Rutledge v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION: the court AFFIRMS the Commissioner's decision. The court will enter a separate final judgment. Signed by Magistrate Judge Herman N Johnson, Jr on 9/8/21. (BJL)

FILED
2021 Sep-08 AM 09:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ERICA LATREICE RENEE RUTLEDGE,
Plaintiff
vs.
SOCIAL SECURITYADMINISTRATION,
COMMISSIONER,
Defendant

)
)
)
)
)
)
)
)
)
)

Case No. 4:20-cv-00708-HNJ

MEMORANDUM OPINION
Plaintiff Erica Rutledge seeks judicial review pursuant to 42 U.S.C. § 405(g) of
an adverse, final decision of the Commissioner of the Social Security Administration
(“Commissioner”), regarding her claim for a period of disability, disability insurance,
and supplemental security income benefits. The undersigned carefully considered the
record, and for the reasons expressed herein, AFFIRMS the Commissioner’s decision.1
LAW AND STANDARD OF REVIEW
To qualify for benefits, the claimant must be disabled as defined by the Social
Security Act and the Regulations promulgated thereunder. The Regulations define
“disabled” as the “inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the
parties have voluntarily consented to have a United States Magistrate Judge conduct any and all
proceedings, including the entry of final judgment. (Doc. 10).
1

in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.”

20 C.F.R. §§ 404.1505(a), 416.905(a).

To establish an

entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether a claimant suffers a disability, the Commissioner,
through an Administrative Law Judge (ALJ), works through a five-step sequential
evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The burden rests
upon the claimant at the first four steps of this five-step process; the Commissioner
sustains the burden at step five, if the evaluation proceeds that far. Washington v.
Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).
In the first step, the claimant cannot be currently engaged in substantial gainful
activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must prove the
impairment is “severe” in that it “significantly limits [the] physical or mental ability to
do basic work activities . . . .” Id. at §§ 404.1520(c), 416.920(c).
At step three, the evaluator must conclude the claimant is disabled if the
impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part
404, Subpart P, App. 1, §§ 1.00–114.02. Id. at §§ 404.1520(d), 416.920(d). If a
claimant’s impairment meets the applicable criteria at this step, that claimant’s
2

impairment would prevent any person from performing substantial gainful activity. 20
C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii), 416.925. That is, a claimant
who satisfies steps one and two qualifies automatically for disability benefits if the
claimant suffers a listed impairment. See Williams v. Astrue, 416 F. App’x 861, 862 (11th
Cir. 2011) (“If, at the third step, [the claimant] proves that [an] impairment or
combination of impairments meets or equals a listed impairment, [the claimant] is
automatically found disabled regardless of age, education, or work experience.”) (citing
20 C.F.R. § 416.920; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)).
If the claimant’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluation proceeds to the fourth step, where
the claimant demonstrates an incapacity to meet the physical and mental demands of
past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). At this step, the evaluator
must determine whether the claimant has the residual functional capacity (“RFC”) to
perform the requirements of past relevant work.

See id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). If the claimant’s impairment or combination of impairments does
not prevent performance of past relevant work, the evaluator will determine the
claimant is not disabled. See id.
If the claimant succeeds at the preceding step, the fifth step shifts the burden to
the Commissioner to provide evidence, considering the claimant’s RFC, age, education
and past work experience, that the claimant is capable of performing other work. 20
3

C.F.R. §§ 404.1512(b)(3), 416.912(b)(3), 404.1520(g), 416.920(g). If the claimant can
perform other work, the evaluator will not find the claimant disabled. See id. §§
404.1520(a)(4)(v), 416.920(a)(4)(v); see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the
claimant cannot perform other work, the evaluator will find the claimant disabled. 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
The court reviews the ALJ’s “‘decision with deference to the factual findings and
close scrutiny of the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin.,
783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991)). The court must determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the proper legal
standards.

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

Although the court must “scrutinize the record as a whole . . . to determine if the
decision reached is reasonable . . . and supported by substantial evidence,” Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment” for that of the
ALJ. Winschel, 631 F.3d at 1178 (citations and internal quotation marks omitted).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (citations
omitted). Nonetheless, substantial evidence exists even if the evidence preponderates

4

against the Commissioner’s decision. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005).
FACTUAL AND PROCEDURAL HISTORY
Ms. Rutledge, age 40 at the time of the ALJ hearing, protectively filed
applications for a period of disability, disability insurance, and supplemental security
income benefits on September 12, 2016, alleging disability as of August 15, 2016. (Tr.
179, 296-305). The Commissioner denied Rutledge’s claims, and Rutledge timely filed
a request for hearing on February 2, 2017. (Tr. 199-238, 241-42). The Administrative
Law Judge (“ALJ”) held a hearing on October 30, 2018 (Tr. 179-97), and issued an
opinion on March 29, 2019, denying Rutledge’s claim. (Tr. 21-38).
Applying the five-step sequential process, the ALJ found at step one that
Rutledge did not engage in substantial gainful activity after August 15, 2016, her alleged
onset date. (Tr. 26). At step two, the ALJ found Rutledge exhibited the severe
impairments of status-post January 2015 cerebral infarction, seizure disorder, recurrent
right shoulder dislocation, obesity, and depression. (Id.). At step three, the ALJ found
that Rutledge’s impairments, or combination of impairments, did not meet or medically
equal any impairment for presumptive disability listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 28).
Next, the ALJ found that Rutledge exhibited the residual functional capacity
(“RFC”)
5

to perform a range of light work as defined in 20 CFR §§ 404.1567(b) and
416.967(b), with the following exceptions: [she] is limited to no more
than four hours of standing or walking in combination during an eighthour period. As part of the job requirements, [she] would not climb
ladders, ropes, or scaffolds; would not reach overhead with the right (nondominant) upper extremity; and would not perform commercial driving
or around hazards. [She] can occasionally climb ramps or stairs, balance,
stoop, kneel, crouch, or crawl. [She] is limited to simple, one to two-step
tasks.
(Tr. 31).
At step four, the ALJ determined Rutledge could not perform her past relevant
work as a fast food worker. (Tr. 36). At step five, the ALJ determined Rutledge could
perform a significant number of other jobs in the national economy considering her
age, education, work experience, and RFC. (Id.). Accordingly, the ALJ determined
that Rutledge has not suffered a disability, as defined by the Social Security Act, since
August 15, 2016. (Tr. 37).
Rutledge timely requested review of the ALJ’s decision. (Tr. 292-95). On April
14, 2020, the Appeals Council denied review, which deems the ALJ’s decision as the
Commissioner’s final decision.

(Tr. 1-4). On May 20, 2020, Rutledge filed her

complaint with the court seeking review of the ALJ’s decision. (Doc. 1).
ANALYSIS
In this appeal, Rutledge argues the ALJ improperly considered the opinions of
the treating and consultative physicians and improperly allowed skepticism to influence
his decision. She also asserts the Appeals Council applied an incorrect legal standard,
6

failed to adequately explain the basis of its decision, and failed to find her disabled after
reviewing the new evidence she submitted.
I.

