Spears v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/29/2017. (PSM)

FILED
2017 Sep-29 AM 09:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DAVID SPEARS,
Plaintiff,
vs.
NANCY BERRYHILL,
Commissioner of Social Security,
Defendant.

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4:16-cv-01248-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, David Spears, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying his applications
for a period of disability, Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”).

Mr. Spears 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).
Mr. Spears was fifty-one years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has an eighth grade education. (Tr. at 261-62.)
His past work experiences include employment as a truck driver and roofer. (Tr. at
217.) Mr. Spears claims that he became disabled on August 20, 2013, due to
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bilateral shoulder degenerative joint disease, chronic obstructive pulmonary disease
(“COPD”), high blood pressure, irregular heartbeat, depression, chronic
bronchitis, and osteoarthritis in the knees. (Tr. at 78.)
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.
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

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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
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.

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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 found that Mr. Spears
met the insured status requirements of the Social Security Act through December
1, 2014. (Tr. at 37.) He further determined that Mr. Spears has not engaged in
SGA since the alleged onset of his disability. (Id.) According to the ALJ, the
plaintiff’s bilateral shoulder degenerative joint disease, left knee osteoarthritis,
hypertension, cervical degenerative disk disease, and COPD are considered
“severe” based on the requirements set forth in the regulations. (Id.) However, he
found that these impairments neither meet nor medically equal any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 41.) The ALJ
did not find Mr. Spears’s allegations to be totally credible, and he determined that
Mr. Spears has the following RFC:
to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b) except with no more than occasional pushing and pulling
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with the upper and lower extremities; no climbing of ladders, ropes, or
scaffolds; no more than infrequent balancing; no more than occasional
kneeling, crouching, and crawling; no more than occasional overhead
reaching bilaterally; no more than occasional work in environments
involving exposure to extreme cold; no work with hazardous
machinery or unprotected heights; and no more than occasional
exposure to pulmonary irritants.
(Id.)
According to the ALJ, Mr. Spears is unable to perform any of his past
relevant work, is “closely approaching advanced age,” and has a “limited
education,” as those terms are defined by the regulations. (Tr. at 44.) The ALJ
determined that transferability of job skills was not an issue because Mr. Spears
does not have past relevant work. (Tr. at 45.) Because Mr. Spears cannot perform
the full range of light work, the ALJ enlisted a Vocational Expert (“VE”) and used
Medical-Vocational Rule 202.10 as a guideline for finding that there are a
significant number of jobs in the national economy that Mr. Spears is capable of
performing, such as sorter, electrical accessories assembler, and small parts
assembler. (Id.) The ALJ ultimately concluded that the plaintiff was not disabled
from August 20, 2013, through the date of the decision. (Tr. at 46.)
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

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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

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)).

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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
Mr. Spears alleges that the ALJ’s decision should be reversed and remanded

for four reasons. 1 First, he contends that the ALJ’s RFC finding is conclusory and
violates Social Security Ruling (“SSR”) 96-8a. Second, he argues that the ALJ
erred in finding his subjective complaints of pain not credible and asserts that SSR
16-3p, which became effective on March 28, 2016, should have been applied.
Third, he contends that the ALJ erred in failing to apply Grid Rule 201.11 to direct
a finding of disabled at step five. Fourth, he argues that the Appeals Council
refused to review new evidence he 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.

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The Court has combined some of Plaintiff’s arguments.
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A.

RFC Determination and SSR 96-8a

The RFC is the ALJ’s assessment of the most a claimant can do despite his
impairments based on all of the relevant medical and other evidence. See 20 C.F.R.
§§ 404.1545(a)(1), (3), 416.945(a)(1), (3). SSR 96-8p provides that an RFC
assessment must identify an individual’s functional limitations and assess his workrelated abilities on a function-by-function basis prior to expressing the RFC in
terms of general exertional levels. See SSR 96-8p, 1996 WL 374184, at *3. SSR 968p also requires that the RFC assessment “include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts
(e.g. laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” See id.
Plaintiff quarrels with the ALJ’s RFC finding in several respects. First,
Plaintiff claims that “there is no medical evidence that claimant’s conditions of
asthma and COPD can withstand exposure to pulmonary irritants for 3 hours out of
an 8 hour day.” (Doc. 13 at 6.) However, objective medical evidence in the record
supports the ALJ’s determination that Plaintiff can occasionally withstand
pulmonary irritants. For example, Plaintiff underwent a pulmonary function
analysis at Riverview Regional Medical Center in March 2014 and had a “forced
expiratory volume” of 3.46 and was discharged with no complications. (Tr. at 43,

