Ford v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION and ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/10/2015. (AHI)

FILED
2015 Feb-10 AM 08:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BRENDA LISA FORD,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 5:14-cv-1115-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Brenda Lisa Ford, commenced this action on June 12, 2014, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying her claim for a period of disability, disability insurance, and
supplemental security income benefits. For the reasons stated herein, the court finds
that the Commissioner’s ruling is due to be affirmed.
The court’s role in reviewing claims 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 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

(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 contends that: (1) she should have been found to be disabled under Listing
12.05C, addressing intellectual disability; (2) the Appeals Council should have
considered new and additional evidence that established her disability; (3) the ALJ
improperly considered the opinion of her treating physician; (4) the ALJ improperly
considered her subjective complaints of pain; (5) she should have been found
disabled under Medical-Vocational Rule 201.18; and (6) the Commissioner should
have “reopened” a previous administrative decision from October 4, 2010.1
1.

Listing 12.05C
Claimant asserts that she should have been found disabled pursuant to Listing

12.05C, addressing intellectual disability, which states as follows:
Intellectual disability. Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
1

Plaintiff is proceeding pro se. The brief she submitted pursuant to the court’s briefing
schedule consisted of only a single page. See doc. no. 12. But claimant also submitted several pages
of argument along with her complaint, so the court will also consider those arguments as part of
claimant’s case. See attachments to doc. no. 1 (Complaint)
2

....
C.
A valid verbal, performance, or full scale IQ of 60 through
70 and a physical or other mental impairment imposing an additional
and significant work-related limitation of function. . . .
20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.05 (listings) (italics in original, ellipses
supplied).2
The ALJ found that the “C” criteria of this listing had not been satisfied
because “claimant does not have a valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing an additional and
significant work-related limitation of function.”3 That statement, standing alone, is
not supported by the record. The ALJ acknowledged that claimant received a fullscale IQ score of 68 when she was in school,4 and it cannot be denied that claimant

2

Effective September 3, 2013, the Social Security
Administration replaced the term mental retardation with the term
intellectual disability as a listed impairment. Change in Terminology:
“Mental Retardation” to “Intellectual Disability,” 78 Fed. Reg.
46,499, 46,4501 (Aug. 1, 2013) (to be codified at 20 C.F.R. pt. 404,
subpt. P, app. 1). This change was made because “the term ‘mental
retardation’ has negative connotations,” and “has become offensive
to many people.” Id. at 46,499. But this change “d[id] not affect the
actual medical definition of the disorder or available programs or
services.” Id. at 49,500.

Frame v. Commissioner, Social Security Administration, – F. App’x – , 2015 WL 150733, *2 n.2
(11th Cir. Jan. 13, 2015) (alteration in original). Thus, even though the ALJ’s decision was “issued
before the change took effect,” this court, like the Eleventh Circuit panel in Frame, will “follow the
agency’s new nomenclature.” Id. at *2 n.2.
3

Tr. 24.

4

Tr. 25.
3

has physical impairments that impose significant work-related limitations of function.
Indeed, the ALJ found that claimant had the severe impairments of arthritis, obesity,
pain syndrome, and depression, in addition to her borderline intellectual functioning.5
The ALJ’s residual functional capacity finding also included significant limitations,
including lifting restrictions and postural and environmental limitations.6
The ALJ also found that the prefatory criteria for Listing 12.05 had not been
satisfied. The first aspect of that finding — that claimant had failed to allege onset
of mental limitations prior to age 22 — also is not supported by the record.
Claimant’s full-scale IQ score of 68 dates back to her school days, when she
obviously was less than 22 years old.
The second aspect of the ALJ’s finding about the prefatory criteria is correct,
however. The ALJ found that claimant had “engaged in education and work activities
inconsistent with limitations in adaptive functioning that would show [intellectual
disability.]”7 That finding is consistent with Eleventh Circuit precedent, which was

5

Tr. 23.