The ALJ Properly Considered the Treating and Consulting Physicians’
Opinions
Rutledge argues the ALJ improperly considered the opinions of Leslie

Hollingsworth, her mental health counselor, Dr. Randolph (first name unknown), her
treating mental health physician, and Dr. Jimmy Oguntuyo, the consultative examiner.
As discussed below, those contentions do not withstand analysis.
The ALJ must give “substantial or considerable weight” to the opinion of a
treating physician “unless ‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2003) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
Good cause exists when: (1) the evidence did not bolster the treating physician’s
opinion; (2) the evidence supported a contrary finding; or (3) a treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records. Id. at
1241. An ALJ must clearly articulate the reasons for affording less weight to a treating
physician’s opinions. Id. An ALJ does not commit reversible error when (1) he
articulates specific reasons for declining to give the treating physician’s opinion
controlling weight, and (2) substantial evidence supports these findings. Moore, 405
F.3d at 1212.

7

To determine the weight given to any medical opinion, an ALJ must consider
several factors, including the examining relationship, the treatment relationship, the
evidence presented to support the opinion, the consistency of the opinion with other
evidence, and the specialization of the medical professional. 20 C.F.R. §404.1527(c);
see Davis v. Comm’r of Soc. Sec., 449 F. App’x 828, 832 (11th Cir. 2011) (stating that the
ALJ will give more weight to the medical opinions of a source who has examined the
plaintiff, and opinions supported by medical signs and findings and consistent with the
overall “record as a whole”). The ALJ may reject the opinion of any physician when
the evidence supports a contrary conclusion. Hearn v. Comm’r of Soc. Sec., 619 F. App’x
892, 895 (11th Cir. 2015) (citing Bloodsworth, 703 F.2d at 1240). However, the ALJ must
“state with at least some measure of clarity the grounds for [a] decision.” Winschel, 631
F.3d at 1179. This measure of clarity requires the ALJ to state the weight given to each
medical opinion and the reason therefor. Id.
A.

The ALJ Properly Considered the Opinions of Rutledge’s Treating
Mental Health Physician and Counselor

The record contains two Mental Health Source Statement forms. On October
3, 2018, an individual named Leslie Hollingsworth completed one such form. She
signed the name “Leslie Hollingsworth” on a blank line with the printed title “Dr.
Hollingsworth.” (Tr. 827). However, the record reflects that Hollingsworth is a social
worker and counselor, not a medical doctor.
8

Hollingsworth indicated Rutledge could not understand, remember, or carry out
very short and simple instructions; maintain attention, concentration and/or pace for
periods of at least two hours; perform activities within a schedule and be punctual
within customary tolerances; sustain an ordinary routine without special supervision;
adjust to routine and infrequent work changes; interact with supervisors and coworkers; maintain socially appropriate behavior; or adhere to basic standards of
neatness and cleanliness. In addition to normal workday breaks, Rutledge would
remain off-task 95% of an eight-hour workday. She would miss work 30 out of 30
days due to psychological symptoms. Rutledge’s medications would cause drowsiness,
fatigue, and increased sleep.

Hollingsworth could not state whether Rutledge’s

limitations existed back to August 15, 2016, the alleged onset date, because she began
treating Rutledge in 2017. (Tr 827).
On October 4, 2018, Dr. Randolph (first name unknown) completed an identical
form and provided the same answers Hollingsworth provided. (Tr. 828).
The ALJ afforded the two Mental Health Source Statement forms
“comparatively lesser weight regarding any assessment of the claimant’s mental
functioning.” (Tr. 35). He reasoned that Hollingsworth
is not a medical doctor, is not an acceptable medical source, and has
relatively few records of treatment of the claimant in Exhibit 8F, and in
those records she basically endorses the claimant’s statements.
However[,] these treatment records do not include any medical restriction,
or even a statement that corresponds to the factors stated about the
9

claimant’s mental functioning, except as alleged by the claimant. In
particular, none of the objective medical evidence shows a treatment
frequency or a severity of function, even as alleged by the claimant, which
corresponds to the excessive limitations in Exhibit 9F [Hollingsworth’s
form]. Similarly, Exhibit 10F stated as signed by “Dr. Randolph” does
not correspond to any treatment record. Exhibit [8]F on pages 127 and
148 include a statement (signed by Ms. Hollingsworth) that the patient
was to see Dr. Randolph on July 19, 2018. There are no psychiatric
treatment notes for that date, and no treatment note for any date was
found to be signed by “Dr. Randolph.” As with Exhibit 9F, there is no
corresponding treatment note or medical restriction from any medical
source.
Both Exhibit 9F and Exhibit 10F are completed in
approximately the same fashion, and in a handwriting and ink
characteristic that does not conform to that of the signature on Exhibit
10F. Attorney Allenstein stated at the hearing that he believed a member
of his staff completed the forms . . . .
(Id.).
During the administrative hearing, the ALJ asked Rutledge’s attorney if he
prepared the Mental Health Source Statement forms, and he responded, “Probably
someone in our office did, Judge.” (Tr. 183). Rutledge also confirmed that Leslie
Hollingsworth is her mental health therapist, not a medical doctor. She testified that
Dr. Randolph was her mental health doctor. (Id.). She last received treatment from
Dr. Randolph for medication adjustment two and one-half weeks prior to the hearing,
and she planned to see him three months thereafter. She sees Ms. Hollingsworth more
often than she sees Dr. Randolph. (Tr. 184).
The court agrees with Rutledge that the ALJ misconstrued her attorney’s
statements regarding the origin of the Mental Health Source Statement forms. To the
10

extent the ALJ suggests Rutledge’s attorney fabricated the forms and/or Dr.
Randolph’s signature, the evidence does not support that suggestion. Rutledge’s
attorney stated someone in his office likely prepared the forms, but that would comport
with the typical practice in Social Security disability cases of an attorney’s office
generating forms for a medical provider to complete. In addition, while the signature
on Dr. Randolph’s form does differ in style from the other handwriting on the form,
the other handwriting on Dr. Randolph’s form appears identical to the handwriting on
Hollingsworth’s form. Thus, it appears that Rutledge’s attorney generated the forms,
Hollingsworth made the handwritten notations on both forms and signed one form,
and Dr. Randolph signed the other forms. That would comport with the typical
practice in many doctors’ offices of a doctor signing paperwork after another member
of the staff has completed the paperwork. Thus, there exists no substantial evidentiary
foundation to question the authenticity of either form.
Even so, the ALJ’s erroneous characterization of the origin of the forms
constitutes only harmless error because the ALJ otherwise properly considered both
forms.
As discussed, the record reflects that Hollingsworth is a social worker and
counselor, not a medical doctor. Therefore, for this claim filed before the March 2017
revision to the Social Security regulations, she does not constitute an acceptable medical

