Anderson v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 5/19/2017. (ASL)

FILED
2017 May-19 PM 04:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CHRISTIE LEIGH-ROBINSON
ANDERSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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Case No. 5:15-cv-836-TMP

MEMORANDUM OPINION
Introduction
The plaintiff, Christie Leigh-Robinson Anderson, appeals from the decision
of the Commissioner of the Social Security Administration (ACommissioner@)
denying her application for a period of disability and disability insurance benefits
(ADIB@). Ms. Anderson timely pursued and exhausted her administrative remedies,
and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C.
'' 405(g), 1383(c)(3).

The parties have consented to the full dispositive

jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. ' 626(c).
Ms. Anderson was 45 years old at the time of the Administrative Law Judge=s
(“ALJ”) decision, and she has an associates degree in nursing. (Tr. at 28). Her past

work experiences include employment as a registered nurse in both hospitals and
clinical offices. (Tr. at 58, 72). Ms. Anderson claims that she became disabled on
September 25, 2008, due to cervical arthritis, shortness of breath, and a hiatal hernia.
(Tr. at 204).

The medical evidence submitted to the ALJ indicates that Ms.

Anderson has cervical and lumbar degenerative disc disease (ADDD@), left shoulder
impingement, fibromyalgia, gastroesophageal reflux disease (AGERD@) related to a
hiatal hernia, depression, and anxiety. (Tr. at 47-64).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
'' 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If
she is, the claimant is not disabled and the evaluation stops. Id. If she is not, the
Commissioner next considers the effect of all of the claimant’s physical and mental
impairments combined. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. To be “severe,” an impairment must
cause a significant limitation on the claimant’s ability to perform basic work tasks.

2

The decision depends upon the medical evidence in the record. See Hart v. Finch,
440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant=s impairments are not severe,
the analysis stops. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise,
the analysis continues to step three, which is a determination of whether the
claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. '' 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant’s impairments fall within this category, she will
be found disabled without further consideration.

Id.

If they do not, a

determination of the claimant’s residual functional capacity (“RFC”) will be made,
and the analysis proceeds to the fourth step. 20 C.F.R. '' 404.1520(e), 416.920(e).
Residual functional capacity is an assessment, based on all relevant evidence, of a
claimant’s remaining ability to do work despite her impairments. 20 C.F.R. '
404.1545(a).
The fourth step requires a determination of whether the claimant’s
impairments prevent her from returning to past relevant work. 20 C.F.R. ''
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do her past relevant
work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step

3

five requires the court to consider the claimant’s RFC, as well as the claimant’s age,
education, and past work experience, in order to determine if she can do other work.
20 C.F.R. '' 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id. The burden of demonstrating that other
jobs exist which the claimant can perform is on the Commissioner; and, once that
burden is met, the claimant must prove her inability to perform those jobs in order to
be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Anderson
has not been under a disability within the meaning of the Social Security Act from
the date of onset through the date of her decision. (Tr. at 60). She first determined
that Ms. Anderson met the insured status requirements of the Social Security Act
through September 30, 2014. (Tr. at 52). She next found that she has not engaged
in substantial gainful activity since September 25, 2008, the alleged onset date. Id.
According to the ALJ, the plaintiff=s degenerative disc disease in the cervical and
lumbar spines, fibromyalgia, left shoulder impingement, and chronic pain are
considered “severe” based on the requirements set forth in the regulations. Id.
She further determined that Ms. Anderson had nonsevere impairments of GERD,
related to a hiatal hernia, and depression.

