Wright v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION - Having carefully reviewed "those portions of the report or specified proposed findings or recommendations to which" Ms. Wright objects, see 28 U.S.C. § 636(b)(1)(C), and for the reasons outlined above, the court OV ERRULES Ms. Wright's objections, and will ADOPT the report, ACCEPT the recommendation, and AFFIRM the Commissioner's decision. The court will enter a separate final order consistent with this memorandum opinion. Signed by Judge Annemarie Carney Axon on 3/20/2020. (KEK)

FILED
2020 Mar-20 AM 09:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

MISSY ANN WRIGHT,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,

}
}
}
}
}
}
}
}
}
}

Case No.: 4:18-cv-0934-ACA

Defendant.

MEMORANDUM OPINION
Plaintiff Missy Ann Wright appeals the Social Security Commissioner’s
denial of her claim for a period of disability and disability insurance benefits. The
magistrate judge entered a report and recommendation that the court affirm the
Commissioner’s decision. (Doc. 16). Ms. Wright, through counsel, 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. Wright’s objections to the report and
recommendation.
Ms. Wright makes three objections to the magistrate judge’s report and
recommendation. First, Ms. Wright claims that the magistrate judge used the wrong
standard in determining whether the Appeals Council erred in denying review.

Second, Ms. Wright argues that the magistrate judge erred in finding that counsel
waived the issue of whether the ALJ failed to accord proper weight to the opinion of
her treating physician and, alternatively, that the magistrate judge erred in finding
her argument failed on the merits. Third, Ms. Wright argues that the magistrate
judge erred in finding that counsel waived the issue of whether the ALJ failed to
accord proper weight to consultative examiners Dr. Fleming and Dr. Wilson and,
alternatively, that the magistrate judge erred in finding her argument failed on the
merits. The court examines each objection below.
I.

Standard for Determining Whether Appeals Council Erred in Denying
Review
Ms. Wright’s first objection is that the magistrate judge applied the wrong

standard in determining whether the Appeals Council erred in denying review and
failing to remand in light of new evidence. In support of her objection, Ms. Wright
contends that the magistrate judge relied on Mitchell v. Social Security
Administration, Commissioner, 771 F.3d 780 (11th Cir. 2014), to determine whether
the evidence rendered the ALJ’s decision erroneous. (Doc. 17 at 4). Ms. Wright
argues that the correct standard of review is whether the evidence had a reasonable
probability of changing the result. (Doc. 17 at 4–6).
“‘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)
2

(quoting Ingram v. Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)). The
Appeals Council must consider evidence that is new, material, and chronologically
relevant. Id. As Ms. Wright correctly notes, material evidence is evidence that is
“relevant and probative so that there is a reasonable possibility that it would change
the administrative result.” Hyde, 823 F.2d at 459. If the Appeals Council does not
consider new, material, and chronologically relevant evidence, “it commits legal
error and remand is appropriate.” Washington, 806 F.3d at 1321. Alternatively,
when the Appeals Council considers new evidence but denies review, the court
decides whether the new evidence “render[s] the Commissioner’s denial of benefits
erroneous.” Mitchell, 771 F.3d at 785.
Here, the magistrate judge’s report cited Mitchell several times. (Doc. 16 at
35, 37). In this case, Mitchell is inapplicable because the Appeals Council did not
consider the new evidence; instead, the analysis is whether the Appeals Council
erred in refusing to consider the new evidence, as set out in Washington. Despite
the magistrate judge’s citations to Mitchell, however, it is clear that his analysis
followed Washington’s standard: he determined that the Appeals Council did not err
because although the evidence submitted to it was new and chronologically relevant,
it was not material. (Doc. 16 at 36–37). Thus, the magistrate judge did not use the
wrong legal standard.

3

Ms. Wright has not objected that, under the Washington standard, the Appeals
Council erred by declining to consider the new evidence. Accordingly, she has
abandoned any objection to the magistrate judge’s substantive recommendation to
find that the evidence was not material. Therefore, the court OVERRULES this
objection.
II.