11

source pursuant to Social Security law. Another district court recently summarized the
distinction between “acceptable” medical sources and “other sources:
For claims filed before March 27, 2017, the Regulations governing
evaluation of opinion evidence draw a distinction between
“acceptable” medical sources and “other” sources. 20 C.F.R. §
404.1527(a)(1); SSR 06-03p, 2006 WL 2329939 (Aug. 9,
2006). Acceptable medical sources include licensed physicians and
licensed or certified psychologists, whereas “other” sources include nurse
practitioners, physician assistants, licensed clinical social workers,
naturopaths, chiropractors, audiologists, and therapists. SSR 06-03p.
Only “acceptable” medical sources may establish the existence of a
medically determinable impairment. SSR 06-03p. And only
“acceptable medical sources” can give medical opinions that may be
entitled to significant or controlling weight. Anteau v. Comm’r of Soc. Sec.,
708 F. App’x 611, 613 (11th Cir. 2017). But “other” sources . . . may show
the severity of an individual’s impairment and how it affects the
individual’s ability to function. SSR 06-03p.
Robinson v. Commissioner of Social Security, No. 6:20-CV-1031-DNF, 2021 WL 3701558, at
*5 (M.D. Fla. Aug. 20, 2021) (footnote omitted). Thus,
[a]lthough there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain the
weight given the opinions from these “other sources,” or otherwise ensure
that the discussion of the evidence in the determination or decision allows
a claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.
SSR 06-3p, 2006 WL 2329939, at *6.2
2

The agency rescinded SSR 06-03p effective March 27, 2017. However, because the claimant filed
for disability in 2016, the ruling in effect at that time governs the analysis. SSR 96-2P, 2017 WL
3928298, at *2 (“The final rules revised these policies for claims filed on or after March 27, 2017, in
several ways. For example, in claims filed on or after March 27, 2017, the final rules state that all
medical sources, not just acceptable medical sources, can make evidence that we categorize and
12

The ALJ followed those requirements when considering Hollingsworth’s
assessment.

Even though the regulations do not require the ALJ to afford

Hollingsworth’s assessment any particular weight, he articulated that he afforded it
lesser weight, and he explained that he did so because Hollingsworth did not have a
long history of treating Rutledge, she primarily endorsed Rutledge’s statements, and
neither Hollingsworth’s records nor any of the other evidence supported the level of
restrictions Hollingsworth imposed.

Those factors all constituted permissible

considerations. See SSR 06-3p, 2006 WL 2329939, at *4-5 (the weight accorded
evidence from other sources will vary according to the particular facts of the case; the
source of the opinion, including that source’s qualifications; the opinion subject matter;
the length of the relationship; and other factors).
Moreover, substantial evidence supported the ALJ’s decision.

Rutledge

commenced mental health treatment at Quality of Life Health Services on December
28, 2017.

Even though Quality of Life characterized the visit as a Psychiatric

Diagnostic Evaluation, Rutledge saw Hollingsworth, a social worker and counselor, not
a psychiatrist. (Tr. 712). During that visit, Rutledge reported symptoms of depression
and anxiety. She sometimes experienced incoherent speech and trouble thinking,

consider as medical opinions.”).
13

concentrating, making decisions, and remembering. She reported that her symptoms
impaired her daily activities, ability to work, social activities, and relationships.
The mental status examination revealed normal appearance, stature, posture, eye
contact, and activity; anxious attitude toward the examiner; depressed mood; full affect;
clear speech; forgetful thought processes; normal perception and thought content; no
hallucinations; average intelligence; and normal insight and judgment. She denied
suicidal or homicidal ideation. Hollingsworth assessed a GAF score of 45, indicating
serious symptoms. She educated Rutledge on cognitive behavioral techniques and
relaxation exercises, provided her with a wellness checklist, and encouraged her to
increase her activity level when her pain was manageable. She also referred Rutledge
to Dr. Randolph for a psychiatric assessment. (Tr. 712-16).
As the ALJ stated, the record does not contain any treatment records from Dr.
Randolph.

Rather, Rutledge received psychological counseling from Cathy Keel,

another social worker, on January 4, 2018. Keel stated that Dr. Randolph “wants
therapist to gauge clinical response to medication and set follow up psychiatric
appointment based on this assessment.” (Tr. 717-18).
Rutledge again received counseling from Hollingsworth on February 7, 2018.
She reported her medications made her feel dizzy and drowsy, but they helped with
mood swings, outbursts, irritability, frustration, and restlessness.

However, she

continued to feel worthlessness and guilt about not being able to work, suffer
14

nightmares from past trauma, and experience trouble with speech, thinking,
concentrating, remembering, and making decisions. Hollingsworth assessed moderate
major depressive disorder, and she again assigned a GAF score of 45. (Tr. 726-30).
Hollingsworth counseled Rutledge again on April 5, 2018. Rutledge reported
minimal progress, as she continued to feel sad and tearful, had no desire to leave her
home, slept most of the day, and experienced mood swings. During the clinical
examination, Rutledge exhibited sad, tearful affect, but no significant changes in her
thought processes, orientation, motor activity, speech, behavior, or functioning. She
continued to deny suicidal or homicidal ideation. Hollingsworth assessed moderate
major depressive disorder and moderate post-traumatic stress disorder, and she again
assigned a GAF score of 45. (Tr. 739-42).
Hollingsworth counseled Rutledge again on May 31, 2018. Rutledge reported
minimal progress, but she continued to report symptoms of depression and anxiety.
The clinical examination revealed depressed mood, full affect, logical thought
processes, normal motor activity and speech, and tearful behavior, but no suicidal or
homicidal ideation. Hollingsworth again assessed moderate major depressive disorder
and assigned a GAF score of 46. (Tr. 752-55).
Rutledge next received counseling from Hollingsworth on July 11, 2018. She
reported minimal progress, and the mental examination produced no significant
changes in mood, affect, thought processes, orientation, motor activity, speech,
15

behavior, or functioning. She denied suicidal or homicidal ideation. Hollingsworth
again assessed moderate major depressive disorder and assigned a GAF score of 46.
(Tr. 774).
Thus, the record reflects Hollingsworth treated Rutledge on five occasions
during an approximate seven-month period prior to the ALJ’s decision, consistent with
the ALJ’s observation that Rutledge saw Hollingsworth on relatively few occasions. In
addition, although Hollingsworth’s Quality of Life records reflect she experienced
depression and anxiety, they do not document the disabling level of mental impairments
Hollingsworth assessed. Indeed, despite Hollingsworth’s assignment of a GAF score
indicating serious symptoms, she assessed Rutledge with only moderate major
depressive disorder, and appeared to base her assessments primarily upon Rutledge’s
subjective complaints, as the ALJ observed. In comparison, the clinical assessments
revealed relatively normal findings other than some tearfulness, anxiety, and
forgetfulness. Moreover, when Rutledge presented to Quality of Life for treatment of
her physical conditions, the clinical examinations also produced normal mental health
findings. (Tr. 724, 736, 748, 759, 767, 780, 788). The ALJ acknowledged Rutledge
experienced some mental health problems, and he incorporated those conditions into
his residual functional capacity finding by limiting Rutledge to simple, one- to two-step
tasks. (Tr. 31).