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However, she found that these

impairments neither meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 53). The ALJ determined that Ms.
Anderson’s statements concerning the intensity, persistence, and limiting effects of
her symptoms were “not entirely credible” (Tr. at 58), and she determined that she
has the following residual functional capacity: to perform light work except that she
can lift only 20 pounds occasionally and 10 pounds frequently; can occasionally
reach overhead with her left upper extremity; can occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, or crawl, but can never climb ladders, ropes, or
scaffolds. (Tr. at 54).
Moving on to the fourth step of the analysis, the ALJ concluded that Ms.
Anderson is unable to perform her past relevant work as a nurse. (Tr. at 58). The
ALJ considered the testimony of a vocational expert (AVE@), and determined that,
considering the claimant=s age, education, work experience, and RFC, there are jobs
that exist in significant numbers in the national economy that the claimant can
perform, including photocopy operator, mail sorter, and product marker. (Tr. at 59).
The ALJ concluded her findings by stating that Plaintiff is not disabled under
Section 1520(g) of the Social Security Act. (Tr. at 60).

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Standard of Review
This court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). Substantial evidence is “more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004), quoting Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997).
The court approaches the factual findings of the Commissioner with deference, but
applies close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996).

The court may not decide facts, weigh evidence, or

substitute its judgment for that of the Commissioner.

Id.

“The substantial

evidence standard permits administrative decision makers to act with considerable
latitude, and ‘the possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding from being supported
by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986)

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(Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm=n, 383 U.S. 607, 620
(1966)). Indeed, even if this court finds that the evidence preponderates against the
Commissioner=s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however,
for “despite this deferential standard [for review of claims] it is imperative that the
Court scrutinize the record in its entirety to determine the reasonableness of the
decision reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987).
Moreover, failure to apply the correct legal standards is grounds for reversal. See
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

Discussion
Ms. Anderson alleges that the ALJ’s decision should be reversed and
remanded because, as she asserts: (1) the ALJ failed to properly evaluate her
fibromyalgia under the Eleventh Circuit Court of Appeals’ pain standard in that (a)
the facts support a finding of disability due to fibromyalgia, (b) the ALJ’s decision
regarding the claimant’s credibility is not supported by substantial evidence, and (c)
the ALJ improperly disregarded the opinions of treating physicians in favor of a
non-treating physician; (2) the ALJ improperly applied the Eleventh Circuit Court of

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Appeals’ pain standard; 1 (3) the ALJ failed to find that the plaintiff’s cervical and
lumbar impairments met or equaled Listing 1.04, Disorders of the Spine; and (4) the
Appeals Council failed to properly consider the new evidence submitted, which
would have required remand. (Doc. 16).
A brief discussion of the plaintiff=s medical history is necessary in order to put
the ALJ=s decision into context. Ms. Anderson was involved in a car accident when
she was a teenager, after which she began to have a Astiff neck@ and headaches. She
went on to become a registered nurse, and worked as a nurse from 1997 until 2008.
She sought treatment for neck and back pain as early as 2004, and was treated by an
orthopedic surgeon, Matthew Berke, with trigger point injections on several
occasions. He noted that she had a history of chronic neck and low back pain, and
that she had been given epidural blocks in the past. Her doctor recommended
cervical traction and physical therapy as well, which she did not pursue at that time.2
1

A diagnosis of fibromyalgia generally is not based upon any “medical or laboratory
signs,” but is most often derived from a doctor’s analysis of the patient’s “described symptoms.”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005), citing Stewart v. Apfel, 245 F.3d 783
(11th Cir. 2000). In this case, the ALJ accepted the diagnosis of fibromyalgia, and rated that
impairment as severe. Accordingly, the claim set forth above as 1(a) is without merit. Although
plaintiff=s counsel set out separate arguments in his brief for the issues listed herein as issues 1(b)
and 2, the court finds that the issues are interrelated and essentially turn on the issue of whether the
ALJ’s finding that the plaintiff’s reports of pain were not entirely credible was based upon
substantial evidence.
2

One doctor=s notation indicated that she did not use the traction device because it
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In 2006, Ms. Anderson had an MRI that revealed some disc degeneration in
the lumbar region of her back. In 2008, more disc bulges were discovered in her
cervical

spine.

