Buckelew v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/30/2017. (KBB)
2017 Oct-30 PM 03:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Civil Action Number
Dennis Buckelew brings this action pursuant to Section 405(g) of the Social
Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final adverse
decision of the Commissioner of the Social Security Administration (“SSA”). The
court finds that the Administrative Law Judge’s (“ALJ”) and the Appeals
Council’s decisions—which have become the decision of the Commissioner—are
supported by substantial evidence. Therefore, the court denies the motion to
remand, doc. 12, and affirms the decision denying benefits.1
I. PROCEDURAL HISTORY
Buckelew filed an application for a period of disability, disability insurance
benefits, and Supplemental Security Income. R. 95, 258-68. After the SSA denied
Also before the court is the Commissioner’s Unopposed Motion to Enlarge Time to File a
Memorandum in Support of the Commissioner’s Decision, doc. 17. The motion is DENIED as
his application, Buckelew requested a hearing before an ALJ, who subsequently
denied Buckelew’s claim. R. 92-107. This became the final decision of the
Commissioner when the Appeals Council refused to grant review. R. 73-76.
Buckelew then filed this action pursuant to § 405(g) of the Act, 42 U.S.C.
§ 405(g). Doc. 1.
II. STANDARD OF REVIEW
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of
the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative answer
to any of the above questions leads either to the next question, or, on steps three
and five, to a finding of disability. A negative answer to any question, other than
step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20 C.F.R.
§ 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to prior
work the burden shifts to the Secretary to show other work the claimant can do.”
Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. THE COMMISSIONER’S DECISION
In performing the five step analysis, the ALJ found that Buckelew had not
engaged in substantial gainful activity since October 17, 2014, and therefore met
Step One. R. 97. Next, the ALJ found that Buckelew satisfied Step Two because he
suffered from the severe impairments of “degenerative disk disease of the lumbar
spine, and is status post fusion from L4-S1 in 2004; a seizure disorder;
hypertension; gastroesophageal reflux disease; anxiety; depression; and opioid
abuse and dependency.” Id. The ALJ then proceeded to the next step and found
that Buckelew did not satisfy Step Three because he “does not have an impairment
or combination of impairments that meets or equals the severity of one of the listed
impairments.” Id. at 97-98. Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, she proceeded to Step
Four, where she determined that Buckelew has the residual functional capacity
(“RFC”) to “perform light work . . . except [he] can lift and carry 20 pounds
occasionally.” R. 101. In light of Buckelew’s RFC, the ALJ determined that
Buckelew “is unable to perform any past relevant work, with the possible
exception of his job as an auctioneer,” but that this work “was not substantial
gainful activity and is not considered past relevant work.” Id. at 105. Lastly, in
Step 5, the ALJ considered Buckelew’s age, education, work experience, and RFC,
and determined that “there are jobs that exist in significant numbers in the national
economy that [Buckelew] can perform.” Id. at 106. Therefore, the ALJ found that
Buckelew “has not been under a disability, as defined in the Social Security Act,
from October 17, 2014 through the date of this decision.” Id. at 107.
Buckelew raises multiple grounds of error. First, he contends that the ALJ
failed to develop the record by obtaining relevant medical records. Doc. 13 at 2.
Second, Buckelew contends the ALJ failed to apply Social Security Ruling 16-3p
in evaluating his statements on the intensity, persistence, and limiting effects of his
symptoms. Id. Finally, Buckelew contends that remand is warranted under
sentence four of § 405(g) because of the Appeals Council’s decision not to reopen
the case to consider purportedly relevant evidence. Id. at 2. The court addresses
each argument in turn.
A. Failure to Develop the Record
Buckelew contends that the ALJ failed to develop a full and fair record by
failing to obtain “most of the records from Hartselle Urgent Care & Family
Medicine dated 3/4/11-6/4/16.” Doc. 13 at 19. The claimant bears the burden of
proving that he is disabled, and, thus, is responsible for producing evidence to
support his claim. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
However, “[b]ecause a hearing before an ALJ is not an adversary proceeding, the
ALJ has a basic obligation to develop a full and fair record.” Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981). The ALJ must develop the medical history for
the twelve months prior to the date the application for disability benefits is filed
but is not bound to develop the record after that date. Ellison, 355 F.3d at 1276; 20
C.F.R. § 416.912(d). In determining whether the ALJ has failed to develop the
record fully, the court is guided by whether the record reveals evidentiary gaps that
result in unfairness or clear prejudice. See Brown v. Shalala, 44 F.3d 931, 935
(11th Cir. 1995) (holding that there must be a showing of prejudice before the
court will find a claimant’s rights under due process have been violated by a failure
to develop the record).