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366). Records from Quality of Life Health Center noted Plaintiff had normal
respiratory effort and his lungs were clear to auscultation. (Tr. at 43-44, 297, 374,
379). Although Plaintiff reported having to perform emergency breathing
treatments once or twice per week, when seen at Quality of Life Health Services in
March 2014, Plaintiff reported he had not used an inhaler in months. (Tr. at 44,
376).
Plaintiff also takes issue with the RFC allowing him to push and pull with
upper extremities as well as bilateral reach for 3 out of 8 hours during a typical
workday, pointing out that he had shoulder surgery. However, the ALJ noted that
Plaintiff had shoulder surgery and was treated for back pain. (Tr. at 43, 351-52, 372,
375-76, 379). The ALJ also noted that a June 2013 shoulder x-ray revealed only mild
acromioclavicular and glenohumeral degenerative changes. (Tr. at 43, 345, 347).
Further, x-ray imaging of Plaintiff’s cervical spine showed normal alignment in the
cervical spine and only mild degenerative changes from C4 to C6. (Tr. at 43, 345,
347). Additionally, Dr. Veluz, a consultative examiner who examined Plaintiff in
December 2013, found that Plaintiff had 5/5 motor strength in both his upper and
lower extremities. (Tr. at 43, 352.) Substantial evidence supports this portion of the
ALJ’s RFC determination.

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Plaintiff also finds fault with the RFC allowing him to kneel, crouch, and
crawl for 3 out of 8 hours in a typical workday, pointing out that he has complained
of knee pain and that he was found to have a limited range of motion in his hips and
knees. However, the ALJ noted that Dr. Veluz’s December 2013 consultative
examination report showed Plaintiff had 5/5 motor strength in both upper and
lower extremities, and he had only mild swelling of the knees and mild paracervical
and paralumbar tenderness. (Tr. at 43, 353). In addition, Plaintiff was ambulatory
and did not need an assistive device at that examination. (Tr. at 43, 351, 353, 375).
In sum, Plaintiff has not demonstrated error by the ALJ that requires reversal on
this issue.
Finally, Plaintiff argues that the RFC is not supported by substantial
evidence because there was no opinion from a physician matching the limitations in
the ALJ’s RFC finding. However, Plaintiff points to no binding authority stating
that a medical source statement is required. To the contrary, an RFC
determination is an administrative determination reserved to the Commissioner,
and is not a medical assessment. See 20 C.F.R. §§ 404.1527(d), 404.1546,
416.927(d), 416.946; SSR 96-5p, 1996 WL 374183. The assessment of a claimant’s
RFC is based on all the relevant evidence and not simply on a doctor’s opinion. See
id. §§ 404.1545(a)(3), 404.1546(c), 416.945(a)(3), 416.946(c); SSR 96-5p, 1996 WL

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374183, at *5. Although physicians’ opinions about what a claimant can still do are
relevant evidence, such opinions are not determinative because the ALJ has the
responsibility of assessing the claimant’s RFC. See id. §§ 404.1512(b)(2),
404.1513(b)(6), 404.1527(d)(2), 404.1545(a)(3), 404.1546(c); Beegle v. Soc. Sec.
Admin., Comm’r, 482 F. App’x 483, 486 (11th Cir. 2012) (“A claimant’s [RFC] is a
matter reserved for the ALJ’s determination, and while a physician’s opinion on
the matter will be considered, it is not dispositive.”) (citing 20 C.F.R. §
404.1527(d)(2)). As such, the Court finds no error in the ALJ’s RFC
determination.
B.

