Tinker v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION. For the reasons stated within, the decision of the SSA Commissioner is AFFIRMED. A separate order will be entered. Signed by Judge Corey L. Maze on 9/6/2019. (SRD)

FILED
2019 Sep-06 AM 11:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DONNIE RAY TINKER
Plaintiff,
v.

Case No.: 4:18-cv-321-CLM

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION
Donnie Ray Tinker seeks Disability Insurance Benefits (DIB) from the Social
Security Administration (SSA). Tinker’s qualifying disability shifted somewhat
during the proceedings below. Tinker argued to an Administrative Law Judge (ALJ)
that he could not work due to severe back pain. Tinker then argued to the SSA
Appeals Council that depression and low intellectual capacity precluded his
employment. Neither argument was successful.
Tinker now asks this Court to find that (a) the Appeals Council wrongly
refused to consider Tinker’s new evidence of depression and low intellectual
capacity and, when that error is rectified, (b) the combination of his back pain, neck
pain, depression, and low intellectual capacity entitles him to DIB. But, as detailed
below, the Appeals Council did not err when it refused to consider Tinker’s new
evidence, and thus this Court cannot combine Tinker’s ailments to grant him DIB.

I. Statement of the Case
A. Determining Disability
The SSA has created the following five-step process to determine whether an
individual is disabled and thus entitled to benefits under the Social Security Act:
The 5-Step Test
Step 1

Is the Claimant engaged in substantial
gainful activity?

If yes, claim denied.
If no, proceed to Step 2.

Step 2

Does the Claimant suffer from a severe,
medically-determinable impairment or
combination of impairments?

If no, claim denied.
If yes, proceed to Step 3.

Step 3

Does the Step 2 impairment meet the
criteria of an impairment listed in 20
CFR Part 404, Subpart P, Appx. 1?

If yes, claim granted.
If no, proceed to Step 4.

Step 4

Does the Claimant possess the residual
functional capacity to perform the
requirements of his past relevant work?

If yes, claim denied.
If no, proceed to Step 5.

Step 5

Is the Claimant able to do any other
If yes, claim denied.
work considering his residual functional If no, claim granted.
capacity, age, education, and work
experience?

See 20 C.F.R. §§ 404.1520(a), 404.1520(b) (2019) (Step 1); 20 C.F.R. § 404.1520(c)
(2019) (Step 2); 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 (2019) (Step 3); 20
C.F.R. § 404.1520(e-f) (2019) (Step 4); 20 C.F.R. § 404.1520(g) (2019) (Step 5).
Step 2 is the most relevant step in this case because, as detailed below, the
SSA denied Tinker’s application because Tinker failed to establish that he suffered
from a severe medically-determinable impairment or combination of impairments.

B. Tinker’s Disability (as told to the ALJ)
As noted in the introduction, Tinker initially claimed that his disability was
an injured back/neck. The following facts come from Tinker’s testimony before the
ALJ; the court will address his new evidence to the Appeals Council in subpart D.
Tinker worked for 12 hours per day while suffering from back and neck pain.
Sometime before April 2011, Tinker stopped working his 12-hour-per-day job and
began working 16 hours per week doing building maintenance. 1 Tinker’s mother
agreed to financially support Tinker after he switched jobs.
On August 18, 2010, Tinker sought treatment from a chiropractor. The
chiropractor took x-rays of Tinker’s spine, which showed spurring and a “possible”
fracture. The chiropractor told Tinker that he would not adjust Tinker’s neck unless
Tinker saw a medical doctor. The next day, Tinker reported that his neck felt better
and was just a little sore. One week later, he reported that his back was okay. He
returned to the chiropractor, however, in October and November 2010 and
complained of increased pain. The chiropractor again advised Tinker to see a
medical doctor, but he did not.
In April 2011, a tornado struck Tinker’s home and his mother’s adjacent
home. Tinker survived; his mother and brother did not. Tinker’s back pain

1

Subsequent evidence suggests that Tinker ended his full-time employment in 2007 and his parttime employment in 2008 or 2009. See R. at 50, 102-03.

intensified after the tornado. Tinker began taking 16 Advil pills per day.