Here, no reason existed for the ALJ to obtain any additional records based
on the information the claimant provided to the ALJ at the hearing. Specifically,
when the ALJ asked Buckelew’s non-attorney representative if Buckelew had any
additional documents to submit, the representative answered no. See R. 145.
Buckelew does not dispute or even address this fact. See generally docs. 13, 20.
Thus, “any alleged error the ALJ may have made in not obtaining more recent
medical records was invited,” and is therefore not subject to challenge on review
before this court. Larry v. Comm’r of Soc. Sec., 506 F. App’x 967, 969 (11th Cir.
2013) (citing Ford ex. rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1293-1294
(11th Cir. 2002)). Moreover, having reviewed the records from the twelve months
prior to the date Buckelew filed the application (i.e. from October 21, 2013 to
October 21, 2014, see R. 95), the court does not find any evidentiary gaps in the
record that result in unfairness or clear prejudice to Buckelew, as the findings in
those records are largely duplicative of the records that the ALJ reviewed at the
hearing. Accordingly, the court finds that the ALJ sufficiently developed a fair and
B. Social Security Ruling 16-3p
Buckelew next contends that the court should remand his claim so that the
ALJ may reconsider Buckelew’s statements concerning the intensity, persistence,
and limiting effects of his symptoms pursuant to Social Security Ruling 16-3p,
which he alleges applies retroactively. Doc. 13 at 19-28. Social Security Ruling 163p became effective before the ALJ rendered her decision. R. 95; Social Security
Ruling 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81
Fed. Reg. 15,776-01 (March 24, 2016), 2016 WL 1131509. Accordingly, the court
need not determine whether it applies retroactively, but only whether the ALJ
made an error of law in its application.
“Social Security Ruling 16-3p was intended to supersede former Ruling 967p, and was enacted for the purpose of providing ‘guidance about how we evaluate
statements regarding the intensity, persistence, and limiting effects of symptoms in
disability claims under Titles II and XVI of the Social Security Act.’” Hargress v.
Berryhill, No. 4:16-CV-1079-CLS, 2017 WL 588608, at *1 (N.D. Ala. Feb. 14,
2017) (citing Soc. Sec. Ruling 16-3p; Titles II & XVI: Evaluation of Symptoms in
Disability Claims, SSR 16-3P (S.S.A. Mar. 16, 2016), 2016 WL 1119029, at *1).
Specifically, the Ruling
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 workrelated activities or, for a child with a title XVI disability claim, limit the
child’s ability to function independently, appropriately, and effectively in an
SSR 16-3P at *1-2, 10 (alterations in original). Buckelew contends that the ALJ
erred in applying the Ruling in deciding that
After careful consideration of the evidence, I find the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not consistent for the
reasons explained in this decision.
After consideration of the above, the undersigned finds the claimant’s
testimony is inconsistent with the objective medical evidence of record. As
noted above, the claimant was receiving multiple prescriptions of Ultram
and Tramadol from multiple medical providers over a sustained period of
time. He was misleading and untruthful with his physicians concerning this
and was filling those prescriptions at several pharmacies. He has alleged
severe back and leg pain and a very restricted ability to stand, walk, lift and
sit. However . . . examinations have consistently shown a normal gait,
normal motor strength, normal sensation, and normal reflexes. The MRI
scan showed only some disc bulging at L4-5 with no evidence of any nerve
root or spinal cord compression. The claimant alleged at the hearing that he
can lift and carry about 10 pounds; however, he stated to Dr. Jennings that
he has no difficulty with lifting and he is able to climb stairs without
R. 102, 105. This finding of inconsistency does not violate Social Security Ruling
16-3p. “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 judges will continue to assess the credibility of
pain assertions by applicants . . . .” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir.