Credibility Determination and SSR 16-3p

Plaintiff contends that the ALJ erred in evaluating his credibility under SSR
16-3p, which became effective on March 28, 2016. Plaintiff argues that this rule
modification is retroactive and the case should be remanded for the ALJ to consider
it.
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
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

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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
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).

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Plaintiff asserts that even though SSR 16-3p was not adopted until after his
case was decided in January 2015, 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. He 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
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.

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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 January 2015 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
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

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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 his subjective complaints, he
must provide evidence of an underlying medical condition and either objective
medical evidence confirming the severity of his alleged symptoms or evidence
establishing that his medical condition could be reasonably expected to give rise to
his 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 confirm
the severity of the claimant’s alleged symptoms but the claimant establishes that he
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

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alleged symptoms and their effect on his 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).
In this case, the ALJ’s decision reveals that he properly assessed Plaintiff’s
subjective complaints of pain. Plaintiff alleged he could not work due to rotator cuff
problems in his shoulders, lower back problems, and left knee problems. (Tr. at 42,
60-61). The ALJ properly noted that the objective medical evidence did not
support the level of limitation alleged by Plaintiff. (Tr. at 43). See 20 C.F.R. §§
404.1529(c)(2), 416.929(c)(2) (noting objective medical evidence is a useful
indicator in assessing the severity of alleged symptoms). Plaintiff’s June 2013
shoulder x-ray showed only mild acromioclavicular and glenohumeral degenerative
changes. (Tr. at 43, 345). In December 2013, consultative examiner Dr. Veluz
noted Plaintiff had 5/5 motor strength in both his upper and lower extremities;

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mild swelling in the knee; mild paracervical and paralumbar tenderness; and intact
fine and gross motor functions. (Tr. at 43, 353). The April 2014 Quality of Life
office note showed Plaintiff had normal mobility and curvature of the neck, without
any tenderness, and moderate pain with motion in the lower back. (Tr. at 43, 375).
Plaintiff was ambulatory and did not need an assistive device, though he walked
with a limp. (Tr. at 43, 375).
The medical evidence also does not support Plaintiff’s allegations of
disabling mental symptoms. Plaintiff emphasizes that he received a Global
Assessment of Functioning (“GAF”) score of 53 2 in May 2014; he reported panic
attacks on visits to Quality of Life Health Services in August 2012, March 2014,
May 2014, and June 2014, and he has been prescribed medication for anxiety and
depression. However, the ALJ took note of the fact that in January 2014,
consultative psychological examiner Dr. Summerlin evaluated Plaintiff and noted
that he was oriented to person, place, time, and circumstance. (Tr. at 38, 362). He
demonstrated adequate attention and concentration, intact remote memory
functioning, moderately blunted affect, and logical, coherent, and focused thought
processes. (Tr. at 38, 362). His general information, computational skills,
A GAF score of 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or
school functioning (e.g., few friends, unable to keep a job).” Diagnostic and Statistical Manual of
Mental Disorders, 4th Edition, American Psychiatric Association, 1994, at 32–4.
2

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vocabulary, and social judgment were consistent with his chronological age,
education background, and estimated IQ, which was in the low average range. (Tr.
at 362). Additionally, during the April 2014 Quality of Life individual therapy
session, Plaintiff had an appropriate appearance, unremarkable psychomotor
behavior, pressured speech, appropriate affect, euthymic mood, average intellect,
cooperative attitude, gained attention, realistic self-perception, logical thought
processes, and unremarkable thought content. (Tr. at 400). In the June 2014
session, Plaintiff showed appropriate affect, gained and maintained attention, fair
reasoning, fair impulse control, fair judgment, fair insight, logical thought
processes, and unremarkable thought content. (Tr. at 39, 394). The ALJ also
acknowledged Plaintiff’s GAF score of 53 in May 2014, reflecting moderate
symptoms, but also noted that Plaintiff had only one mental health session prior to
January 2014. (Tr. at 39-40, 396). See 20 C.F.R. §§ 404.1529(c)(3)(v),
416.929(c)(3)(v) (noting Commissioner will consider treatment, other than
medication, a claimant received for relief of pain or other symptoms). Indeed, the
only mental health session Plaintiff underwent prior to January 2014 was an initial
psychiatric evaluation with Cathy Keel in August 2012. (Tr. at 291-93). The
January 23, 2013, Quality of Life office note indicated that Plaintiff was instructed
to contact Ms. Keel so he could obtain an appointment with Ms. Brunson. (Tr. at