6

Tr. 26 (“[T]he claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b). She can occasionally lift and/or carry 20 pounds, and
frequently lift and/or carry ten pounds. She can sit, stand or walk for up to six hours each in an
eight-hour workday. She can occasionally climb ramps and stairs but no ladders, ropes or scaffolds.
She cannot work around dangerous machinery or unprotected heights. She is limited to work
involving simple instructions and no detailed instructions. Changes in the work setting should be
gradually introduced. She cannot work in extreme cold and heat or around vibrations. She can
occasionally stoop, crouch, kneel and crawl.”) (alteration supplied).
7

Id. (alteration supplied).
4

summarized in a recent, unreported Circuit opinion: Hickel v. Commissioner of
Social Security, 539 F. App’x 980 (11th Cir. 2013).

The binding precedent

summarized in that opinion provides
that a valid IQ score of 60 to 70 after age 22 “create[s] a rebuttable
presumption of a fairly constant IQ throughout [a claimant’s] life.”
Hodges[ v. Barnhart], 276 F.3d [1265,] 1268 [(11th Cir. 2001)]
(explaining that, absent evidence of sudden trauma that could cause
retardation, a claimant who presents a valid IQ score need not also
present evidence that her mental impairment arose before age 22).
However, “a valid I.Q. score need not be conclusive of mental
retardation where the I.Q. score is inconsistent with other evidence in
the record on the claimant’s daily activities and behavior.” Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); see also Popp v. Heckler,
779 F.2d 1497, 1499-1500 (11th Cir.1986) (stating that the ALJ may
disregard IQ test results that are inconsistent with other record evidence
because the regulations require the ALJ to examine intelligence tests and
other evidence, such as the medical report and the claimant’s daily
activities and behavior).
Hickel, 539 F. App’x at 983-84 (alterations in original) (footnote omitted).8
The ALJ’s finding also was supported by substantial evidence. The ALJ relied
primarily on the following facts:
The claimant testified that she cared for minor children and her
8

The omitted footnoted stated:

The regulations provide that “standardized intelligence tests may provide data
to help verify the presence of mental retardation,” but the results of such tests “are
only part of the overall assessment” and “the narrative report that accompanies the
test results should comment on whether the IQ scores are considered valid and
consistent with the developmental history and the degree of functional limitation.”
20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00(D)(6)(a).
Hickel, 539 F. App’x at 984.
5

disabled son. She has a joint checking account with her daughter; she
has a debit card and gets food stamps, and is able to manage them
although her daughter does most of it. She takes the children to the park
and is able to look after their safety and take appropriate precautions.9
The ALJ also noted that claimant was “capable of independent living,” that she
completed the 11th grade, and that she received some special education training but
was not formally enrolled in the special education curriculum. He noted that both
claimant’s treating psychiatrist and the examining psychologist “found good levels
of functional abilities including understanding, remembering and following work
instructions and maintaining concentration, persistence and pace.”10 Claimant
routinely shopped for personal items, household items, and groceries, and she had
“worked at a semiskilled job that required her to plan and execute work, and to
maintain a spectrum of duties.”11 All of those findings represent permissible
considerations in evaluating claimant’s adaptive functioning, and all are supported
by the record. See Garrett v. Astrue, 244 F. App’x 937, 939 (11th Cir. 2007) (holding
that the claimant’s ability to cook simple meals, perform household chores, build
model cars, attend church, watch television, play cards, and walk in the mall were
inconsistent with a finding of significant impairment of adaptive functioning); Outlaw
v. Barnhart, 197 F. App’x 825, 827 (11th Cir. 2006) (stating that the claimant’s “long
9

Tr. 25.

10

Id.

11

Id.
6

work history in semi-skilled positions and daily activities were inconsistent with his
adult IQ scores,” which were below 70); Humphries v. Barnhart, 183 F. App’x 887,
889 (11th Cir. 2006) (holding that substantial evidence supported the ALJ’s finding
that the claimant did not have deficits in adaptive functioning when she worked in a
school cafeteria for 21 years and served as the manager for about 15 years).
In summary, even though the court does not agree with the ALJ’s conclusions
at each step in the process of analyzing whether claimant satisfied the requirements
of Listing 12.05C, the court must conclude that the ALJ’s ultimate decision — that
claimant lacked the deficits in adaptive functioning necessary to demonstrate
disability under Listing 12.05C — was in accordance with applicable law and
supported by substantial evidence.
2.