Still,

Tinker did not visit a medical doctor, only his chiropractor.
Tinker’s last day insured was June 30, 2012.
C. Tinker’s Application and the ALJ’s Decision
The SSA reviews applications for disability benefits in three stages: (1) Initial
determination, including reconsideration, (2) review by an ALJ, and (3) review by
the SSA Appeals Council. See 20 C.F.R. § 404.900(a)(1-4) (2019). Tinker applied
for DIB on February 24, 2015, and the SSA initially denied his claim on March 27,
2015.
Tinker then requested a hearing with an ALJ, which he received on September
1, 2016. In advance of the hearing, Tinker informed the ALJ that he suffered from
“the following severe impairments: back and neck problems, hypertension,
headaches with difficulty walking due to back, dizziness and SOB[.]” R. at 240. At
the hearing before the ALJ, Tinker testified to the facts outlined above, and he
presented evidence of the chiropractor’s August 2010 x-ray.
At the end of the hearing, the ALJ told Tinker that, unless Tinker could
provide an x-ray reading from a medical doctor that established a severe injury, “then
it’s going to be a non-severe denial, step 2.” R. at 113. The ALJ noted that the
reading must come from a “medical doctor . . . not a chiropractor.” Id. The ALJ
granted Tinker 30 days to have a doctor review his x-rays, so that he might avoid the

Step 2 denial.
Tinker did not provide any additional evidence to the ALJ. On March 15,
2017, the ALJ issued an opinion denying Tinker’s application. R. at 8-19. At Step
1, the ALJ determined that Tinker was not engaged in substantial gainful activity,
and thus his claim would progress to Step 2. R. at 13.
At Step 2, the ALJ determined that, although Tinker suffered from
“degenerative disc disease of the cervical spine and lumbar spine,” Tinker failed to
establish that he suffered from a severe medically-determined impairment or
combination of impairments. Id. To support this finding of non-severity, the ALJ
noted that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record[.]” R. at 15. The ALJ noted that Tinker
had not sought medical assistance, despite his chiropractor’s statements, and that
Tinker said that his back and neck were “okay” shortly after his initial visit. Id. The
ALJ also noted that when Tinker finally had a medical doctor take and review x-rays
in 2015/2016—well after Tinker’s last date insured in June 2012 (i.e. the end of the
relevant time period)—“there were no significant findings on those x-rays.” Id.
Furthermore, the ALJ noted that Tinker failed to have a doctor review the
chronologically relevant x-rays taken by Tinker’s chiropractor in August 2010,
despite the ALJ’s advice to do so. Id.

As she had at the hearing, the ALJ also noted that the Social Security
Regulations require “acceptable medical sources” to be the basis of a medicallydeterminable impairment and chiropractors are not considered an acceptable medical
source. Id. (citing 20 C.F.R. § 404.1513(a) and Social Security Rule 06-03p).
D. The Appeals Council’s Decision
The SSA Appeals Council will review an ALJ’s decision only for one of the
following five reasons:
1. The ALJ abused his discretion;
2. The ALJ made an error of law;
3. The ALJ’s findings/conclusions are not supported by substantial evidence;
4. The case presents a broad policy or procedural issue that may affect the
public’s interest; and/or
5. The Applicant submits to the Appeals Council additional evidence “that is
new, material, and relates to the period on or before the date of the hearing
decision, and there is a reasonable probability that the additional evidence
would change the outcome of the decision.”
20 C.F.R. § 404.970(a) (2019). If an Applicant fails to establish one of these five
reasons for review, the ALJ’s decision becomes the final decision of the SSA
Commissioner.
Tinker appealed the ALJ’s decision pursuant to the ‘new evidence’ provision
and offered the following new pieces of evidence to support his appeal:

1. Tinker’s middle school and high school records from 1965 to 1973;
2. A statement from nurse practitioner Sarah Gilbreath, dated July 26-27,
2017;
3. A psychological evaluation by David Wilson Ph.D, dated July 24-25,
2017;
4. Records from CED Mental Health, dated May 25 to July 27, 2017; and
5. Medical records from Huntsville Hospital, dated October 23-26, 2015.
Generally, Tinker argued that this new evidence established that he suffered from
depression and low intellectual functioning, on top of his previously-disclosed back
pain, and that this combination of impairments warranted disability benefits.
The Appeals Council refused to review the ALJ’s decision because none of
Tinker’s new evidence met the CFR standard. Specifically, the Appeals Council
refused to consider the 2015 Huntsville Hospital records and the 2017 CED Mental
Health Records because, in the Council’s opinion, this evidence related to events
that occurred after June 30, 2012—i.e. Tinker’s last day insured. R. at 2. The
Appeals Council refused to consider the remaining three pieces of new evidence (i.e.
Tinker’s school records, Dr. Wilson’s report, and Nurse Gilbreath’s report) because,
in the Council’s opinion, none of those pieces of evidence would have changed the
outcome of the ALJ’s decision. Id.
Because the Appeals Council refused to review the ALJ’s decision, the ALJ’s
opinion is considered the final decision of the SSA Commissioner. R. at 3. Tinker

asks this Court to review the Commissioner’s final decision, plus certain decisions
made by the Appeals Council. See 20 C.F.R. § 404.900(a)(4) (2019) (allowing
claimants to seek district court review of the Commissioner’s final decision if all
stages of SSA review are completed).
II.

Legal Analysis
Tinker raises five arguments in his brief to this Court, see Tinker Br. 14-34,

and the Court addresses them in the order presented.
A. The Appeals Council Properly Refused to Consider Tinker’s New
Evidence.
Tinker first argues that the Appeals Council wrongly refused to consider his
new evidence—i.e. evidence that he did not present to the ALJ. Which evidence,
however, is up for debate. In his argument headings, errors of law, and table of
contents, Tinker limits his argument to two of the five pieces of new evidence: Dr.
Wilson’s examination and the CED Mental Health Center Report. See Tinker Br. 1,
2, 14; Tinker Reply Br. 1. But Tinker does not make arguments tailored to either of
these pieces of evidence. Instead, he block-quotes caselaw and makes general
statements that could equally apply to all five pieces of new evidence.
The Commissioner responded by defending the Appeals Council’s decision
regarding all five pieces of new evidence. Comm’r Br. 4-12. This Court held oral
argument and questioned Tinker about all five pieces of new evidence. Oral
Argument Tr. 8-16. So, in an abundance of caution, the Court will review, de novo,

the Appeals Council’s decision not to consider any piece of Tinker’s new evidence.
1. Dr. Wilson’s Evaluation: David Wilson is a licensed psychologist. Dr.
Wilson evaluated Tinker on July 24, 2017—well after Tinker’s last insured date
(June 30, 2012) and shortly after the ALJ’s decision (March 15, 2017). Dr. Wilson
diagnosed Tinker with three impairments: (1) major depressive disorder, recurrent
PTSD, (2) intellectual disability, and (3) lumbar problems with chronic pain. R. at
52. Dr. Wilson opined that the combination of these issues causes Tinker to “have
a great deal of difficulty maintaining any type of job.” Id.
Again, the Appeals Council will only review evidence “that is new, material,
and relates to the period on or before the date of the hearing decision, and there is a
reasonable probability that the additional evidence would change the outcome of the
decision.” 20 C.F.R. § 404.970(a) (2019). The Appeals Council refused to consider
Dr. Wilson’s evaluation because it found that “this evidence does not show a
reasonable probability that it would change the outcome of the [ALJ’s] decision.”
R. at 2.
This Court agrees. The ALJ knew about Tinker’s back pain issues and told
Tinker and his representative at the 2016 hearing that, unless Tinker submitted an
x-ray reading from a “medical doctor,” she must rule against Tinker in Step 2. R. at
113. But as Tinker’s counsel acknowledged to this Court, Tinker offered “no
additional evidence on back problems” to the ALJ or the Appeals Council, Oral