2016) (emphasis in original). In noting that Buckelew was untruthful with his
physicians in disclosing his use of pain medication and inconsistent in his
testimony as to his symptoms, the ALJ did not assess Buckelew’s general or
overall character or truthfulness, but rather, made a specific determination of the
credibility of Buckelew’s assertions of pain.
Moreover, the ALJ’s consideration of Buckelew’s subjective symptoms was
consistent with applicable law. To demonstrate that pain or another subjective
symptom renders him disabled, Buckelew must “produce ‘evidence of an
underlying medical condition and (1) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (2) that the objectively
determined medical condition is of such severity that it can be reasonably expected
to give rise to the alleged pain.’” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir.
1991) (quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). If an
ALJ discredits subjective testimony of pain, “he must articulate explicit and
adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing
Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986)); MacGregor v. Bowen, 786
F.2d 1050, 1054 (11th Cir. 1986).
The ALJ properly applied these legal principles. She found that Buckelew’s
medically determinable impairments could reasonably have been expected to
produce the symptoms alleged, but that Buckelew’s statements concerning the
intensity, persistence, and limiting effects of his symptoms were not consistent
with the medical record. R. 102. That conclusion was in accordance with
applicable law. See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)
(“After considering a claimant’s complaints of pain, the ALJ may reject them as
not creditable, and that determination will be reviewed for substantial evidence.”)
(citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)) (emphasis added).
The ALJ also adequately articulated reasons to support her findings. She
noted that Buckelew’s allegations of the intensity and limiting effects of his pain
were contradicted by multiple medical examinations. R. 105. She found that
Buckelew’s seizures were well controlled, based on his reports to his doctor that he
had been seizure free for two years. Id. at 104. She noted that, while Buckelew had
a history of hypertension, the record showed no severe or persistent blood pressure
elevation with medication, and no evidence of “end organ damage” resulting from
it. Id. She found no evidence in the record that Buckelew’s gastroesophageal reflux
disease was unresponsive to medicine or resulted in any limitations. Id. at 104-05.
She noted that, despite Buckelew’s allegations of shortness of breath and chest
pain at the hearing, he did not see a cardiologist or submit relevant records
following the hearing, and his treatment records “show essentially no treatment for
any cardiac complaints.” Id. at 105. Finally, she noted that, following an episode of
superficial phlebitis in the legs, the record showed no further complaints relating to
it. Id. All of these conclusions are supported by substantial evidence, and they are
sufficient to support the ALJ’s consistency finding. Accordingly, the court finds
that the ALJ did not err in applying Ruling 16-3p.
Finally, Buckelew moves to remand this case to the Appeals Council
pursuant to sentence four of 42 U.S.C. § 405(g). Docs. 12 at 1; 13 at 28-38.
Buckelew contends that remand is warranted because his current counsel, who he
hired after the ALJ’s initial decision, only received Electronic Records Express
(“ERE”) access after the Appeals Council had denied review, and, as a result, his
counsel was unable to submit certain medical records prior to the Appeals
Council’s decision. Doc. 12 at 1-2. Relevant here, on June 22, 2016, Buckelew’s
current counsel filed a request for review of the ALJ’s decision with the Appeals
Council and requested both ERE access and sixty days to submit new evidence. Id.
at 1. A month later, the Appeals Council granted Buckelew twenty-five days to
submit more information, and stated that it would only grant more time “for very
good reasons.” R. 79. However, despite the extension, Buckelew’s counsel
apparently only provided the records at issue six day after the Appeals Council
denied review. Doc. 12 at 2.
The Eleventh Circuit has held that when a claimant does not properly submit
evidence to the Appeals Council, as is the case here, his motion to remand for
consideration of that evidence should be filed pursuant to sentence six of 42 U.S.C.
§ 405(g), not sentence four.2 See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d
1253, 1267-68 (11th Cir. 2007) (discussing Milano v. Bowen, 809 F.2d 763, 76667 (11th Cir. 1987)). Sentence six provides the “sole means for a district court to
remand to the Commissioner to consider new evidence presented for the first time
in district court.” Ingram, 496 F.3d at 1267. To trigger relief, a plaintiff must
demonstrate that the evidence (1) is new and noncumulative, (2) is material such
that there is a reasonable probability that it would change the administrative result,
and (3) was not submitted at the administrative level for good cause. Caulder v.