New Evidence
Claimant next asserts that the Appeals Council erred in considering the

Behavioral Health Evaluation conducted by Dr. Theron M. Colvin, a consultative
psychologist, on May 4, 2013. During Dr. Colvin’s examination, claimant was fully
oriented as to time, place, person, and situation. She was unable to subtract serial 7’s
from 100, or to perform simple arithmetic. She could make comparisons between
paired objects, but she could not interpret simple proverbs. Her general fund of
information was mixed. Her memory tested poorly, and she also reported a great deal

7

of forgetfulness in her everyday life. She did not exhibit looseness of associations or
mental confusion. She reported impaired sleep, anxiety and irritability during the
day, and past suicidal ideation.12
A personality assessment test revealed “severe to very severe emotional distress
characterized by apathy, fearfulness, hopelessness, dysphoria, and anhedonia.”13
Claimant also displayed “marked concentration and attention difficulties, memory
deficits, and poor judgment.”14 Dr. Colvin believed that many of claimant’s reported
symptoms “reflect a psychotic process or a very long-term, characterologic
condition.”15 Claimant was revealed to be “introverted and uncomfortable around
others,” with unpredictable and often inappropriate behavior.16 Dr. Colvin thought
claimant was “likely to have suicidal ideation, and her sense of futility and
hopelessness increases the probability of suicidal behavior.”17 She also was likely to
“use substances.”18 Intelligence testing revealed a Verbal IQ of 68, a Performance IQ
of 68, and a Full-Scale IQ of 65, placing claimant within the range of mild mental
retardation.19
12

Tr. 8-10. Nota bene: Pages 8 and 9 of the administrative record were filed in reverse order.

13

Tr. 10.

14

Id.

15

Id.

16

Id.

17

Tr. 11.

18

Id.

19

Id.
8

Dr. Colvin assessed claimant as experiencing schizoaffective disorder,
depressive type; paranoid personality disorder; schizotypal personality disorder,
borderline personality disorder; and, mild mental retardation. He assigned a GAF
score of 45, indicating serious symptoms.20 Claimant’s prognosis was “very poor.”
She needed medication, but any medication use would have to be closely monitored
due to the potential for suicide. Dr. Colvin expected claimant’s condition to last at
least another 12 months, and he opined that, at the present time, claimant “cannot
obtain and maintain gainful employment.”21 He suggested referral to the local
community mental health center.22
The Appeals Council stated in its April 17, 2014 order that it “looked at” Dr.
Colvin’s report, but it concluded that the report did not change the outcome of
claimant’s case because it related to a time period after the ALJ’s December 7, 2012
decision.23 Claimant was advised that if she wanted the Commissioner to consider
whether she was disabled after December 7, 2012, she would need to file a new
application. The Appeals Council’s decision was consistent with Eleventh Circuit
authority providing that:
When a claimant submits new evidence to the AC [i.e., Appeals
20

Tr. 13.

21

Id.

22

Id.

23

Tr. 2.
9

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. §
404.970(b).
Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008) (alterations and emphasis
supplied).
Dr. Colvin’s report was dated May 4, 2013, and it was an assessment of
claimant’s condition on that date. There is no reason to believe that Dr. Colvin’s
report related back to the time period before the ALJ’s December 7, 2012 decision.
Accordingly, the Appeals Council was justified in refusing to consider the report.
3.

Treating Physician Opinion
Claimant next asserts that the ALJ improperly considered the opinion of Dr.

Pragya Katoch, her treating physician.
The opinion of a treating physician “must be given substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Phillips v. Barnhart, 357 F.3d
1232, 1240-41 (11th Cir. 2004) (internal citations omitted). Good cause exists when
“(1) [the] treating physician’s opinion was not bolstered by the evidence; (2) [the]
evidence supported a contrary finding; or (3) [the] treating physician’s opinion was
10

conclusory or inconsistent with the doctor’s own medical records.” Id. (alterations
supplied). Additionally, the ALJ is not required to accept a conclusory statement
from a medical source, even a treating source, that a claimant is unable to work,
because the decision whether a claimant is disabled is not a medical opinion, but is
a decision “reserved to the Commissioner.” 20 C.F.R. §§ 404.1527(d), 416.927(d).
Social Security regulations also provide that, in considering what weight to
give any medical opinion (regardless of whether it is from a treating or non-treating
physician), the Commissioner should evaluate: the extent of the examining or
treating relationship between the doctor and patient; whether the doctor’s opinion can
be supported by medical signs and laboratory findings; whether the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors.
See 20 C.F.R. §§ 404.1527(c), 416.927(c). See also Wheeler v. Heckler, 784 F.2d
1073, 1075 (11th Cir. 1986) (“The weight afforded a physician’s conclusory
statements depends upon the extent to which they are supported by clinical or
laboratory findings and are consistent with other evidence as to claimant’s
impairments.”).
Dr. Katoch ordered a Functional Capacity Evaluation to be conducted by a
physical therapist on August 18, 2011. Claimant reported constant pain at a level 10.
As a result, during a 24-hour period, she sleeps or lies down for 12 hours, stands or