Argument Tr. 25, as Dr. Wilson’s report simply recites what the ALJ already knew.
Accordingly, there is no reasonable probability that Dr. Wilson’s statements
regarding back pain would have changed the ALJ’s decision.
Nor would Dr. Wilson’s diagnosis of intellectual disability. As this Court
noted during oral argument, Tinker has worked many jobs despite his alleged
intellectual deficiencies, including work at a furniture store, a flooring company, a
paper company, a spinning mill, and an apartment complex (as a maintenance man).
Oral Argument Tr. 11. In response, Tinker’s counsel agreed that Tinker’s intellect
did not prevent him for sustaining gainful employment: “He has excelled really
despite his low IQ, so I believe the depression would be the winning argument as
opposed to the low IQ.” Id. at 12. In light of the evidence and counsel’s concession,
there is no reasonable probability that Dr. Wilson’s opinion regarding Tinker’s
intellect would have changed the ALJ’s decision.
Finally, Dr. Wilson’s diagnosis of depression also fails. For starters, Dr.
Wilson’s depression diagnosis is temporally problematic. Tinker’s date last insured
was June 30, 2012; thus, any impairment after June 30, 2012 would have been
irrelevant to the ALJ’s decision process. See, e.g., R. at 105-06. (ALJ reminding
Tinker’s representative that she must confine questions to the period before June 30,
2012). Yet, Dr. Wilson’s evaluation and conclusion is based in the present—i.e.
July 2017. See R. at 48-52.

Particularly, Dr. Wilson concluded that Tinker was a

presently “very depressed and also highly anxious individual,” who “would have a
great deal of difficulty maintaining any type of job” because Tinker’s “ability to
withstand the pressures of day to day occupational functioning is highly impaired.”
R. at 52. (emphasis added). Dr. Wilson did not make any conclusions regarding the
impact of Tinker’s depression in 2011-12 on Tinker’s ability to sustain employment
in 2011-12, nor does his evaluation suggest that Dr. Wilson reviewed any records
from that relevant time period. Accordingly, there is no reasonable probability that
the ALJ would have considered Dr. Wilson’s opinion, much less used it as the basis
for finding disability in 2011-12. See Whitton v. Comm’r, Soc. Sec. Admin., 643 F.
App’x 842, 847 (11th Cir. 2016) (holding that an ALJ properly gave no weight to an
opinion “rendered after” the claimant’s date last insured and that “did not address
the severity of [the claimant’s] conditions during the relevant time period”).
Second, the evidence suggests that back pain—not depression—kept Tinker
from working in 2011-12. Tinker quit working full time due to his back pain in 2007
(R. at 50, 102-03), and then Tinker quit has part-time job as a maintenance man in
“2008 or 2009,” in part, because “he had gotten to where he could not physically do
the job.” R. at 50; see also R. at 102-03. That means that Tinker quit working due
to his back pain four years before the tornado killed his family—i.e. the event that
triggered Tinker’s depression.
Third, and perhaps most telling, is that Tinker himself maintains that he cannot

work due to back pain, not depression. As detailed above, Tinker told the ALJ that
he quit working in 2007, and then again in 2008-09, due to back pain. R. at 102-03.
When asked during the ALJ hearing why he didn’t presently work (in 2016), Tinker
responded, “Because I’m having too much pain. I can’t bend over. If I get down, I
have to – I could put my knees on the ground or floor and I have trouble getting back
up.” R. at 103. In May 2017, Tinker told his therapist that “herniated disks in his
back keep him from being able to work[.]” R. at 43.
As for his depression, Tinker told Dr. Wilson that it was because he “can’t do
nothing.” R. at 50. Tinker also told Dr. Wilson that he is depressed “most of the
time” due to “[n]ot knowing how I will pay my bills.” Id. In other words, Tinker
told Dr. Wilson that his lack of employment caused his depression, not the other way
around. This fact is bolstered by Dr. Wilson’s notes that Tinker “presented with neat
hygiene and appearance;” his “thought processes were in tact;” and “he was
cooperative and respectful throughout.” Id. Furthermore, Tinker told Dr. Wilson
that he could “drive some” and that “if I feel good, I will get out and piddle with the
lawnmower.” Such statements bolster a determination that Tinker’s back pain—not
his depression—impairs his ability to work.
For these reasons, individually and collectively, the Appeals Council correctly
determined that there is no reasonable probability that Dr. Wilson’s evaluation
would have changed the outcome of the ALJ’s decision.