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298). However, the record does not reflect evidence of a follow-up mental health
session prior to January 2014.
Further, Plaintiff’s own reported activities of daily living further support the
ALJ’s determination that Plaintiff’s testimony regarding his impairments was not
entirely credible. While the ability to engage in daily living activities does not
disqualify a claimant from receiving disability benefits, the ALJ may properly
consider a claimant’s daily activities, among other evidence, in determining
whether a claimant is entitled to disability benefits. See Majkut v. Comm’r of Soc.
Sec., 394 F. App’x 660, 663 (11th Cir. 2010) (citations omitted); see also 20 C.F.R.
§§ 404.1529(c)(3)(i), 416.929(c)(3)(i); SSR 96-7p, 1996 WL 374186, at *3. As the
ALJ discussed, Plaintiff reported he could bathe, dress, and groom himself without
assistance. (Tr. at 40, 362). He reported he could perform light yard work duties
and simple home repairs, and take care of his dog. (Tr. at 40, 208, 362). He could
also talk on the telephone, drive a vehicle, shop, visit with family members, watch
television, and listen to music. (Tr. at 362). State agency psychological consultant
Steven Dobbs, Ph.D., noted Plaintiff had no limitations in activities of daily living.
(Tr. at 40, 85). Thus, the ALJ properly determined Plaintiff’s subjective
complaints were less than fully supported.

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In sum, the ALJ properly assessed Plaintiff’s subjective complaints. Plaintiff
failed to show that the ALJ’s evaluation of his alleged symptoms did not comply
with the policy clarifications contained in SSR 96-7p or SSR 16-3p.
C.

Failure to Apply Grid Rule 201.11 to Direct a Finding of Disabled

There are two avenues by which the ALJ may determine whether a claimant
has the ability to adjust to other work in the national economy at step five of the
sequential evaluation process. See Phillips, 357 F.3d at 1239. First, the ALJ may
apply the Medical Vocational Guidelines, commonly known as “the grids,” found
in 20 C.F.R. § 404, subpart P, appendix 2. Second, the ALJ may consult a VE by
posing hypothetical questions to the VE to establish whether someone with the
claimant’s impairments would be able to find employment. Id. at 1239–40.
The grids provide tables based on work classifications of sedentary, light,
medium, heavy, or very heavy. These classifications are based on the exertional
level, or “primary strength activities,” the work requires, such as sitting, standing,
walking, lifting, carrying, pushing, and pulling. See SSR 83–10. Each table considers
vocational factors, such as age, education, and work experience, to “direct a
conclusion” of either disabled or not disabled. See generally, 20 C.F.R. pt. 404,
subpt. P, app. 2 § 200.00(a). These tables constitute “administrative notice” as to
the number of unskilled jobs that exist in the national economy at the various

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exertional levels. Thus, when all of the claimant’s vocational factors coincide with
the criteria in the table, “the existence of jobs is established.” 20 C.F.R. pt. 404,
subpt. P, app. 2 § 200.00(b).
However, exclusive reliance on the grids is not appropriate either (1) “when
the claimant is unable to perform a full range of work at a given residual functional
level”; or (2) “when a claimant has non-exertional impairments [i.e., impairments
not related to strength] that significantly limit basic work skills.” See Phillips, 357
F.3d at 1242; see also 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(a). In either of
these cases, the number of jobs the claimant is able to perform based on his RFC,
age, education, and work experience may be affected. See SSR 83–12 (explaining
that when a claimant’s exertional limitations do not coincide with a particular
exertional level in the grids, the adjudicator may need to consult a VE to determine
the extent of any erosion in the occupational base); SSR 83–14 (explaining that
when nonexertional impairments are present, the occupational base may be
significantly narrowed and the ALJ may need to consult a vocational expert). Thus,
in these kinds of cases, the ALJ must make an individualized assessment and
consult a VE to determine whether there are jobs in the economy the claimant can
perform. See Phillips, 357 F.3d at 1242–43. However, when the ALJ cannot rely
solely on the grids, the ALJ nonetheless “may use [the grids] as a framework to