11

walks for 3 hours, and sits for the remaining 9 hours. During a motor assessment
conducted by the physical therapist, claimant’s gait was slightly altered, and she had
tenderness to palpitation down her entire spine. She also experienced pain in both
shoulders, both upper extremities, both hips, and both legs. Her shoulder, elbow,
wrist, knee, and ankle strength all were 4/5 bilaterally. Her hip strength was 3/5, and
her trunk strength was 2/5. Her upper and lower extremity reflexes were symmetrical.
She could only perform a half-squat, but that was reduced to a quarter-squat with
repetition. She had reduced range of motion in her cervical spine and trunk, and her
straight leg raise tests were positive. Her shoulder, elbow, and wrist range of motion
were within functional limits. Her grip strength was significantly decreased in both
hands. She could lift 20 pounds from the floor to her waist, and 10 pounds from her
waist to overhead. Pain limited her ability to demonstrate the horizontal lift. She
could carry a maximum of 10 pounds with her right hand and 20 pounds with her left
hand, but pain limited her ability to demonstrate a two-handed carry. Her gait was
slow, and she had poor balance. The physical therapist recommended four weeks of
outpatient therapy to increase strength, endurance, flexibility and function.24
The ALJ concluded that the Functional Capacity Evaluation “should be
considered valid and the best estimate of physical capacities” based upon the

24

Tr. 461-68.
12

evaluation results and the physical therapist’s observations during testing.25 He also
concluded that, “[a]s testing directed by Dr. Katoch, the [Functional Capacity
Evaluation] results should be accorded significant weight in assessing the claimant’s
maximum residual functional capacity.”26
Dr. Katoch subsequently completed a form entitled “Medical Assessment Of
Ability To Do Work-Related Activities (Physical)” on July 31, 2012.

That

assessment reflected much more serious limitations than the physical therapist’s
Functional Capacity Evaluation. Dr. Katoch opined that claimant could lift only 5
pounds occasionally due to carpal tunnel syndrome, fibromyalgia, and a herniated
disc in her lower back. She could stand and walk for only 20 minutes at a time, and
for a total of only 1.5 hours during an 8-hour workday. She could sit for only 20
minutes at a time, and for a total of only 2 hours during an 8-hour workday. Her
sitting, standing, and walking limitations were due to her herniated disc and
fibromyalgia. She could only occasionally climb, stoop, kneel, balance, crouch, and
crawl. Her ability to reach, handle, feel, push, and pull would be affected, but Dr.
Katoch did not specify to what degree. However, her ability to see, hear, and speak
would not be affected. Dr. Katoch did not impose any environmental restrictions, but
he did state that claimant would be unable to focus on work due to her constant
25

Tr. 31.

26

Id. (alterations supplied).
13

pain.27
The ALJ afforded Dr. Katoch’s “Medical Assessment Of Ability To Do WorkRelated Activities (Physical)” form less weight than the Functional Capacity
Evaluation because it was not supported by Dr. Katoch’s office notes or any other
evidence in the record. The ALJ noted that “there is no reference by Dr. Katoch in
his medical records supporting this [“Medical Assessment Of Ability To Do WorkRelated Activities (Physical)”] nor is this form part of his medical records.”28 The
ALJ also noted the lack of any evidence to indicate “significant worsening of the
claimant’s physical condition from the initial physical capacity formulation.”29
Finally, Dr. Katoch completed a “Clinical Assessment of Pain” form on July
31, 2013. He indicated that pain was present to such an extent as to be distracting to
adequate performance of daily activities or work, that physical activity would greatly
increase claimant’s pain to such a degree as to cause distraction from or total
abandonment of tasks, that claimant’s pain and/or medication would leave her totally
restricted and unable to function at a productive level of work, and that claimant’s
treatments had had no appreciable effect on her pain.30
The ALJ afforded “little or no weight” to the Clinical Assessment of Pain form,
27

Tr. 432, 439.