16

Thus, the record does not support a finding that the ALJ erred in evaluating
Hollingsworth’s assessment.
For similar reasons, the ALJ did not err by affording less weight to Dr.
Randolph’s assessment. The Commissioner argues Dr. Randolph did not serve as
Rutledge’s treating physician, and his assessment consequently did not deserve the
deference normally afforded to treating physician opinions. The record does not
provide a definitive resolution to that argument. On one hand, the record does not
contain an actual treatment record from Dr. Randolph. On the other hand, some of
Rutledge’s mental health counseling records include references to Dr. Randolph’s
treatment plan, indicating that Dr. Randolph did in fact treat Rutledge, and Rutledge
testified Dr. Randolph was her mental health doctor.
However, the court can persist despite that discrepancy: even if Dr. Randolph
constituted a treating physician, the ALJ still demonstrated good cause for affording
less weight to Dr. Randolph’s assessment.

As discussed, the ALJ found Dr.

Randolph’s assessment inconsistent with Rutledge’s treatment records from Quality of
Life and the other record evidence.

Those reasons constituted a permissible

consideration, and as discussed regarding Hollingsworth’s assessment, substantial
evidence supported the ALJ’s conclusion.
In summary, the ALJ properly considered the Mental Health Source Statement
forms from both Hollingsworth and Dr. Randolph.
17

B.

The ALJ Properly Considered the Consultative Examiner’s Opinion

On December 5, 2016, Dr. Jimmy Oguntuyo conducted a consultative
examination on behalf of the Commissioner. Rutledge reported suffering a stroke on
December 31, 2015, and she continued to experience right side weakness of the upper
extremity, right shoulder pain, and numbness and tingling of the right upper extremity
and right hand. She also reported a seizure disorder, and she injured her right shoulder
during a recent seizure episode. She ranked her shoulder pain at a level eight out of
ten, but the pain waxed and waned with use, rest, and anti-inflammatory medications.
She reported lumbosacral pain at a level six to eight out of ten, which increased with
activities such as bending, prolonged sitting, standing, walking, and lifting.
During the clinical neurological examination, Rutledge exhibited full alertness
and orientation, decreased sensation in the right upper extremity, intact proprioception
and vibration senses, wide-based gait, full left hand grip strength, 3-4/5 right hand grip
strength, and the abilities to toe walk, heel walk, squat, rise, button, tie shoelaces, pick
up small objects, hold a glass, and turn a doorknob. She displayed decreased range of
motion in the right shoulder during abduction, adduction, forward elevation, and
internal and external rotation. The range of motion in her other joints fell within
normal limits. (Tr. 619-25).
Dr. Oguntuyo stated Rutledge

18

may not be able to perform any meaningful work related activities that
may involve prolonged sitting, standing, walking, lifting, carrying, [or]
handling objects, because of the CVA [acute infarct of the right
frontoparietal lobe with associated vasogenic edema and tiny acute infarct
of the left lobe of the cerebellar] with right hemi-paresis/hemiplegia,
history of seizure disorders requiring the use of anti-seizure medications
[Keppra and Dilantin], dislocation of the right shoulder with associated
pain and neuropathy following episode of seizures.
Other comorbidities include: Hypertension, dizziness, obesity,
BMI 33.67 and peripheral neuropathy.
[T]he drowsiness and
somnolence from the antiseizure medications could also be incapacitating.
(Tr. 621 (second and third brackets in original)).
The ALJ afforded Dr. Oguntuyo’s assessment “some weight,” but he did not
fully credit Dr. Oguntuyo’s opinions to the extent they indicated Rutledge could not
perform any work activity. (Tr. 33). Rutledge argues the ALJ failed to articulate with
the required level of clarity his reasons for not fully crediting Dr. Oguntuyo’s
assessment, and he thereby substituted his own judgment for the doctor’s. However,
the record does not support that argument.
The ALJ stated he afforded Dr. Oguntuyo’s assessment only “some weight”
because it was “somewhat vague and unspecified, is inconsistent with the relatively
normal examination findings noted in the record, as well as the claimant’s admitted and
indicated activities and abilities, which include shopping, preparing meals, and
perform[ing] household chores . . . .” (Tr. 33). Thus, the ALJ satisfied the Eleventh

19

Circuit’s requirement to articulate the basis for his decision with “some level of clarity.”
See Winschel, 631 F.3d at 1179.3
The ALJ also properly considered the “somewhat vague and unspecified nature”
of Dr. Oguntuyo’s opinion (Tr. 33), as the regulations direct the Commissioner to
afford more weight to properly explained medical opinions.

20 C.F.R. §§

404.1527(c)(3), 416.927(c)(3) (“The better an explanation a source provides for a
medical opinion, the more weight we will give that medical opinion.”). Dr. Oguntuyo
never stated Rutledge could not perform any work-related activities involving the
physical functions listed. Rather, he stated Rutledge may be unable to perform prolonged
sitting, standing, walking, lifting, carrying, or handling. The ALJ’s residual functional
capacity finding accommodated those limitations by restricting Rutledge to light work
with only four hours of standing or walking; no climbing ladders, ropes, or scaffolds;
no working around hazards; only occasionally climbing ramps and stairs; only

3

Rutledge urges the court to apply Wilder v. Chater, 64 F.3d 335 (7th Cir. 1995), where the Seventh
Circuit regarded “with a degree of suspicion the administrative law judge’s decision to go against the
only medical evidence in the case, that of a psychiatrist not retained by the applicant but appointed by
the administrative law judge himself to advise on Wilder’s condition.” Id. at 337. But the Eleventh
Circuit has rejected Wilder. Jackson v. Soc. Sec. Admin., Comm’r, 779 F. App’x 681, 685 (11th Cir. 2019)
(citing Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004)) (“[W]e decline Jackson’s
invitation to adopt the standard set forth by the Seventh Circuit in Wilder. Contrary to her assertion,
we have articulated our own standard for reviewing the opinions of agency-appointed consulting
physicians.”). Moreover, as in Jackson, in this case, Dr. Oguntuyo’s assessment did not provide the
only medical evidence regarding Rutledge’s physical limitations. Jackson, 779 F. App’x at 685
(“Moreover, Wilder is inapposite because the facts of that case differ substantially from the present
case. 64 F.3d at 338 (determining that, where the consulting physician’s opinion was the only medical
evidence regarding the applicant’s mental health impairments, the ALJ’s rejection of that opinion was
based on ‘rank conjecture’)”).
20

