McComb v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER DISMISSING CASE - The Court AFFIRMS the decision of the Commissioner and costs are taxed against claimant. Signed by Judge C Lynwood Smith, Jr on 6/3/2021. (AHI )
2021 Jun-03 PM 03:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MELLIA SHEA MCCOMB,
ANDREW SAUL, Commissioner,
Social Security Administration,
Civil Action No. 4:20-CV-01171-CLS
MEMORANDUM OPINION AND ORDER
Mellia Shea McComb commenced this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner of the Social
Security Administration, affirming the decision of the Administrative Law Judge
(“ALJ”) and, thereby, denying her claim for a period of disability and disability
The court’s role in reviewing clams brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether the correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
Doc. no. 1 (Complaint).
(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the Appeals Council failed to properly consider newly submitted
evidence, and that the ALJ’s finding of medical improvement is not supported by
substantial evidence when the new evidence is considered.2 Upon review of the
record, the court concludes that those contentions lack merit, and the Commissioner’s
ruling is due to be affirmed.
I. PROCEDURAL HISTORY
Claimant was found to be disabled on July 28, 2010, due to the following
medically determinable impairments:
major depressive disorder; borderline
personality disorder; and history of substance abuse.3 The July 28, 2010 disability
determination serves as claimant’s “comparison point decision.”4
A disability officer later determined that, as of June 1, 2017, claimant had
experienced “medical improvement.”5 The ALJ affirmed the disability officer’s
finding of medical improvement in a decision dated October 10, 2019. The ALJ’s
See doc. no. 9 (Brief in Support of Disability), at 18-25.
decision, which is the subject of this appeal, found that claimant has had the
following medically determinable impairments since her date of medical
improvement: bipolar disorder with psychosis; anxiety; borderline personality
disorder; chronic pain syndrome; traumatic arthritis; obesity; and foot drop.6 The
ALJ further determined that, despite those impairments, claimant possessed the
residual functional capacity to perform sedentary work with additional postural
The Appeals Council Properly Considered the New Evidence.
Claimant first argues that the Appeals Council inappropriately failed to
consider new evidence.
When a claimant submits new evidence to the AC [i.e., the Appeals
Council], the district court must consider the entire record, including the
evidence submitted to the AC, to determine whether the denial of
benefits was erroneous. Ingram [v. Commissioner of Social Security
Administration], 496 F.3d [1253,] 1262 [(11th Cir. 2007)]. Remand is
appropriate when a district court fails to consider the record as a whole,
including evidence submitted for the first time to the AC, in determining
whether the Commissioner’s final decision is supported by substantial
evidence. Id. at 1266-67. The new evidence must relate back to the
time period on or before the date of the ALJ’s decision. 20 C.F.R. §
Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008) (alterations and emphasis
supplied). Moreover, new evidence should be considered if there is a reasonable
possibility that it would have changed the administrative result. Washington v. Social
Security Administration, Commissioner, 806 F.3d 1317, 1321 (11th Cir. 2015).
Claimant submitted eight new pieces of evidence to the Appeals Council: (1)
transcripts of the hearings conducted by the Administrative Law Judge; (2) an
affidavit from the claimant’s mother, Debbie Simpson, dated November 15, 2019; (3)
a mental health statement from Dr. June Nichols, a psychologist who conducted an
evaluation of the claimant at the request of claimant’s counsel, dated January 29,
2020; (4) a psychological evaluation authored by Dr. June Nichols and dated January
7, 2020; (5) medical records from Highland Health Systems dated January 31, 2019
through December 19, 2019; (6) clinic notes from UAB Medicine dated September
10, 2018; (7) medical records from Woodland Family Healthcare dated July 25, 2018
through October 21, 2019; and (8) a physical capacities form from Dr. Kevin Hart
dated November 18, 2019.8 The Appeals Council found that the evidence did not
“show a reasonable probability that it would change the outcome of the decision.”9
Tr. 2. See also id. at 16 (Debbie Simpson Affidavit); id. at 37-56 (hearing transcripts); id.
at 57-60 (September 10, 2018 UAB Medicine Notes); id. at 61-83 (Woodland Family Healthcare
records); id. at 84 (January 29, 2020 mental health statement by Dr. June Nichols); id. at 85-88
(January 7, 2020 evaluation by Dr. June Nichols); id. at 89-161 (Highland Health Systems records);
id. at 162 (November 18, 2019 physical capacities form by Dr. Kevin Hart).
Claimant argues that the Appeals Council erroneously refused to consider the
“new, material, and chronologically relevant evidence.” Doc. no. 9 (Claimant’s
Brief), at 19 (quoting Washington, 806 F.3d at 1320). However, the Appeals Council
stated that it did consider the new evidence, but that it did not find the evidence
demonstrated a “reasonable probability that it would change the outcome of the
decision.”10 The Appeals Council is not required to explain in detail why it reached
that conclusion. See Mitchell v. Commissioner, Social Security Administration, 771
F.3d 780, 783 (11th Cir. 2014) (No precedent “requires the Appeals Council to
provide a detailed discussion of a claimant’s new evidence when denying a request
for review.”). Accordingly, the Appeals Council did not erroneously fail to consider
the new evidence.