2. The CED Mental Health Center Records: Tinker was referred to the CED
Mental Health Center in May 2017 regarding his depression. Tinker presented the
therapist’s intake evaluation to the Appeals Council as new evidence of his
depression. R. at 34-47. Like Dr. Wilson, the CED therapist diagnosed Tinker as
“major depressive” (R. at 47), and recommended that Tinker continue seeing a
physician and therapist. Id.
The Appeals Council refused to consider the CED evaluation because, in the
Council’s opinion, the CED evaluation presented no evidence regarding the relevant
time period of April 2011 to April 2012. R. at 2. This ruling is understandable.
Like Dr. Wilson’s report, the CED evaluation speaks in present tense—i.e. it
discusses Tinker’s present (May 2017) issues with depression and diagnoses Tinker
as presently major depressive. The CED therapist made no findings regarding
Tinker’s level of depression in 2011-12; nor did she opine whether Tinker’s
depression affected Tinker’s ability to maintain gainful employment in 2011-12.
That said, as the Commissioner conceded during oral argument (Oral
Argument Tr. 20-21), the CED evaluation does contain factual evidence regarding
Tinker’s issues with trauma/depression after the 2011 tornado. For example, the
evaluation contains evidence that, to deal with his post-tornado depression in April
2011, Tinker “started excessively drinking” (i.e. “he used to drink 1/2 gallon of
liquor a day”). R. at 34. Accordingly, this Court disagrees with the Council that the

entirety of the CED evaluation was not chronologically relevant.
But this error does not warrant reversal or remand because there is no
reasonable probability that presenting the CED evaluation to the ALJ would have
changed her opinion. See 20 C.F.R. § 404.970(a) (2019). The CED evaluation
suffers from the same defect that plagues Dr. Wilson’s report—i.e. it fails to tie
Tinker’s post-tornado depression to his inability to work in 2011 and 2012.
To the contrary, the CED evaluation bolsters the fact that Tinker’s job-related
impairment was his back pain, not his depression. For starters, Tinker told the
therapist “that he has trouble with his hip and back but that he does not have mental
health problems” and that he had come “to get medicine to help with his hip.” R. at
34. When the therapist informed Tinker that he was being evaluated for depression,
not hip or back pain, Tinker said that he was depressed “because he doesn’t have
any money to pay his bills; he doesn’t have any friends; his family rarely visits him;
and he doesn’t have any money to do anything or anything that he necessarily wants
to do.” R. at 34. Again, Tinker’s own words indicates that Tinker is depressed
because he does not have a job; not that he cannot get a job due to his depression.
In fact, Tinker told the therapist that he has held “other odd jobs,” including presently
(i.e. May 2017) “working on weedeaters and lawnmowers when he can.” R. at 35.
Most importantly, Tinker did not say that his depression prevented him from
working at any point, including the relevant time period of April 2011 to April 2012.