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evaluate vocational factors . . . .” Wilson, 284 F.3d at 1227; see also 20 C.F.R. pt.
404, subpt. P, app. 2 § 200.00(d) (recognizing that the grids can “still provide
guidance for decisionmaking”).
In this case, after assessing Plaintiff’s RFC and finding at the fourth step of
the sequential evaluation process that Plaintiff could not perform his past relevant
work (tr. at 41, 44), the ALJ had to decide at the fifth and final step if Plaintiff could
nonetheless perform other work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (v),
416.920(a)(4)(iv), (v). The ALJ first looked to the grids to determine whether they
might direct a conclusion of disabled or not disabled given Plaintiff’s RFC and
other vocational factors. (Tr. at 45). The ALJ considered Grid Rule 202.10 as it
most closely corresponded to Plaintiff’s vocational characteristics. (Tr. at 45). See
20 C.F.R. pt. 404, subpt. P, app. 2. Table No. 2, § 202.10. Specifically, Plaintiff
was an individual closely approaching advanced age (50 to 54 years of age), with
limited education and semiskilled past work experience, and an RFC for light work.
(Tr. at 71-72, 78). See 20 C.F.R. §§ 404.1563(d), 404.1564(b)(3), 404.1567(b),
404.1568(b), 416.963(d), 416.964(b)(3), 416.967(b), 416.968(b). The ALJ, however,
recognized that Plaintiff had additional limitations that precluded the strict
application of the grids and he could use the grids only as a framework for his
decision. (Tr. at 45). See 20 C.F.R. §§ 404.1569, 416.969; 20 C.F.R. pt. 404, subpt.

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P, app. 2, § 200.00(e)(2). Thus, the ALJ obtained testimony from a VE to help
determine whether other work exists. (Tr. at 45, 72-74). The VE testified that an
individual with Plaintiff’s limitations could perform representative occupations
such as sorter, electrical accessories assembler, and small parts assembler. (Tr. at
41, 45, 73).
Plaintiff contends that the ALJ should have applied Grid Rule 201.11, which
provides that if a claimant is closely approaching advanced age, has a limited
education, and has unskilled, skilled, or semi-skilled past work, with skills that are
nontransferable, and is now limited to sedentary work, then the claimant is
disabled. 20 C.R.F. pt. 404, subpt. P, app. 2, Table No. 1, § 201.11. However, Grid
Rule 201.11 involves an RFC for sedentary work. See id. The ALJ here determined
Plaintiff retained the RFC to perform a reduced range of light work. (Tr. at 41). For
all of the reasons discussed above, Plaintiff has failed to demonstrate that the RFC
for light work with additional limitations was erroneous. Accordingly, the ALJ
properly utilized Grid Rule 202.10 as a framework in determining whether Plaintiff
could perform other jobs in the national economy.
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.

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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.
Here, Plaintiff submitted evidence to the Appeals Council in connection
with his request for review of the ALJ’s unfavorable decision. The additional
evidence included Plaintiff’s report card grades from 1975-77 (tr. at 261-62); an
October 28, 2014, UAB Medicine office note (tr. at 407-09); Plaintiff’s October 28,
2014, neck x-ray (tr. at 412); and a patient intake form showing Plaintiff underwent
a right rotator cuff repair on October 17, 2014. (Tr. at 419). The medical records
address a procedure Plaintiff underwent after his hearing before the ALJ but before
the decision was entered in January 2015.