28

Id. (alteration supplied).

29

Id.

30

Tr. 433, 451, 459.
14

reasoning:
The opinion regarding medication side effects is inconsistent with the
claimant’s denial of side effects to Dr. Alapati. This form regarding
pain is also inconsistent with the medical evidence, including [Dr.
Katoch’s] own, and is based upon the subjective statements of the
claimant. As noted, the claimant’s statements as to the severity of her
condition are unsupported in the record.31
The court concludes that the ALJ articulated sufficient reasons for rejecting Dr.
Katoch’s opinions and, instead, crediting the Functional Capacity Evaluation
performed by the physical therapist. Physical therapists are not “acceptable medical
sources” under the Social Security regulations, and thus, their opinions are not
entitled to the automatic deference due to those of treating physicians. Therapists are,
however, considered “other medical sources,” and their opinions can be considered,
along with others, in evaluating the severity of an impairment and how it affects a
claimant’s ability to work.

See 20 C.F.R. §§ 404.1513(a), 404.1513(d)(1),

416.913(a), 416.913(d)(1). Thus, while the ALJ was not required to give controlling
weight to the physical therapist’s assessment, he was entitled to rely upon that
assessment in determining the extent of claimant’s functional limitations, because he
concluded that the assessment was the most reliable source of that information, and
it was the most consistent with the rest of the medical evidence. Moreover,
substantial evidence of record supports the ALJ’s decision. Accordingly, the ALJ did
31

Tr. 32 (alteration supplied).
15

not err in considering Dr. Katoch’s opinions.
4.

Pain
Claimant next asserts that the ALJ improperly considered her subjective

complaints of pain.
To demonstrate that pain or another subjective symptom renders her disabled,
a claimant must “produce ‘evidence of an underlying medical condition and (1)
objective medical evidence that confirms the severity of the alleged pain arising from
that condition or (2) that the objectively determined medical condition is of such
severity that it can be reasonably expected to give rise to the alleged pain.’” Edwards
v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986)). If an ALJ discredits subjective testimony of pain, “he
must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011
(11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986);
MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)).
Here, the ALJ found that claimant experienced underlying medical conditions,
including arthritis, obesity, pain syndrome, and fibromyalgia. Even so, there was “no
objective clinical evidence of a condition, which could reasonably be expected to
produce the level of pain, depression, and other symptoms which the claimant alleges
have precluded her from working.”32 The objective evidence did not confirm either
32

Tr. 27.
16

the severity of claimant’s alleged symptoms arising from her medically documented
conditions, or that those conditions could reasonably be expected to give rise to the
symptoms she alleged.33 The ALJ also found that “claimant’s statements concerning
the intensity, persistence and limiting effects of [her] symptoms are not credible to
the extent they are inconsistent with” the ALJ’s finding of a residual functional
capacity to perform a limited range of light work.34 He noted that claimant had made
inconsistent statements about her educational background,35 that claimant had
inconsistently stated that she was able to work in her application for unemployment
benefits,36 and that claimant’s allegations of pain were not supported by the medical
record.
The ALJ properly applied the Eleventh Circuit’s “pain standard,” and his
conclusions were supported by substantial evidence of record. Moreover, it was
proper, as discussed above, for the ALJ to reject the Clinical Assessment of Pain form
generated by Dr. Katoch.
5.

Medical-Vocational Rule 201.18
Claimant next asserts that she should have been found disabled pursuant to

Medical-Vocational Rule 201.18. However, satisfaction of Rule 201.18 results in a
33

Tr. 27, 32.

34

Tr. 28 (alteration supplied).

35

Tr. 27.

36

Tr. 22-23.
17

finding of “not disabled.” See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.18.
Accordingly, this argument is meritless.
6.