She

was

treated

with

epidural

steroid

injections,

anti-inflammatories, muscle relaxants, massages, acupuncture, and, eventually,
narcotic pain medication, including oxycontin. She was referred to a pain clinic in
2008, and was seen regularly—often twice a month. Over the course of the next
several years, Ms. Anderson consistently reported to multiple doctors a pain in her
neck and back that was “constant,” that worsened with activity, that was aggravated
by sitting and standing, and that was made slightly better by medication and heat.
Her reported pain level was never lower than 4 (on a scale of 1 to 10), and once as
high as 10. Most often, she reported that the pain was about a level 7 after the
effects of medication. She consistently reported that her pain was continuous and
aching, and sometimes radiated down her leg or shoulder. While she often reported
that medication made the pain “better” or relieved the pain “somewhat,” she also
frequently reported that “any activity at all” aggravated the pain. She specifically
complained on multiple occasions that riding in a car made her pain much worse.
Dr. Shikhtholth, who treated Ms. Anderson regularly at the pain management clinic,
aggravated another condition, TMJ.
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reported that her daily activities had been Aseverely@ or Amoderately@ limited due to
the pain. At the same time, his notes consistently stated that riding in a car, sitting,
walking, or “any activity” worsened her pain. In the hundreds of pages of medical
records submitted, there is no suggestion that any doctor suspected that Ms.
Anderson was malingering, drug seeking, or exaggerating her pain or her
limitations.
As a requirement for seeking Social Security disability benefits, Ms.
Anderson had to complete a function report. Her average day was described as
eating breakfast in bed, taking her morning medication, watching news programs,
and brushing her teeth and hair. She reported that, when her pain is Asevere,@ she
returns to bed after brushing her hair and teeth. If her pain allows, she will do light
housework or shop for “a few” groceries. She will microwave leftovers for lunch,
and then usually will return to bed. Her husband prepares all other meals and does
all other housework or yardwork. She will feed her small dog and “occasionally”
take him for a “slow, short walk.” She needs her husband=s help with some of her
dressing and bathing needs. When she does report giving some assistance with
housework, it is only “light duty,” for a “short span of time,” punctuated with rest
periods. Although she reported hobbies of reading, researching topics on the

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internet, watching TV, and scrapbooking, she noted that she “can=t do too much at a
time because of looking down [which] increases the strain on my neck.” There are
no reports that Ms. Anderson=s descriptions of her daily activities were inaccurate or
incomplete. A report filled out by her husband is entirely consistent with hers, and
notes that he helps her take care of the house, yard, dog, and shopping.
1. Proper Legal Standard Regarding Credibility
Subjective testimony of pain and other symptoms may establish the presence
of a disabling impairment if it is supported by medical evidence. See Foote v.
Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). To establish disability based upon
pain and other subjective symptoms, A[t]he pain standard requires (1) evidence of an
underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.@ Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)); see also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986).
The ALJ is permitted to discredit the claimant=s subjective testimony of pain
and other symptoms if she articulates explicit and adequate reasons for doing so.

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Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul.
96-7p, 1996 WL 374186 (1996) (A[T]he adjudicator must carefully consider the
individual=s statements about symptoms with the rest of the relevant evidence in the
case record in reaching a conclusion about the credibility of the individual=s
statements.@). Although the Eleventh Circuit does not require explicit findings as to
credibility, A>the implication must be obvious to the reviewing court.=@ Dyer, 395
F.3d at 1210 (quoting Foote, 67 F.3d at 1562).

A[P]articular phrases or

formulations@ do not have to be cited in an ALJ=s credibility determination, but it
cannot be a Abroad rejection@ which is Anot enough to enable [the district court or this
Court] to conclude that [the ALJ] considered her medical condition as a whole.@ Id.
(internal quotations omitted).
In this case, the ALJ specifically stated that plaintiff=s severe fibromyalgia,
cervical degenerative disc disease, lumbar degenerative disc disease, left shoulder
impairment and chronic pain were severe impairments. She further asserted that
she considered the plaintiff=s nonsevere impairments Asingly and in combinations@
with her severe impairments, and found they were not disabling. The ALJ=s
decision that the plaintiff was not disabled rested primarily upon a negative
assessment of the plaintiff=s credibility and a review of the medical records and