occasionally balancing, stooping, kneeling, crouching, and crawling; no reaching
overhead with the right upper extremity; and no commercial driving.
Moreover, the medical evidence provides substantial evidentiary support for the
ALJ’s decision to afford some weight to Dr. Oguntuyo’s opinion, except to the extent
the opinion would preclude all work activity. During Dr. Oguntuyo’s examination,
Rutledge’s only functional deficiencies consisted of decreased sensation in the right
upper extremity, reduced right hand grip strength, and decreased range of motion in
the right shoulder. Otherwise, she displayed full alertness and orientation, intact
proprioception and vibration, full left grip strength, normal range of motion in all other
joints, and the abilities to toe walk, heel walk, squat, rise, button, tie shoelaces, pick up
small objects, hold a glass, and turn a doorknob. To be sure, other medical records
indicate Rutledge continued to suffer seizures that resulted in temporary dizziness,
headaches, and gait and speech disturbances; yet, she consistently displayed full
alertness and orientation, no acute distress, no neurological deficits, normal range of
motion except in the right shoulder, normal muscle strength, good coordination, and
good memory. (Tr. 465, 470-71, 473, 479-80, 504, 529, 537, 549, 556, 583, 589, 596,
602, 633, 640, 647, 653, 660, 667, 675, 686, 702, 709, 724, 748, 759, 767, 780, 788, 891).
The ALJ also properly relied upon the assessment of Dr. Maria Wellman, the
state agency physician, who reviewed Rutledge’s medical records and Dr. Oguntuyo’s
findings on December 16, 2016. Dr. Wellman determined Rutledge could occasionally
21

lift and/or carry 20 pounds and frequently lift and/or carry ten pounds. She could
stand and/or walk four hours and sit six hours during an eight-hour day.

She

experienced limitation of her ability to push and pull with her right upper extremity.
Rutledge could occasionally climb ramps and stairs; never climb ladders, ropes, or
scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl.

She could

perform unlimited handling, fingering, and feeling, but she could perform only limited
overhead reaching with the right upper extremity. She experienced no visual or
communicative limitations, and her only environmental limitations included the need
to avoid exposure to hazards such as machinery, unprotected heights, and large bodies
of water. (Tr. 208-11).
The ALJ afforded “significant, but not conclusive weight” to Dr. Wellman’s
assessment as it represented “the only supported, comprehensive, and detailed
assessment of [Rutledge’s] physical functioning,” and it was “generally consistent with
the entirety of the evidence available at that time.” (Tr. 33). The ALJ did not afford
the assessment conclusive weight as Dr. Wellman “did not have the benefit of
additional evidence submitted at the hearing level.” (Id.). That decision complies with
Social Security law, which permits an ALJ to favor a medical opinion he perceives as
the most consistent with the record evidence. See 20 C.F.R. §§ 404.1527(c), 416.927(c);
Davis, 449 F. App’x at 832.

22

The law also permits an ALJ to credit the opinion of a state agency physician
over the opinion of a consulting or treating physician, if the evidence so warrants.
[T]he opinions of State agency medical and psychological
consultants and other program physicians and psychologists can be given
weight only insofar as they are supported by evidence in the case record,
considering such factors as the supportability of the opinion in the
evidence including any evidence received at the administrative law judge
and Appeals Council levels that was not before the State agency, the
consistency of the opinion with the record as a whole, including other
medical opinions, and any explanation for the opinion provided by the
State agency medical or psychological consultant or other program
physician or psychologist.
SSR 96-6p, 1996 WL 374180, *2 (July 2, 1996). As stated in Duncan v. Berryhill, No.
3:15-cv-02164-LSC, 2017 WL 3969578 (N.D. Ala. Sept. 8, 2017):
[M]edical consultants or medical experts are highly qualified medical
specialists who are experts in the Social Security disability programs, and
their opinions may be entitled to great weight if the evidence supports
their opinions. See 20 C.F.R. §[§ 404.1527(e), 404.1513a, 416.927(e),
416.913a]; SSR 96-6p. Indeed, a medical expert’s opinion may be entitled
to greater weight than the opinions of treating or examining sources in
appropriate circumstances, such as when the medical expert has reviewed
the complete case record. See SSR 96-6p. In short, an ALJ “may reject
the opinion of any physician when the evidence supports a contrary
conclusion.” McCloud v. Barnhart, 166 Fed. Appx. 410, 418-19 (11th Cir.
2006) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)).
Id. at *4.
Here, as discussed, substantial evidence supports the ALJ’s conclusion that
Rutledge’s medical records demonstrated relatively normal examination findings.

23

Thus, Dr. Wellman’s assessment provided additional evidentiary support for the ALJ’s
decision not to fully credit Dr. Oguntuyo’s findings.
In her reply brief, Rutledge also suggests the ALJ should have obtained additional
medical information or recontacted Dr. Oguntuyo for additional explanation.
According to Social Security regulations, an ALJ should recontact a medical source or
obtain additional medical evidence if the evidence in the record “does not contain all
the information [the ALJ needs] to make [his] determination or decision.” 20 C.F.R. §§
404.1520b(b), 416.920b(b). However, an ALJ bears no responsibility to recontact
medical sources or obtain additional information when the record already contains
substantial evidence to support a decision. Robinson v. Astrue, 365 F. App’x 993, 999
(11th Cir. 2010). Because the ALJ relied upon substantial evidence contradicting Dr.
Oguntuyo’s opinion, he maintained no duty to seek clarification from Dr. Oguntuyo,
or to obtain additional medical evidence to support his decision.
In summary, the ALJ adequately articulated his reasons for rejecting Dr.
Oguntuyo’s assessment of Rutledge’s physical limitations, and he relied upon
permissible considerations, including the vague nature of the assessment, Dr.
Oguntuyo’s own examination findings, Rutledge’s other medical records, and the state
agency physician’s opinion, which provided substantial evidentiary support for the
ALJ’s residual functional capacity finding. The ALJ did not err in evaluating Dr.
Oguntuyo’s assessment.
24

II.