Whether the ALJ Properly Considered the Treating Physician’s Opinion
Ms. Wright’s second objection is that the magistrate judge erred in finding

counsel waived the issue of whether the ALJ failed to accord proper weight to the
opinion of her treating physician, Dr. Rowe. (Doc. 17 at 6). She contends that her
44-page brief with “5 pages of the brief on the issue of weight accorded to the
treating physician” preserved the issue. (Doc. 17 at 8). The court agrees with the
magistrate judge’s finding that Ms. Wright waived the right to assert this argument
by not properly developing it in her brief.
Ms. Wright’s initial brief did, indeed, describe the medical evidence and the
ALJ’s decision. (See Doc. 13 at 2–18). And in the 5-page section of the brief
dedicated to the issue of the weight assigned to the opinion of Ms. Wright’s treating
physician, she described the ALJ’s weight allocation and the physician’s opinion.
(See id. at 21–22). However, the rest of that section is made up entirely of block
quotes from cases about the general issue of the weight accorded to a treating

4

physician’s opinion. It contains no argument or analysis about why this ALJ’s
weight allocation was erroneous.
This sort of perfunctory identification of issues gives neither the
Commissioner nor the court any guidance about Ms. Wright’s argument aside from
the fact that she asserts the existence of an error. See Singh v. U.S. Att’y Gen., 561
F.3d 1275, 1278 (11th Cir. 2009) (“[A]n appellant’s simply stating that an issue
exists, without further argument or discussion, constitutes abandonment of that issue
and precludes our considering the issue . . . .”); see also Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant
abandons a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”).
Accordingly, the court OVERRULES Ms. Wright’s objection to the
magistrate judge’s finding that she waived the issue.1

1

The magistrate judge recommended finding that if Ms. Wright had not waived the issue,
substantial evidence supported the ALJ’s allocation of weight to Dr. Rowe’s opinion. (Doc. 16 at
7–14). Ms. Wright also objects to that recommendation. (Doc. 17 at 6–13). Although Ms. Wright
objects to the magistrate judge’s finding of waiver, her objection is, like her initial brief, made up
entirely of block quotes from related cases. (Doc. 17 at 6–13). The only difference is the addition
of new block quotes from the magistrate judge’s report and a citation and block quote from Schink
v. Commissioner of Social Security 935 F.3d 1245, 1259–1264 (11th Cir. 2019). And like her
initial brief, her objection fails to explain the importance of the Schink decision or how it should
be applied in this case. This is insufficient to qualify as the “specific basis for objecting” as
required. (Doc. 16 at 39–40). Moreover, even if Ms. Wright had not failed to make an adequate
objection, the court accepts the magistrate judge’s finding that it fails on the merits.
5

III.

Whether Proper Weight was Accorded to Dr. Fleming and Dr. Wilson
Finally, Ms. Wright objects to the magistrate judge’s finding that she waived

the issue of whether proper weight was given to Ms. Wright’s examining
psychologists, Dr. Fleming and Dr. Wilson, by not properly developing her
argument. The magistrate judge found that Ms. Wright’s argument regarding Dr.
Fleming’s and Dr. Wilson’s opinions consisted only of block quotes from the ALJ’s
opinion and citations to general case law principles and thus Ms. Wright waived her
argument. (Doc. 16 at 25). This court agrees.
Moreover, in Ms. Wright’s objection to the magistrate judge’s report and
recommendation, she merely copies the same language used in her initial brief.

2

(Compare Doc. 13 at 26–32 and Doc. 15 at 4–6 with Doc. 17 at 13–16). The brief
contains only block quotes from the ALJ’s decision and summaries and citations to
Eleventh Circuit cases. (Doc. 17 at 13–16). The only addition is a block quote from
the magistrate judge’s finding. (Id. at 14–15). However, she presents no argument
or discussion of the facts relevant to her case. (Id.). Accordingly, the court does not
consider this to be an objection to the merits of the magistrate judge’s

2

The court has previously warned Ms. Wright’s counsel that he should not copy and paste
“objections” from briefs in support of her appeal. (See Doc. 16 at 2 n.1 Pippin v. Social Security
Administration, Commissioner, 4:18-cv-01946-ACA; Doc. 19 at n.1 Tays v. Berryhill, 4:17-cv01929-ACA). The court again repeats that warning here and expects that Ms. Wright’s counsel
will follow the court’s orders in the future when he files objections on behalf of claimants he
represents.
6

recommendation. The court therefore OVERRULES Ms. Wright’s objection to the
magistrate judge’s finding that she waived the issue.
IV.

Conclusion
Having carefully reviewed “those portions of the report or specified proposed

findings or recommendations to which” Ms. Wright objects, see 28 U.S.C.
§ 636(b)(1)(C), and for the reasons outlined above, the court OVERRULES
Ms.

Wright’s objections, and will ADOPT the report, ACCEPT the

recommendation, and AFFIRM the Commissioner’s decision.
The court will enter a separate final order consistent with this memorandum
opinion.
DONE and ORDERED this March 20, 2020.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

7