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function reports. This court finds that the ALJ=s assessment of plaintiff=s own
reports and the medical evidence was cursory, selective, or taken out of context.
The ALJ, on the one hand, describes Ms. Anderson=s long medical history as
worsening steadily from 2004 until the time of her hearing. She also describes
treatment that became more frequent and more intensive, and acknowledges that the
treatments were of limited efficacy. (Tr. at 55). To support the negative credibility
assessment, the ALJ refers to the following: (1) a “vacation;” (2) reports of
fluctuating pain levels during some doctor=s visits; (3) the plaintiff=s concession that
she “opted not to pursue” every available treatment in 2004-06; (4) descriptions of
daily activities that include feeding and walking the dog, “reading, researching on
the internet, and scrapbooking;” and (5) a detailed and complete function report.
First, the court looks to the ALJ=s determination that the plaintiff took a
“vacation to Florida in 2008.” The record of that excursion simply notes that the
plaintiff reported additional pain after a “trip to Florida,” which is entirely consistent
with her repeated allegations that riding in a car made her pain much worse. The
ALJ assumes, apparently based on the mere fact that Florida is a popular vacation
destination, that the trip was a vacation, and suggests that taking a “vacation” in
2008 makes her allegations of pain in the years before and after that trip less

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credible, even while conceding that a vacation is “not mutually exclusive with
disability.” (Tr. at 55). The ALJ also further failed to note that in the summer of
2008, when the trip was taken, the plaintiff still was working full time as a nurse at a
hospital.
The ALJ also suggests that reports of varying pain levels during doctors= visits
was inconsistent with Ms. Anderson=s repeated reports that her pain was unchanged.
It is clear, however, that a numerical pain assessment is asked of the patient as a
“snapshot” of the pain being experienced at the time of the visit, while assessment of
whether pain is getting better, getting worse, or remaining the same is a longitudinal
view of the situation. It does not, therefore, stretch credibility for a patient to have
good days and bad days, but to still have constant and unrelenting pain. Moreover,
her credibility must be assessed in light of that fact that, while she did report varying
levels of pain, she complained of the same neck and back pain for a dozen years or
more, and all reports indicate that the pain worsened over the years.
The ALJ further faults the plaintiff for failing to pursue physical therapy, wear
a cervical collar, and use a TENS unit as treatment when her doctor first suggested
those options. It is clear from the record that, as time passed and pain worsened, the
plaintiff sought many types of treatment, including the TENS unit. The ALJ never

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asked the plaintiff why she did not pursue physical therapy early in her therapy, and
her more recent records do not indicate that her doctors recommended or prescribed
it after her condition worsened. This court does not agree that a plaintiff=s failure to
pursue every possible course of treatment necessarily establishes that allegations
regarding the underlying condition are not credible. This plaintiff did eventually
use the TENS unit, pursue chiropractic help, and undergo acupuncture. She also
took medications as prescribed, underwent multiple procedures and injections, and
showed up for doctor=s appointments faithfully.
As for her daily activities, the plaintiff reported that she only occasionally
took the couple=s small dog for a “slow, short walk.”

Her testimony about

housework indicates that she did only light chores, only when her pain level
subsided, and that doing too much caused her extreme pain and resulted in the need
for her to take lengthy periods of bed rest. Although her hobbies included reading,
computer searches, and scrapbooking, the plaintiff made clear that she could pursue
these activities—all of which are sedentary—only for short periods.

She reported

that looking down or holding a heavy book caused pain.