The Record Does Not Support Rutledge’s Allegations of Bias by the ALJ
Rutledge argues the ALJ “is extremely skeptical and his skepticism influenced his

decision.” (Doc. 11, at 45). To support that argument, Rutledge asserts that in 2019,
the ALJ “approved only 31% of the cases he has decided. In comparison, the other
ALJs in Alabama approved 48%.” (Id.).
A presumption exists that judicial and quasi-judicial officers such as ALJs present
no bias. See Schweiker v. McClure, 456 U.S. 188, 195 (1982). A claimant may overcome
this presumption by “a showing of a conflict of interest or some other specific reason
for disqualification,” yet the burden for such a showing rests upon the party asserting
such bias. Id. at 195-96. In multiple unpublished opinions, the Eleventh Circuit has
held that an ALJ’s low approval rate does not suffice, in and of itself, to demonstrate
bias. As the Eleventh Circuit recently explained,
an ALJ’s number of reversals in district court and the percentage of
disability cases the ALJ approves are general assumptions that cannot
survive the presumption of non-bias. Finally, we are not concerned with
the ALJ’s past low approval rate compared to other ALJs because in this
case the ALJ satisfied his duties at Contreras-Zambrano’s hearing to
“develop a full and fair record” and to “carefully weigh the evidence,
giving individualized consideration to each claim.”
Contreras-Zambrano v. Soc. Sec. Admin., Comm’r, 724 F. App’x 700, 703 (11th Cir. 2018)
(emphasis in original) (quoting Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir. 1996) (per
curiam)); see also Kirby v. Soc. Sec. Admin., Comm’r, 819 F. App’x 828, 836 (11th Cir. 2020)
(“While Claimant contends that the ALJ’s rulings have often been challenged and
25

reversed, he has not identified comments by the ALJ in these proceedings or any other
evidence suggesting that the ALJ prejudged his case.”); Wells v. Soc. Sec. Admin., Comm’r,
777 F. App’x 429, 433 (11th Cir. 2019) (“Wells argues that the administrative law judge
has a low rate of favorable decisions and has been reversed by the district court, but
Wells acknowledges ‘that statistics alone are not evidence of bias.’”); Putman v. Soc. Sec.
Admin., Comm’r, 705 F. App’x 929, 936 (11th Cir. 2017) (citing Schweiker, 456 U.S. at 19596) (“[W]ithout some particularized showing of a reason for disqualification, a
generalized assumption of bias derived from the ALJs low approval rate is insufficient
to rebut the presumption of impartiality.”).
Further, before assigning ALJ bias as grounds for reversal, a claimant should
raise the issue of ALJ bias at the “earliest opportunity.” 20 C.F.R. §§ 404.940,
416.1440; Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 874-75 (11th Cir. 2011). If an
ALJ declines to recuse, the claimant may seek reconsideration before the Appeals
Council. See id. However, the record does not indicate that Rutledge raised the issue
of bias at the ALJ or Appeals Council level.
Rutledge did not satisfy her burden of demonstrating the ALJ’s bias. Her
statistical arguments regarding the ALJ’s past decisions do not suffice, and she has
offered no other evidence of bias. She asserts that the ALJ “failed to consider all of
[her] severe impairments, failed to give appropriate weight to the Commissioner’s
medical expert, and failed to give appropriate weight to the treating physicians.” (Doc.
26

11, at 47). But the court already found the ALJ properly considered the treating and
examining medical opinions, and Rutledge does not explain which additional
impairments the ALJ should have considered severe.
Even if the ALJ erroneously failed to characterize other impairments as severe,
the error was harmless. The Eleventh Circuit recognizes that an ALJ’s failure to name
all of a claimant’s severe impairments at step two of the sequential process causes no
harm if the ALJ considers all impairments when evaluating the claimant’s residual
functional capacity at step four. See Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268
(11th Cir. 2019) (“Our conclusion that substantial evidence does not support the ALJ’s
finding that Schink’s mental impairments were non-severe does not necessarily end the
discussion. That finding could be harmless if the ALJ nevertheless proceeded in the
sequential evaluation, duly considered Schink’s mental impairment when assessing his
RFC, and reached conclusions about Schink’s mental capabilities supported by
substantial evidence.”). Here, the ALJ stated that his residual functional capacity
finding considered “any functional limitations resulting from the claimant’s nonsevere
impairments or the combination thereof.” (Tr. 27). Absent any specific argument
from Rutledge, the court can identify no impairment the ALJ failed to consider.
Accordingly, the ALJ’s assessment of Rutledge’s severe impairments does not provide
a substantive basis for reversal.

27

As Rutledge has identified no indication of the ALJ’s error, or any other evidence
of bias in her particular case, her general allegations of bias do not provide a basis for
questioning the ALJ’s decision. See Allenstein ex rel. Estate of Small v. Barnhart, 419 F.
Supp. 2d 1336, 1337 (N.D. Ala. 2006) (“Because substantial evidence supports the
ALJ’s decision, and there is no indication that the record was not properly developed,
the decision of the Commissioner must be affirmed.”).
III.

The Appeals Council Applied the Correct Legal Standard, Demonstrated
It Adequately Considered Rutledge’s New Evidence, and Properly
Concluded the New Evidence Did Not Deprive the ALJ’s Decision of
Substantial Evidentiary Support
Generally, a claimant may present new evidence at each stage of the

administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th
Cir. 2007) (citing 20 C.F.R. §404.900(b)). The Appeals Council will review a case if it
receives additional “evidence that is new, material, and relates to the period on or before
the date of the [ALJ] 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)(5), 416.1470(a)(5).
Here, Rutledge submitted additional medical records to the Appeals Council
after the ALJ’s decision. The Appeals Council stated it applied the following standard
when it considered the new evidence:
We receive additional evidence that you show is new, material, and
relates to the period on or before the date of the hearing decision. You
28

must also show there is a reasonable probability that the additional
evidence would change the outcome of the decision. You must show
good cause for why you missed informing us about or submitting it earlier.
(Tr. 2). The Appeals Council received medical records from Riverview Medical Center
dated November 5, 2018; records from Dowling and Caldwell dated November 6, 2018;
records from Gadsden Regional dated November 2, 2018, through November 21, 2018;
and records from Quality of Life Health Services dated October 26, 2018, through
March 20, 2019. It found that evidence “does not show a reasonable probability that
it would change the outcome of the decision,” and it consequently did not exhibit the
evidence. (Id.). The Appeals Council also received Quality of Life records dated April
3, 2019, through May 15, 2019. But as the ALJ decided Ruledge’s case through March
29, 2019, that additional evidence did not “relate to the period at issue” and did not
“affect the decision about whether [Rutledge was] disabled beginning on or before
March 29, 2019.” (Id.).
Rutledge argues the Appeals Council applied an erroneous legal standard, failed
to demonstrate that it adequately considered her new evidence, and improperly found
her not disabled despite the new evidence. As set forth below, those contentions do
not withstand review.
A.