Bowen, 791 F.2d 872, 876 (11th Cir. 1986); see also Cherry v. Heckler, 760 F.2d
1186 (11th Cir. 1985).
Sentence six states that the district court may “at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.” 42 U.S.C. § 405(g).
Buckelew does not contend that the medical records at issue are new or
material. See generally docs. 12, 13, 20, 21. While his complaint makes the
conclusory assertion that “[n]ew and material evidence was submitted,” doc. 1-1,
he does not provide any elaboration on this claim, either in his complaint or briefs.
Accordingly, Buckelew has waived these issues. See N.L.R.B. v. McClain of
Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a
perfunctory manner, without supporting arguments and citation to authorities, are
generally deemed to be waived”). For this reason alone, his motion is due to be
Alternatively, the motion fails also because it is unclear whether Buckelew
could establish the new or material standards. The Commissioner contends that the
medical records Buckelew submitted are not new because they were in existence
and available to Buckelew at the time of the administrative hearing. Doc. 19 at 4-5
(citing Jones v. Comm’r of Soc. Sec. Admin., 497 F. App’x 888, 892-93 (11th Cir.
2012)); Ingram, 496 F.3d at 1267). Buckelew has not refuted this contention or
shown that the records would have been unavailable to him for use at the ALJ
hearing if he had requested them for that proceeding. Likewise, the Commissioner
contends, without any challenge by Buckelew, that the medical records were not
material because: (1) some of the records pre-existed Buckelew’s alleged onset
date and are duplicative of numerous medical records already in the record, and (2)
some of the records are from after the ALJ’s decision and thus unable to provide
insight into Buckelew’s condition during the relevant period. Doc. 19 at 5-7; see
generally docs. 20, 21. Where, as here, Buckelew has failed to establish that the
records are new or material, no basis exists to remand under sentence six.
Finally, the court turns to Buckelew’s contention that he had good cause for
his failure to submit the new evidence at the administrative level—i.e. his new
counsel’s lack of ERE access. Doc. 12 at 1-2. Obtaining new counsel, taken alone,
does not constitute good cause. Geyen v. Sec’y of Health & Human Servs., 850
F.2d 263, 264 (5th Cir. 1988) (per curiam). 3 Moreover, Buckelew’s reliance on
Cordy v. Commissioner of Social Security, 4:16-CV-01376-JHE, for the
proposition that the case “was remanded because the Appeals Council failed to
provide ERE access” misses the mark. See Doc. 21 at 1. A review of Cordy shows
that the court remanded to the Appeals Council based on the unopposed motion of
the Commissioner. Doc. 31 in 4:16-CV-01376-JHE. Both the Commissioner’s
motion and the decision granting remand were silent as to whether counsel’s lack
of ERE access was good cause for the Cordy plaintiff’s failure to submit the new
evidence. See generally Docs. 30-1; 31 in 4:16-CV-01376-JHE. Accordingly, the
grant of the motion to remand in Cordy does not support Buckelew’s contention
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions from the former Fifth Circuit decided on or
before September 30, 1981.
here. See United States v. Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.
2017) (“The holding of a case comprises both the result of the case and those
portions of the opinion necessary to that result. But the holding of a prior decision
can reach only as far as the facts and circumstances presented to the Court in the
case which produced that decision”) (internal citations and quotation marks
omitted). Finally, the court’s independent research has not uncovered any case in
which a court held that a new attorney’s lack of ERE access constituted good cause
for a failure to submit evidence. Therefore, the motion to remand is due to be
Based on the foregoing, the court concludes that the ALJ’s and Appeals
Council’s determination that Buckelew is not disabled is supported by substantial
evidence, and that the ALJ and Appeals Council applied proper legal standings in
reaching their determinations. The Commissioner’s final decision is AFFIRMED
and the motion to remand, doc. 12, is DENIED. A separate order in accordance
with this memorandum of decision will be entered.
DONE the 30th day of October, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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