The ALJ’s Decision Is Supported by Substantial Evidence.
Claimant next argues that the ALJ’s finding of medical improvement was not
supported by substantial evidence. In support of that contention claimant states that,
“[w]hen the submissions to the Appeals Council are considered, the Commissioner
failed to show improvement.” Doc. no. 9 (Claimant’s Brief), at 25 (alteration
Because claimant’s original brief provided no explanation or evidentiary
support for that assertion, this court ordered claimant’s attorney to file a supplemental
brief that supplied facts in support of counsel’s conclusory argument. See doc. no.
15. The supplemental brief of claimant’s counsel argues that the doctors whose
opinions the ALJ considered did not have an opportunity to review the new evidence
submitted to the Appeals Council. See doc. no. 18 (Supplemental Brief), at 20-24.
The new evidence, however, is consistent with the medical evidence already in the
record, and likely would not have altered those doctor’s opinions.
In finding medical improvement, the ALJ first evaluated claimant’s progress
on her mental health impairments present at the time of the comparison point
decision. She found that, since June 1, 2017, claimant’s mental status had been
stabilized with medication.11 The ALJ additionally evaluated Listing 12.04, under
which claimant previously received disability benefits, and found that claimant no
longer had any marked or extreme limitations that would meet the requirements for
the Listing.12 The new evidence submitted to the Appeals Council, including the
psychological evaluation performed by Dr. June Nichols, does not alter the ALJ’s
finding that claimant’s mental status is stable with medication. In fact, after a brief
See Tr. 28-29.
See Tr. 23-24.
period where claimant stopped taking her medication and became unstable,13 her
medical records note that once she again began to take her medication, her mood and
thought content were appropriate, her memory and attention were intact, her judgment
and insight were fair, and she was feeling “great.”14 Dr. Nichols’s evaluation even
specifically notes that claimant described her medication as keeping her “stable.”15
Dr. Nichols’s assertions that claimant would have to miss ten to fifteen days in a
thirty-day period, or that she would be off-task for ten to twenty percent of an eighthour work day are not supported by the evidence that shows claimant’s mental health
is well-managed with medication.16 Accordingly, the ALJ’s decision is still supported
by substantial evidence.
The ALJ also evaluated claimant’s physical disabilities. In fact, the ALJ’s
residual functional capacity finding was based primarily on the physical injuries
claimant suffered in a 2011 motor vehicle accident. Those injuries have caused
claimant chronic pain and have given her drop foot. Based on the medical evidence
about claimant’s physical incapacities, the ALJ found that she could perform
See Tr. 89 (“She apparently has been depressed and has been making suicidal statements.
. . . Has been off meds for 1 month. Was doing better on meds.”) (Jan. 31, 2019).
See Tr. 89-127; Tr. 103 (“I am doing great.”) (Apr. 25, 2019).
See Tr. 84.
sedentary work with additional postural limitations.17
The additional medical records submitted to the Appeals Council are not
remarkably different from the medical records available to the ALJ when she made
her decision. Those new records document complaints of left hip and right ankle
pain, and record that claimant often stabilizes her right ankle with a boot. Even so,
the new records also note normal range of motion and normal gait.18 That evidence
continues to support the ALJ’s finding that claimant could perform sedentary work.
Claimant also submitted a physical capacities form from Dr. Kevin Hart which
is even more restrictive than the opinion from Dr. Rickless already discounted by the
ALJ. Dr. Hart’s assertions that claimant would be off-task twenty-five percent of an
eight-hour work day and that she would miss ten to twelve days of a thirty-day period
are not supported by the evidence of record.19 Additionally, it is unclear whether “Dr.
Kevin Hart” is the same person described elsewhere in this record as “James Kevin
Hart, P.A.”20 A physician’s assistant (“P.A.”) is not considered to be an “acceptable
medical source”; accordingly, if the individuals referred to in this record as “Dr.
Kevin Hart” and “James Kevin Hart, P.A.,” are the same person, the opinion of that
See Tr. 26-29.
Tr. 57-58, 64, 72-73, 80, 93, 99, 105, 111, 117, 124.
See Tr. 162.
The Commissioner makes this observation in his brief, but claimant does not respond to
the assertion. See doc. no. 11 (Commissioner’s Brief), at 17 n.8.
individual would not be due any special consideration or weight. See 24 C.F.R. §§
404.1527(a)(1); 404.1513(a), (d)(1).
Moreover, the ALJ’s residual functional
capacity determination still would be supported by substantial evidence.
The court concludes that the ALJ’s decision was based upon substantial
evidence and in accordance with applicable legal standards. Accordingly, the
decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The
Clerk is directed to close this file.
DONE and ORDERED this 3rd day of June, 2021.
Senior United States District Judge
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