Rather, Tinker told the therapist that “herniated disks in his back keep him from
being able to work and denied disability.” R. at 43.
Because the CED evaluation contains no evidence that depression prevented
Tinker from working in 2011-12, and it contains no new evidence regarding Tinker’s
back pain in 2011-12, there is no reasonable probability that its introduction would
have changed the ALJ’s decision to deny benefits in Step 2.
3. Nurse Gilbreath’s evaluation: Nurse Practitioner Sarah Gilbreath saw
Tinker on June 26, 2017 and completed a 2-page evaluation form. R. at 90-91. Like
Dr. Wilson and the CED therapist, NP Gilbreath determined that Tinker suffered
from depression. R. at 91. Also like Dr. Wilson and the CED therapist, NP Gilbreath
did not opine whether Tinker’s depression in 2011-12 prevented Tinker from being
gainfully employed in 2011-12. R. at 90-91.
As an initial matter, Tinker failed to make an argument in his brief or his reply
brief that specifically addresses the Council’s decision not consider NP Gilbreath’s
evaluation. And, unlike Dr. Wilson’s report and the CED evaluation, NP Gilbreath’s
evaluation is absent from Tinker’s list of “errors of law” and his argument headings.
Accordingly, the Court finds that Tinker has waived any argument that the Appeals
Council erred in its decision regarding NP Gilbreath’s evaluation.
That said, even if Tinker preserved the argument, it would fail. The Appeals
Council refused to consider NP Gilbreath’s evaluation because, in the Council’s

opinion, there was no reasonable probability that NP Gilbreath’s evaluation would
have changed the ALJ’s decision. R. at 2. This Court agrees for three reasons. First,
a nurse practitioner is not an acceptable medical source. See 20 C.F.R. § 404.1513(a)
(2019). The ALJ made this point regarding the chiropractor’s x-rays (R. at 113), and
she surely would have made the same point regarding a nurse practitioner.
Second, NP Gilbreath’s depression diagnosis suffers from the same problem
as Dr. Wilson’s: She fails to opine that Tinker’s depression in 2011-12 prevented
Tinker from being gainfully employed in 2011-12. That NP Gilbreath deemed
Tinker to suffer from depression in 2017 would be irrelevant to the ALJ’s decision.
Third, NP Gilbreath’s evaluation contains information that cuts against a
finding that Tinker’s depression prevents him from being gainfully employed. For
example, NP Gilbreath determined that:
• Tinker could understand and carry out short, simple instructions;
• Tinker could maintain attention and concentration for at least two hours;
• Tinker could interact with supervisors and co-workers; and,
• Tinker could sustain an ordinary routine without special supervision.
R. at 90. For these reasons, individually and collectively, the Appeals Council
correctly determined that there is no reasonable probability that NP Gilbreath’s
evaluation would have changed the outcome of the ALJ’s decision.
4. Huntsville Hospital Records: Tinker visited Huntsville Hospital in October

2015 to have minor surgery on his thumb, which he cut while using a circular saw
approximately 10 days earlier. R. at 55-89. The Appeals Council refused to consider
the hospital records because they did not relate to the relevant time period of April
2011 to April 2012. R. at 2. The Court agrees. Nothing in these records appear to
relate to the question of whether Tinker suffered an impairment in 2011-12 that
prevented him from being employed in 2011-12.
Furthermore, Tinker failed to make an argument in his brief or his reply brief
that points to what part of the hospital records are chronologically relevant.
Accordingly, the Court finds that Tinker has waived any argument that the Appeals
Council erred in its decision regarding the hospital records.
Finally, the Court notes that, even if this argument was preserved and
chronologically relevant, evidence that Tinker required surgery because he cut
himself with a circular saw would not have changed the outcome of the ALJ’s
decision. If anything, that Tinker was using a circular saw cuts against the argument
that he could not find gainful employment.
For these reasons, individually and collectively, the Appeals Council correctly
refused to consider the Huntsville Hospital records.
5. Tinker’s School Records: Tinker introduced his grade school records to
the Appeals Council to argue that he suffered from low intellectual capacity. R. at
28-31. The Appeals Council refused to consider this evidence because, in the