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Plaintiff first asserts that the Appeals Council denied review without actually
examining his medical records once the Appeals Council saw that they were dated
after the ALJ’s hearing but before the ALJ’s decision. Plaintiff’s argument is
without merit. The Appeals Council specifically stated that it “considered” the
additional records submitted by Plaintiff, listed out Plaintiff’s school records dated
1975 to 1977, and his medical records from UAB Highlands from October 2014, and
stated that this evidence did not provide a basis for changing the ALJ’s decision.
(Tr. at 2, 5, 261-62, 405-21.) Plaintiff appears to argue the Appeals Council had a
duty to articulate how it considered the additional evidence. However, the
regulations do not impose an articulation duty on the Appeals Council when it
denies a request for review. See 20 C.F.R. §§ 404.970, 416.1470; see also Mitchell v.
Comm’r of Soc. Sec., 771 F.3d 780, 784 (11th Cir. 2014) (holding Appeals Council
not required to provide a detailed discussion of a claimant’s new evidence when
denying a request for review, decided based on language in the Appeals Council’s
order similar to that used by the Appeals Council here).
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

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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, 771 F.3d at 784). Unlike the Appeals
Council in Washington, the Appeals Council here stated that it “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 decide whether the additional
records submitted to the Appeals Council by Plaintiff were new, 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.
Assuming the evidence is new and chronologically relevant to the period of
time considered by the ALJ, it is not material. Evidence is material when there is a

26

reasonable possibility that it would change the administrative result. Hyde v. Bowen,
823 F.2d 465, 459 (11th Cir. 2009). The new evidence of Plaintiff’s report card
grades from the seventh grade is consistent with the ALJ’s finding that Plaintiff had
a limited education. (Tr. at 45). See 20 C.F.R. §§ 404.1564(b)(3), 416.963(b)(3)
(“We generally consider that a 7th grade through the 11th grade level of formal
education is a limited education.”). The new medical evidence is consistent with
the ALJ’s finding that Plaintiff could perform a reduced range of light work. (Tr. at
41). While Plaintiff’s intake form at UAB Medicine shows that he underwent a
right rotator cuff repair on October 17, 2014 (tr. at 419), the clinical findings
reported in the October 28, 2014, office note do not establish limitations greater
than those included in the RFC finding. (Tr. at 408-09). The office note shows
Plaintiff was alert, oriented times 3, normally developed, and well-nourished. (Tr.
at 408). He was in no acute distress and had a normal gait. (Tr. at 408). His neck
range of motion was “reasonable,” and his shoulder provocative maneuvers were
negative. (Tr. at 408). He exhibited 5/5 motor strength in the upper extremities;
grossly intact upper extremity sensation; and 2/4 reflexes. (Tr. at 408). Plaintiff’s
October 2014 neck x-ray shows persistent retrolisthesis of C3 on C4 and C4 on C5,
grade 1, with multilevel degenerative changes, but no fractures and no prevertebral
soft tissue abnormality. (Tr. at 412).

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As part of this issue, Plaintiff also argues that because he complained of
severe shoulder pain at the hearing, and he later underwent the left rotator cuff
repair (as evidenced by the additional records submitted to the Appeals Council),
the hypothetical question that the ALJ posed to the VE did not fully account for all
of Plaintiff’s limitations because it did not account for all of Plaintiff’s subjective
complaints. The ALJ, however, properly incorporated in the hypothetical the
limitations the ALJ found credible and supported by the record. (Tr. at 41, 72-74.)
See Heppell-Libsansky v. Comm’r of Soc. Sec., 170 F. App’x 696, 699 (11th Cir. 2006)
(finding ALJ properly omitted limitations alleged by claimant from the VE’s
hypothetical where ALJ expressly discredited claimant’s subjective complaints).
The ALJ was not required to include unsupported limitations in his hypothetical to
the VE or accept the VE’s testimony in response to a hypothetical question that
included such opinions. See Crawford, 363 F.3d at 1161. Considering that the new
evidence regarding Plaintiff’s rotator cuff procedure was not material, the Court
cannot say that the ALJ’s hypothetical question was erroneous.
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

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Upon review of the administrative record, and considering all of Mr.
Spears’s arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. Additionally, Plaintiff’s
motion to remand is due to be denied. A separate order will be entered.
DONE and ORDERED on September 29, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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