The Appeals Council Applied the Correct Legal Standard

Rutledge argues the Appeals Council erred by considering whether her new
evidence presented a reasonable probability of changing the outcome of the ALJ’s
29

decision, when it should have considered whether the evidence presented a reasonable
possibility of changing the decision.4 That argument lacks merit. Effective January 17,
2017, the Commissioner revised 20 C.F.R. §§ 404.970(a)(5) & 416.1470(a)(5) to include
the above-stated requirement that new evidence must demonstrate a “reasonable
probability” of changing the outcome of the ALJ’s decision, with compliance required
as of May 1, 2017. See 81 FR 90987-01, 2016 WL 7242991 (Dec. 16, 2016). Thus, the
Appeals Council applied the language of the regulation in effect on the date of
Rutledge’s appeal.
Rutledge argues the revised regulation should not apply because she initially filed
her claim for benefits on September 12, 2016, prior to the effective date of the revisions.
However, the Federal Rule implementing the revisions states it takes effect on May 1,
2017, and it contains no exception for claims initially filed before the effective date.
Other district courts have applied the revised regulation when the claimant requested
Appeals Council review after May 1, 2017, as Rutledge did here. See, e.g., Benson v.
Comm’r of Soc. Sec., No. 2:19-CV-00409-SRW, 2021 WL 3686623, at *1, 4 (M.D. Ala.
Aug. 19, 2021) (applying the revised regulation when the claimant applied for benefits
on June 2, 2015, but requested Appeals Council review in 2018); O’Connell v. Comm’r of

4

In addition to the other points referenced herein, Rutledge did not explain how applying the
“reasonable possibility” standard would result in a different outcome than the “reasonable probability”
standard.
30

Soc. Sec., No. 6:18-CV-1760-ORL-EJK, 2020 WL 1492824, at *1 (M.D. Fla. Mar. 27,
2020) (applying the revised regulation when the claimant applied for benefits on
February 19, 2015); Hymes v. Comm’r of Soc. Sec., No. 8:18-CV-1816-T-MAP, 2019 WL
4565466, at *3 (M.D. Fla. Sept. 20, 2019) (applying the revised version of the regulation
effective “[w]hen Plaintiff requested Appeals Council review on November 16, 2017”);
Timmons v. Soc. Sec. Admin., Comm’r, No. 5:17-CV-00224-AKK, 2018 WL 4510512, at *5
n.7 (N.D. Ala. Sept. 20, 2018) (applying the previous version of the regulation because
the Appeals Council denied the claimant’s request for review on October 29, 2015, prior
to the revision date).5
In conclusion, the Appeals Council applied the correct legal standard.
B.

The Appeals Council Demonstrated It Adequately Considered
Rutledge’s New Evidence

Rutledge argues the Appeals Council’s decision fails to demonstrate it adequately
considered the new evidence she submitted. As discussed below, that argument does
not withstand review.

5

The court notes this contrasts with the Commissioner’s 2017 revisions to the regulations addressing
the consideration of medical evidence, whose applicability depends on the date on which the claimant
initially filed his or her claim for benefits. In the Federal Rule instituting the revisions to the medical
evidence regulations, the Commissioner repeatedly states that the revisions apply to claims filed on after
March 27, 2017. See 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017). The Federal Rule
implementing the revisions to 20 C.F.R. §§ 404.970(a)(5) & 416.1470(a)(5) makes no such reference
to the claim’s filing date. The distinction makes sense, as the medical evidence regulations apply to
the Commissioner’s consideration of evidence throughout the claims review process, while §§
404.970(a)(5) & 416.1470(a)(5) address only the activities of the Appeals Council.
31

When a claimant properly presents new evidence and the Appeals Council denies
review, the Appeals Council need not “give a detailed rationale for why each piece of
new evidence submitted to it does not change the ALJ’s decision.” Mitchell v. Comm’r,
Soc. Sec. Amin., 771 F.3d 780, 784 (11th Cir. 2014); accord Beavers ex rel. J.W. v. Soc. Sec.
Admin., Comm’r, 601 F. App’x 818, 821-22 (11th Cir. 2015) (pursuant to Mitchell, the
Appeals Council need not discuss new evidence in denying a claimant’s request for
review of the ALJ’s decision); Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 903 (11th
Cir. 2011) (In denying review, the Appeals Council did not err in providing “no
indication of the weight it gave to the newly submitted evidence or the legal standards
it applied,” or in failing to “discuss the impact of [the] evidence on [the] claims.”).
Here, the Appeals Council explained that Rutledge’s new evidence either did not
show a reasonable probability of changing the outcome of the ALJ’s decision or did not
relate to the relevant time period. It did not need to give a more detailed explanation
or address each piece of new evidence individually. See White v. Comm’r of Soc. Sec.
Admin., No. 4:16-cv-00248-JHE, 2017 WL 4246895, at *4 (N.D. Ala. Sept. 25, 2017)
(finding the Appeals Council’s explanation that “new information is about a later time”
sufficiently established that the Appeals Council considered the substance of the new
records); Zanders v. Berryhill, No. CA 16-0542-MU, 2017 WL 3710790, at *14 (S.D. Ala.
Aug. 28, 2017) (the Appeals Council’s statement that it reviewed new evidence and
concluded it related to “a later time” was sufficiently directed to materiality and/or
32

chronological relevance, and did not amount to an inadequate or perfunctory evaluation
of the evidence) (citing Mitchell, 771 F.3d at 784-85; Beavers, 601 F. App’x at 822).
Accordingly, the Appeals Council adequately explained its decision.
C.

The Appeals Council Properly Found Rutledge Not Disabled Even
After Considering the New Evidence

Rutledge argues the Appeals Council erred in denying her appeal because the
new evidence she presented to the Appeals Council demonstrated her disability. The
court reviews the Appeals Council’s decision by assessing whether Rutledge presented
new, material, and chronologically relevant evidence, and whether the new evidence
renders the ALJ’s decision erroneous by undermining the substantial evidence
supporting the ALJ’s decision. See Mitchell, 771 F.3d at 785; 20 C.F.R. §§ 404.970(a)(5),
416.1470(a)(5).
Rutledge failed to identify the new medical records that would support a finding
of disability or explain how the new records undermine the ALJ’s decision. The only
substantive discussion in her brief addresses a different claimant’s evidence and a
different claims period.6 Moreover, after reviewing Rutledge’s new evidence, the court
finds no evidence that would reasonably call into question the evidentiary basis for the
ALJ’s decision.
6

Rutledge states: “Importantly, all submissions describe physical and psychological symptoms
manifested by Howard that, due to their nature and severity, could bear on her condition during the
relevant period between 7/1/05 and the alleged onset date 3/11/11 and 1/25/13, the date of the
decision.” (Doc. 11, at 53).
33

On November 2, 2018, Rutledge presented to the emergency room with
complaints of moderate dizziness and vertigo. The clinical examination revealed
alertness, full orientation, no acute distress, intact cranial nerves, normal sensory and
motor function, normal speech, normal coordination, normal strength and range of
motion, normal back alignment, normal judgment, appropriate cooperation, and
appropriate mood and affect. A CT scan revealed evidence from a previous stroke but
otherwise no acute intracranial abnormality. (Tr. 58-60). During a November 21,
2018, emergency room visit for elevated Dilantin levels, Rutledge exhibited normal
muscle strength and range of motion, full orientation, normal sensory and motor
function, normal speech, and cooperative, appropriate mood and affect. (Tr. 49).
On November 6, 2018, Rutledge presented to Dowling & Caldwell, M.D., P.C.
with complaints of vertigo. Dr. Richard K. Caldwell recommended inner ear testing,
but Rutledge did not attend the test. (Tr. 65).
On November 5, 2018, Rutledge presented to Riverview Regional Medical
Center with complaints of dizziness and fever. She appeared fully oriented, with
normal range of motion and normal mood and affect. (Tr. 175-77).
Rutledge also continued to receive treatment from Quality of Life. On October
26, 2018, she reported dizziness and ear problems. The clinical evaluation revealed
normal memory and full orientation.