Council’s opinion, there was no reasonable probability that introducing Tinker’s
school records would have affected the ALJ’s decision. R. at 2.
This Court finds that Tinker has waived this argument for two reasons. First,
Tinker failed to make an argument in his brief or his reply brief that specifically
addresses the Council’s decision to not consider his school records, and Tinker failed
to mention his school records in his list of “errors of law” and his argument headings.
Second, at the oral argument, Tinker essentially conceded that his low intellect
argument was meritless:
THE COURT: The problem I think for your case, though, is when you talk
about low IQ, he had the low IQ, according to your records, since he
was in elementary school. He’s had it his whole life. But as you just
admitted to me, he has a very good work history. I mean, I listed all of
the things that he’s done over his lifetime, and it includes, he worked
for a furniture store, a flooring company, a paper company, a spinning
mill, he was the maintenance man at an apartment complex. I mean, he
even admitted in these records that he was still working on weedeaters,
lawnmowers and other equipment. It would appear that throughout his
whole life his low IQ has not stopped him from holding a job.
MR. ALLENSTEIN: He has excelled really despite his low IQ, so I believe
the depression would be the winning argument as opposed to the low
IQ.
Oral Argument Tr. 11-12.
If it is not waived, Tinker’s argument is without merit. As demonstrated by
the above quote, Tinker has held many jobs during his life, despite any intellectual
limitations. Accordingly, the Appeals Council rightly determined that evidence of
Tinker’s school records from 1965 to 1973 would not have changed the ALJ’s

decision regarding Tinker’s ability to be gainfully employed in 2011 and 2012.
***
In summary, the Appeals Council correctly refused to consider any of
Tinker’s five new pieces of evidence. While each piece of evidence suffers from its
own deficiencies, each shares a common problem—i.e. the failure to contain
evidence and/or a proper medical opinion that Tinker’s ailments in 2011-12
prevented him from working in 2011-12. Instead, Tinker’s new evidence appears
focused on an argument that Tinker’s back pain and depression have worsened over
the years. See R. at 106 (Tinker testifying to the ALJ that his back pain was
“probably a six and seven” out of ten in 2011-12 but had “gotten worser and worser”
in the years since); Oral Argument Tr. 13-14 (Tinker’s counsel affirming to this
Court that his back pain and depression had worsened since the ALJ proceedings).
But, as the Eleventh Circuit has noted, evidence of deterioration after the ALJ’s
decision “may subsequently entitle a claimant to benefit in a new application, but it
is not probative of whether a person was disabled during the specific period under
review.” Leiter v. SSA Commissioner, 377 Fed. Appx. 944, 950 (11th Cir. 2010).
B. The Appeals Council gave sufficient reasoning in its written decision.
Tinker argues that his case must be remanded because the Appeals Council
“offers no material basis for affirming the [ALJ’s] decision” and instead gave
“perfunctory adherence” to the ALJ’s decision. Tinker Br. 30.
The Eleventh Circuit has stated that “the Appeals Council is not required to

explain its rationale for denying a request for review[.]”

Mitchell v. SSA

Commissioner, 771 F.3d 780, 784 (11th Cir. 2014). As long as the Council’s
decision reflects that the Council “adequately evaluated” an applicant’s new
evidence, id., remand for a more detailed opinion is unwarranted.
This Court is satisfied from reading the Appeals Council’s decision that the
Council adequately evaluated Tinker’s new evidence.

Granted, the Council’s

analysis is short, but it plainly demonstrates that the Council reviewed each of the
five new pieces of evidence and provided a CFR-based reason for refusing to
reconsider the ALJ’s decision in light of each new piece of evidence. See id.
Tellingly, the Court and the parties were able to hold oral argument on the
Appeals Council’s rationale for refusing to consider each piece of evidence, and this
Court was able to evaluate the Council’s rationale regarding each piece of evidence
in Part A of this decision. That being the case, remanding this action to require the
Appeals Council to provide a more detailed analysis would be pointless.
C. Substantial evidence supports the Commissioner’s denial of benefits.
Tinker next argues that “the ALJ decision was not based on substantial
evidence when the submissions to the Appeals Council are considered.” Tinker Br.
32. In other words, Tinker argues that when this Court adds (a) the five new pieces
of evidence he presented to the Appeals Council to (b) the testimony and evidence
provided to the ALJ, the Court must determine that benefits are warranted. Tinker