Reopening Previous Decision
Claimant next asserts that the Commissioner erred in refusing to “reopen” the

ALJ’s October 4, 2010 decision on the previous application for benefits she filed on
April 15, 2008. Generally, if a claimant is not satisfied with the Commissioner’s
administrative decision, but she does not request review of that decision within the
time allowed, the claimant loses her right to further review, and the administrative
decision becomes final. 20 C.F.R. §§ 404.987(a), 416.1487(a). However, even a
final administrative decision can be reopened under certain circumstances. Id. Within
twelve months of the notice of the initial decision, it can be reopened for any reason.
20 C.F.R. §§ 404.988(a), 416.1488(a). A decision can be reopened for “good cause”
within four years in the case of Title II benefits, and within two years in the case of
Title XVI benefits. 20 C.F.R. §§ 404.988(b), 416.1488(b). “Good cause” exists if:
“(1) New and material evidence is furnished; (2) A clerical error in the computation
or recomputation of benefits was made; or (3) The evidence that was considered in
making the determination or decision clearly shows on its face that an error was
made.” 20 C.F.R. §§ 404.989(a), 416.1489(a).
Because claimant’s request to reopen was made more than twelve months after

18

the October 4, 2010 administrative decision, it could be granted only if she
demonstrated “good cause.” According to claimant, the decision should have been
reopened because her school records, which showed an IQ score of 68 and were
submitted on October 23, 2012, constituted new and material evidence that should
have changed the administrative outcome on the previous application.
The ALJ considered claimant’s request to reopen the previous decision, but he
concluded that there was no good cause, and no other basis, to support claimant’s
request.37 The ALJ did not explain that conclusion, but the court nonetheless agrees
with it.
It is not clear which standard for evaluating “new and material evidence”
should apply in this situation. If it is the standard cited above for evidence submitted
for the first time to the Appeals Council, the court must consider the entire record,
including the new evidence, to determine whether the ALJ’s decision to deny benefits
was erroneous. Here, even though the ALJ did not officially “reopen” claimant’s past
application, he did consider the “new and material” evidence upon which claimant
relies: i.e., her school records and IQ score of 68. As discussed above, even assuming
claimant does have a valid full-scale IQ score of 68, she still should not be considered
disabled under the Listing for intellectual disability, because she did not demonstrate
sufficient adaptive limitations.
37

Tr. 19-20.
19

The other possible standard is the one governing a “Sentence Six” remand,
which is applicable “when the claimant submits evidence for the first time to the
district court that might have changed the outcome of the administrative proceeding.”
Timmons v. Commissioner of Social Security, 522 F. App’x 897, 902 (11th Cir.
2013).38 In such a case,
the claimant must show the evidence is new and material and was not
incorporated into the administrative record for good cause. [Ingram, 496
F.3d at 1267.] New evidence is material, and thus warrants a remand,
if “there is a reasonable possibility that the new evidence would change
the administrative outcome.” Hyde v. Bowen, 823 F.2d 456, 459 (11th
Cir.1987).
Timmons, 522 F. App’x at 902-03. Here, claimant provided no reason — much less
“good cause” — why her school records, which clearly were in existence prior to the
hearing on her April 15, 2008 application, were not provided during the
administrative proceedings. Moreover, for the reasons discussed in the previous
38

A “sentence six” remand refers to the sixth sentence of 42 U.S.C. § 405(g), which states:

The court may, on motion of the Commissioner of Social Security made for good
cause shown before the Commissioner files the Commissioner’s answer, remand the
case to the Commissioner of Social Security for further action by the Commissioner
of Social Security, and it may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a showing that there is
new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding; and the
Commissioner of Social Security shall, after the case is remanded, and after hearing
such additional evidence if so ordered, modify or affirm the Commissioner’s findings
of fact or the Commissioner’s decision, or both, and shall file with the court any such
additional and modified findings of fact and decision, and, in any case in which the
Commissioner has not made a decision fully favorable to the individual, a transcript
of the additional record and testimony upon which the Commissioner’s action in
modifying or affirming was based.
20

paragraph, there is not a reasonable possibility that claimant’s school records would
have changed the administrative outcome.
In summary, regardless of which standard the court employs for evaluating
“new and material evidence,” the ALJ did not err in rejecting claimant’s request to
reopen her prior application for benefits.
7.

Conclusion and Order
Based on the foregoing, the Commissioner’s finding that claimant is not

disabled was supported by substantial evidence and in accordance with applicable
law. Accordingly, the decision of the Commissioner is AFFIRMED. Costs are taxed
against claimant. The Clerk of Court is directed to close this file.
DONE this 10th day of February, 2015.

______________________________
United States District Judge

21