(Tr. 70-77).

On October 30, 2018, she

continued to report dizziness that caused trouble walking. The examination revealed
34

a spinning sensation and cerebellar ataxia but otherwise normal neurological and
psychiatric findings. (Tr. 78-86). On November 20, 2018, she reported worsening
dizziness and problems walking. The examination assessed no neurological findings,
but it did reveal normal musculoskeletal function, full orientation, and appropriate
mood and affect. (Tr. 87-95).
On November 26, 2018, Rutledge presented for a follow-up after her emergency
room visit for elevated Dilantin levels. The examination revealed normal memory and
full orientation. (Tr. 96-104). On January 2, 2019, Rutledge presented for a followup of her lab results. The clinical examination revealed normal musculoskeletal,
neurological, and psychiatric findings. (Tr. 110-17). On January 18, 2019, Rutledge
complained of hypertension and seizures occurring approximately once a month. She
did not comply with her anti-seizure medication. The clinical examination revealed
normal musculoskeletal, neurological, and psychiatric findings. (Tr. 124-32).
On March 6, 2019, Rutledge presented for a gynecological examination. She
demonstrated full orientation and appropriate mood and affect. (Tr. 139-45). On
May 15, 2019, after the ALJ’s decision, Rutledge presented for a follow-up of her lab
results and complaints of tooth pain. She reported experiencing two seizures the day
before. She could not afford all her medications. The physical examination revealed
normal memory, normal cranial nerve function, full orientation, and appropriate mood
and affect. (Tr. 168-73).
35

On December 13, 2018, Rutledge received psychotherapy from Hollingsworth
at Quality of Life. She reported depression and anxiety, but not as much daily
tearfulness, and not as many nightmares. She continued to experience poor appetite
and sleep disturbances. She experienced long-term memory problems and impaired
concentration. She reported feeling better physically and experiencing less dizziness.
She demonstrated euthymic and constricted mood, logical thought processes, normal
cognition, normal motor activity and strength, appropriate behavior and functioning,
and improved medical condition. She reported no suicidal or homicidal ideation.
Hollingsworth assessed moderate depressive disorder and assigned a GAF score of 45.
(Tr. 105-09).
On January 10, 2019, Rutledge again received psychotherapy from
Hollingsworth. She continued to report depression, anxiety, and sleep disturbances.
She felt physically ill and worried she had contracted a sickness. She displayed
disheveled appearance, slumped posture, intermittent eye contact, slowed activity, and
cooperative attitude.

She exhibited tired mood, flat affect, raspy speech, logical

thought processes, normal perception, no hallucinations or delusions, normal
cognition, average intelligence, and normal insight and judgment.

She denied

homicidal or suicidal ideation. Rutledge terminated the appointment due to her
physical illness, so she could go home and lie down. (Tr. 118-22).
On January 22, 2019, Rutledge received psychotherapy from Hollingsworth.
36

She reported minimal progress with her depression and anxiety, as she suffered both
good and bad days. She had suffered a light seizure that morning. She experienced
poor memory and concentration, loss of appetite, dizziness, weakness, and sleep
disturbances. Her nightmares had decreased, but she attributed that to her overall lack
of sleep. She worried about doing simple tasks at home. She denied suicidal or
homicidal ideation.

Hollingsworth assessed moderate depressive disorder and

assigned a GAF score of 46. Rutledge appeared overwhelmed by her mental and
medical conditions. (Tr. 133-38).
On March 20, 2019, Rutledge appeared for a psychiatric examination by Dr.
Dwayne Narayan, who assessed moderate depressive disorder. Rutledge reported
depression due to her inability to work. She experienced tearfulness, low appetite,
sleep disturbances, and anxiety over her bills. She tried not to take her depression
medications because they made her sleepy. During the clinical examination, she
demonstrated casual dress, pleasant and cooperative behavior, normal psychomotor
function, normal speech, normal thought process and content, happy affect, depressed
and anxious mood, full orientation, intact attention and language, adequate fund of
knowledge, and adequate abstraction, insight, and judgment. Dr. Narayan found
Rutledge’s concentration and memory unremarkable according to the clinical
conversation. (Tr. 146-60).
On April 3, 2019, after the ALJ’s decision, Rutledge received psychotherapy from
37

Hollingsworth. She reported improvement in her depression and anxiety, but she still
experienced poor memory, concentration, appetite, and sleep.

She had been

complying with her medication. She demonstrated pleasant mood and affect, logical
thought processes, normal motor activity and speech, and normal behavior and
functioning.

She denied suicidal or homicidal ideation.

Hollingsworth assessed

moderate depressive disorder and assigned a GAF score of 48. (Tr. 161-67).
The Appeals Council properly found that the April 3, 2019, and May 15, 2019,
Quality of Life records did not relate to the relevant time period, as those records dated
after the ALJ’s decision. However, even if the Appeals Council had considered those
records, the physical examinations reveal findings similar to the past findings, and the
psychotherapy records reveal that Rutledge’s depression actually improved.
The Appeals Council also properly found that the remainder of the new evidence
did not present a reasonable probability of changing the outcome of the ALJ’s decision.
The new medical records demonstrate Rutledge reported problems with dizziness, but
the clinical findings and objective testing produced mostly normal results.
Importantly, the records do not demonstrate a worsened physical condition after the
ALJ’s decision. Similarly, the psychological records demonstrate Rutledge continued
to report symptoms of depression and anxiety, but, other than GAF scores reflecting
serious symptoms, the clinical evaluations produced relatively normal findings. She
experienced elevated symptoms on one occasion, but that corresponded to an acute
38

physical illness.

Overall, the new records do not demonstrate a worsened

psychological condition after the ALJ’s decision. Therefore, they do not present a
substantial probability of changing the outcome of the decision.
In summary, the Appeals Council applied the correct legal standard, adequately
demonstrated it considered Rutledge’s new evidence, and correctly determined the new
evidence did not provide a basis for overturning the ALJ’s decision.
CONCLUSION
For the foregoing reasons, the court AFFIRMS the Commissioner’s decision.
The court will enter a separate final judgment.
DONE this 8th day of September, 2021.

____________________________________
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE

39