clarified his “ALJ evidence + Appeals Council evidence” argument as follows
during the oral argument before this Court:
MR. ALLENSTEIN: So we are not challenging the ALJ decision, and now the
question is, based on the whole record, is there a – is the decision – is the
denial based on substantial evidence. And so now you have to consider what’s
submitted to the Appeals Council.
Oral Argument Tr. 25.
As detailed in Part A of this opinion, the Appeals Council rightly determined
that Tinker’s five new pieces of evidence failed to meet the CFR requirement that
additional evidence is “new, material, and relates to the period on or before the date
of the hearing decision, and there is a reasonable probability that the additional
evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)
(2019).

Accordingly, the Court cannot judge the ALJ’s decision based on a

combination of the evidence Tinker presented to the ALJ and the evidence he
presented to the Appeals Council, as Tinker requests. See Falge v. Apfel, 150 F.3d
1320, 1323 (11th Cir. 1998) (“when the AC has denied review, we will look only to
the evidence actually presented to the ALJ in determining whether the ALJ's decision
is supported by substantial evidence.”).
In short, the Court’s review is limited to the evidence that Tinker presented to
the ALJ. See id. Because Tinker has stated that he is “not challenging the ALJ
decision” based solely on the evidence he presented to the ALJ (Oral Argument Tr.
25), Tinker cannot be entitled to relief.

D. The ALJ considered the ailments that Tinker presented to her.
Tinker next argues that “the ALJ failed to consider the following ailments:
bilateral knee pain, anxiety, depression, PTSD, and low IQ,” when making her
decision. Tinker Br. 32. But the ALJ can hardly be held at fault; Tinker did not
argue these ailments to the ALJ.
Tinker was represented by a non-attorney representative before the ALJ, then
by an attorney before the Appeals Council and this Court. Tinker’s non-attorney
representative informed the ALJ that Tinker suffered from “the following severe
impairments: back and neck problems, hypertension, headaches with difficulty
walking due to back, dizziness and SOB[.]” R. at 240. As noted throughout this
opinion, Tinker’s evidence to the ALJ was focused on his back and neck pain.
Tinker’s present counsel acknowledged to this Court that the non-attorney
representative did not argue the additional impairments at issue here to the ALJ:
THE COURT: And the first question I had for you is, I read The ALJ’s decision
and what was before the ALJ and the only argument that was made by the
representative was his back and neck pains. She didn’t argue at all about
depression or low intellectual capacity, basically the things you have added
were not argued to the ALJ, correct?
MR. ALLENSTEIN: That’s right. And I would say that’s due to inadequate
representation in addition to the claimant’s low IQ.
Oral Argument Tr. 9.
The ALJ “cannot be faulted for having failed to weigh evidence never
presented to [her].” Falge, 150 F.3d at 1323. Accordingly, this argument does not

entitle Tinker to relief.
E. The ALJ needn’t consider Grid Rule 201.10.
Tinker’s final argument is that that the ALJ failed to consider MedicalVocational Guideline (“Grid”) 201.10 when deciding to deny his application. Tinker
Br. 33-34. The Grid Rules, however, only become relevant in Step 5 of the SSA’s
five-step analysis. See 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 404.1560, 404.1569
(2019). As Tinker conceded during the oral argument, see Oral Argument Tr. 13,
proper application of Grid Rule 201.10 in Step 5 is irrelevant if the ALJ properly
denied Tinker’s claims in Step 2.
For the reasons previously detailed in this opinion, the ALJ properly denied
Tinker’s application in Step 2. Accordingly, Tinker cannot be entitled to relief based
on an argument that the ALJ erred in Step 5.
___
Tinker has failed to demonstrate that either the ALJ or the Appeals Council
erred below. Therefore, the decision of the SSA Commissioner is AFFIRMED. A
separate order will be entered.
DONE on September 6, 2019.

_________________________________
COREY L. MAZE
UNITED STATES DISTRICT JUDGE