative so that there is a reasonable possibility
that it would change the administrative result.’” Stone v. Soc. Sec. Admin., 658
Fed. Appx. 551, 553 (11th Cir. 2016) (quoting Milano v. Bowen, 809 F.2d 763,
As part of his July 18, 2016 evaluation, Dr. Wilson reviewed Ms. Culwell’s
medical, personal, educational, and occupational history. (Doc. 12-1, pp. 1-3).
After a mental status interview and examination, Dr. Wilson summarized his
findings as follows:
Ms. Culwell presented as a highly depressed and anxious individual
who has even more serious problems since she was rear-ended and
sustained a head injury in 2012. She does appear to have some
cognitive issues with problems thinking clearly, and she has severe
problems with her short term memory and working memory. She
cannot afford to be on medication that she needs and this has caused
her level of functioning to deteriorate even more. Her ability to
withstand the pressures of day to day occupational functioning is
highly impaired. She would not be able to handle the interpersonal
tasks involved in any job. It is highly unlikely that her condition will
improve in the next 12 months.
(Doc. 12-1, p. 5).
Ms. Culwell maintains that Dr. Wilson’s July 18, 2016 report “shows a
diagnosis of major depressive order, recurrent (severe) and panic disorder.” (Doc.
12, p. 1; see Doc. 12-1, p. 5). Diagnoses alone do not indicate limitations on a
claimant’s ability to work. See Moore v. Barnhart, 405 F.3d 1208, 1213 n. 6 (11th
Cir. 2005) (“[T]he mere existence of  impairments does not reveal the extent to
which they limit [a claimant’s] ability to work. . . .”); see also Osborn v. Barnhart,
194 Fed. Appx. 654, 667 (11th Cir. 2006) (diagnosis alone does not indicate
limitations on claimant’s ability to work which is “a requisite to a finding of
disability”). Of course, Dr. Wilson did not merely provide a diagnosis; he opined
that Ms. Culwell’s “ability to withstand the pressures of day to day occupational
functioning is highly impaired. She would not be able to handle the interpersonal
tasks involved in any job.” (Doc. 12-1, p. 5).
Although Ms. Culwell’s attorney secured Dr. Wilson’s evaluation after the
ALJ gave no weight to the November 2013 Quality of Life psychiatric assessment
(Doc. 18, pp. 2-3), the record contains other evidence of Ms. Culwell’s mental
condition during the relevant period (see Doc. 8-9, pp. 70-99; Doc. 8-10, pp. 2736, 50-53). And Dr. Wilson’s evaluation, which took place 20 months after the
ALJ’s November 12, 2014 decision, indicates that Ms. Culwell’s depression and
panic disorder deteriorated over time. Although Dr. Wilson attributes some of the
deterioration to a car accident in 2012, a time that pre-dates the ALJ’s decision, Dr.
Wilson also attributes some of the deterioration to Ms. Culwell’s inability to afford
some of her medication, a situation that seemed to evolve after the ALJ issued his
opinion. Thus, it is difficult to discern from Dr. Wilson’s report the extent to
which Ms. Culwell’s severe impairments worsened after the ALJ issued his
Therefore, Dr. Wilson’s July 2016 report does not reflect “the extent of [Ms.
Culwell’s] disability prior to the [ALJ’s] decision, which was well-documented
through other medical evidence.” See Gallina v. Comm’r of Soc. Sec., 202 Fed.
Appx. 387, 389 (11th Cir. 2006); see also Hearings, Appeals, and Litigation Law
Manual for the Social Security Administration, I–3–3–6(B) (“Evidence is not
related to the period at issue when the evidence shows . . . [a] worsening or the
condition or onset of a new condition after the date of the ALJ decision.”).
Accordingly, Ms. Culwell’s new evidence does not provide a reasonable
possibility that the ALJ would change his decision regarding the period of time that
the ALJ considered.
For the reasons discussed above, the Court finds that substantial evidence
supports the ALJ’s decision, and the ALJ applied proper legal standards. The
Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner. Accordingly, the Court affirms the Commissioner’s decision. The
Court will enter a separate final judgment consistent with this memorandum
DONE and ORDERED this March 9, 2018.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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