Tays v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 1/9/2019. (TLM, )
2019 Jan-09 PM 04:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SHERRY SLAYTON TAYS,
) Case No. 4:17-cv-01929-ACA
NANCY A. BERRYHILL,
Acting Commissioner of
Plaintiff Sherry Slayton Tays appeals the Social Security Commissioner’s
denial of her claim for a period of disability and disability insurance benefits. On
November 26, 2018, the magistrate judge entered a report in which he
recommended that the court affirm the Commissioner’s decision. (Doc. 16). On
December 3, 2018, Ms. Tays filed objections to the report and recommendation.
(Doc. 17). Pursuant to 28 U.S.C. § 636(b)(1)(C), this case is before the court for a
review of Ms. Tays’s objections to the report and recommendation.
Ms. Tays makes two objections to the magistrate judge’s report and
recommendation. First, Ms. Tays objects to the magistrate judge’s finding that a
November 5, 2016 physician statement from Dr. Huma Khusro is chronically
irrelevant. 1 Second, Ms. Tays objects to the magistrate judge’s conclusion that the
ALJ gave proper weight to consulting physician Dr. Robert Estock. The court
examines each objection below.
Dr. Khusro’s November 5, 2016 Physician Statement
The ALJ issued her decision on October 20, 2016.
December 6, 2016, Ms. Tays submitted evidence that post-dates the ALJ’s
decision, including a November 5, 2016 physician statement from Dr. Khusro. (R.
The Appeals Council held that Dr. Khusro’s statement was not
chronologically relevant because it did not relate to the period at issue. (R. 2). The
magistrate judge’s report recommends affirming the decision, explaining that “the
Appeals Council concluded that the November 5, 2016, statement from Dr. Khusro
reflected a time period later than that considered by the ALJ,” and “[t]he Appeals
Council did not need to give a more detailed explanation or to address each piece
of evidence individually.” (Doc. 16 at 30 citing Mitchell v. Commissioner, Social
Security Administration, 771 F.3d 780 (11th Cir. 2014)).
In his report, the magistrate judge advised the parties that objections “should not . . . repeat
legal arguments.” (Doc. 16 at 33). In large part, Ms. Tays’s objection regarding the
chronological relevance of Dr. Khusro’s statement appears to be legal argument copied and
pasted from Ms. Tays’s brief in support of her appeal. (Compare Doc. 11 at 29-35 with Doc. 17
at 2-11). In the future, the court expects Ms. Tays’s counsel to comply with the court’s
instructions when he files objections on behalf of claimants he represents.
Ms. Tays argues that the magistrate judge’s recommendation should not be
adopted because Mitchell does not control the analysis. The court agrees that
Mitchell does not control.
In Mitchell, the Appeals Council considered the
additional evidence that the claimant presented regarding his claim but found that
“the information did not provide a basis for changing the ALJ’s decision.”
Mitchell, 771 F.3d at 782. On appeal, the claimant argued that the Appeals
Council “was required to provide a discussion of the new evidence” submitted to
it. Id. The Eleventh Circuit found that there was no reason to doubt the Appeals
Council’s statement that it considered the additional evidence, and the Appeals
Council was not required “to provide a detailed discussion of [the] new evidence
when denying a request for review.” Id. at 783.
Mitchell does not apply here for two reasons. First, there is no indication
that the Appeals Council considered Dr. Khusro’s statement. Second, Ms. Tays’s
challenge on appeal with respect to the statement is not that the Appeals Council
was required to provide a discussion of this evidence but rather that the Appeals
Council erroneously failed to consider the statement because it was not
Because the Appeals Council did not consider Dr. Khusro’s statement, the
court must determine whether the Appeals Council erred in failing to consider the
evidence. Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320-21 (11th
“‘With a few exceptions, a claimant is allowed to present new
evidence at each stage of the administrative process,’ including before the Appeals
Council.” Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th
Cir. 2015) (quoting Ingram v. Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir.
2007)). The Appeals Council must review evidence that is new, material, and
chronologically relevant. Ingram, 496 F.3d at 1261. The court reviews de novo
whether supplemental evidence is new, material, and chronologically relevant.
Washington, 806 F.3d at 1321.
The Appeals Council did not commit legal error when it refused to consider
Dr. Khusro’s statement because the statement is not chronologically relevant.
Evidence is chronologically relevant if it relates to the period on or before of the
ALJ’s decision. 20 C.F.R. § 404.970(b). A medical evaluation conducted after the
ALJ’s decision may be chronologically relevant if it pertains to conditions that preexisted the ALJ’s opinion. Washington, 806 F.3d at 1322-23 (citing Boyd v.
Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983)). In Washington, a consultative
examiner provided an opinion regarding a claimant’s mental condition. Although
the opinion post-dated the ALJ’s decision, the Eleventh Circuit found that the
opinion was chronologically relevant because the examiner indicated in his report
that he based his opinion on the claimant’s reports that “he had experienced
hallucinations throughout this life” and on the state of the claimant’s cognitive
abilities before the ALJ issued a decision. Washington, 806 F.3d at 1322. In
addition, the consultative examiner reviewed the claimant’s “mental health
treatment records from the period before the ALJ’s decision reflecting that [the
claimant] repeatedly reported experiencing auditory and visual hallucinations.”
Washington, 806 F.3d at 1322.
Dr. Khusro’s statement is unlike the consultative examiner’s report in
Washington. Dr. Khusro completed a pre-printed form in which she noted that Ms.
Tays’s bipolar disorder rendered her unable to work. (R. 16). Although the
statement explains that Ms. Tays was diagnosed with bipolar disorder in 2007, the
statement expressly states that Ms. Tays is unable to work because of her “current
condition.” (R. 16). The statement does not demonstrate that Dr. Khusro relied on
reports that Ms. Tays experienced disabling symptoms during the relevant time
period or that Dr. Khusro reviewed treatment records from before the ALJ’s
decision that speak to Ms. Tays’s bipolar disorder. (R. 16). Because Dr. Khusro’s
statement “was not chronologically relevant, the Appeals Council was not required
to consider it.” Hargress v. Soc. Sec. Admin., Comm’r, 874 F.3d 1284, 1291 (11th
Even if Dr. Khusro’s statement were chronologically relevant, remand is not
required because the statement is not material. For supplemental evidence to be
material, the evidence must be “relevant and probative so that there is a reasonable
possibility that it would change the administrative result.” Hyde v. Bowen, 823
F.2d 456, 459 (11th Cir. 1987). Statements that a claimant is “disabled” or “unable
to work” are not medical opinions entitled to any special deference. See 20 C.F.R.
§ 404.1527(d)(1). Dr. Khusro’s November 5, 2016 conclusory statement that Ms.
Tays is permanently disabled contains no objective medical findings or other
evidence that undermines the ALJ’s determination based on her review of the
medical evidence as a whole.
Because Dr. Khusro’s November 5, 2016 statement is neither
chronologically relevant nor material, the Appeals Council did not commit
reversible error by failing to consider the evidence.
Dr. Estock’s Opinion
Ms. Tays objects to the magistrate judge’s finding that the ALJ “provided
proper clarity in her reasoning in adopting most of Dr. Estock’s opinion.” (Doc. 17
at 11) (citing Doc. 16 at 24). “[T]he ALJ must state with particularity the weight
given to different medical opinions and the reasons therefor.” Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). “In the absence of such a
statement, it is impossible for a reviewing court to determine whether the ultimate
decision on the merits of the claim is rational and supported by substantial
evidence.” Id. (internal quotations omitted). Thus, “when the ALJ fails to state
with at least some measure of clarity the grounds for his decision, we will decline
to affirm simply because some rationale might have supported the ALJ’s
After reviewing Dr. Estock’s findings, the ALJ gave “significant, though not
great weight to Dr. Estock’s opinion evidence.” (R. 28). The ALJ explained that
Ms. Tays’s “mental health treatment records indicate that she has remained stable
with monthly counseling sessions and medication management visits every six
months, which is inconsistent with Dr. Estock’s prediction regarding depressionrelated absenteeism.” (R. 28). Through this statement, the ALJ clearly articulated
why she dismissed the portion of Dr. Estock’s opinion concerning Ms. Tays’s
potential depression-related absenteeism.
With the exception of citing the
applicable legal standard and providing a number of case citations, Ms. Tays
advances no substantive argument regarding why this explanation is insufficient.
(See Doc. 17 at 12-15).
Accordingly, the court finds that the ALJ properly
considered Dr. Estock’s opinion.
Having carefully reviewed and considered de novo “those portions of the
report or specified proposed findings or recommendations to which” Ms. Tays’s
objects, see 28 U.S.C. § 636(b)(1)(C), and for the reasons outlined above, the court
ACCEPTS the magistrate judge’s recommendation and AFFIRMS the
The court will enter a separate final order consistent with this memorandum
DONE and ORDERED this January 9, 2019.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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