The ALJ=s

characterization of Ms. Anderson=s daily activities simply is not an accurate

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reflection of the function reports of the plaintiff or the plaintiff=s husband, or the
testimony elicited at the hearing.
Finally, the ALJ appeared to have taken issue with the fact that the plaintiff
completed her function report, and included with it a four-page supplement that
described her car accident and resulting medical treatment. As the plaintiff=s
counsel pointed out, the plaintiff was required to complete the report, and the ALJ
made no effort to ask the plaintiff whether she had gotten assistance, or how much
time it took her to complete the report. Certainly, the court is hesitant to demean a
claimant who puts forth substantial time and effort to provide the Commissioner
with a full and detailed function report required by the Commissioner.
Having considered the ALJ=s opinion and all of the evidence presented, the
court finds that the ALJ=s decision to discredit Ms. Anderson=s allegations regarding
her pain and her limitations was not based on substantial evidence. Instead, it is a
Abroad rejection@ that ignores the full context of the plaintiff=s testimony and the
medical evidence. Accordingly, the matter is due to be remanded.
2. Weight Given to Non-Treating Physician=s Opinion
The ALJ gave Apartial weight@ to the medical opinion provided by a state
agency physician, Barry Schlossberg. The plaintiff asserts that the ALJ and the

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Appeals Council erroneously “disregarded the testimony of the treating physicians
in favor of a non-treating physician.” (Doc. 16, p. 19). This argument fails to
recognize that the opinion letters and assessments were not submitted until after the
ALJ=s decision was entered.
Plaintiff=s counsel specifically urges that the letter from Dr. Pohl dated
March 10, 2014, and the three assessment forms provided by Drs. Shikhtholth and
Pohl, “provide evidence that Anderson meets the definition of disabled.” Id. As
discussed infra, however, the letter and assessment forms all were completed after
the date of the ALJ=s decision, and could not have been “disregarded,” because they
were not part of the record before the ALJ, and were not chronologically relevant to
the Appeals Council’s decision. While a treating physician=s opinion is generally
entitled to greater weight than a non-treating physician=s pursuant to 20 C.F.R.
' 404.1527(c)(2), there was no opinion evidence provided by the treating
physicians, prior to the decision, aside from their treatment notes. And even though
those notes describe Ms. Anderson’s symptoms and treatments, they do not express
any specific opinions about her ability to lift, sit, stand, or otherwise carry out the
duties of gainful work, as did Dr. Schlossberg. The ALJ did not err in giving the

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non-treating physician’s opinion partial weight where she did not have under
submission any contrary evidence from any treating physicians.
3. Evidence that Plaintiff Did Not Meet or Equal a Listing
The plaintiff asserts that the ALJ did not adequately consider whether the
plaintiff met or equaled Listings 1.02, 1.04, 12.04, 14.02, and 14.09. In her
opinion, the ALJ stated that, considered singly and in combinations, the impairments
did not meet or equal a listing. (Tr. at 53). While the ALJ failed to articulate
which listings were considered, the court does not find this omission, or her
conclusory statement, to be inadequate under the law. The Eleventh Circuit Court
of Appeals has determined that a similarly vague statement “shows that the ALJ
considered the combined effects” of a claimant’s impairments. Hutchinson v.
Astrue, 408 Fed. Appx. 324, 327 (11th Cir. 2011). Accordingly, the court declines to
remand on this ground, but notes that, when the plaintiff=s credibility is reassessed, a
new examination of the applicability of the listings may be required.
4. Appeals Council’s Failure to Apply Correct Standard
The plaintiff=s final argument is that the Appeals Council failed to apply the
correct standard for review. “[W]hen a claimant properly presents new evidence to
the Appeals Council, a reviewing court must consider whether that new evidence

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renders the denial of benefits erroneous.”

Ingram v. Commissioner of Social

Security Administration, 496 F.3d 1253, 1262 (11th Cir. 2007). However, the new
evidence presented to the Appeals Council must be “chronologically relevant” to the
claim, and therefore must relate “to the period on or before the date of the
administrative law judge hearing decision.” 20 C.F.R. ' 404.970(b); see also
Ingram, 496 F.3d at 1262; Hooie v. Social Security Administration, 2012 WL
5426667 *5 (N.D. Ala. 2012). “The Appeals Council must consider new, material,
and chronologically relevant evidence and must review the case if ‘the
administrative law judge’s action, findings, or conclusion is contrary to the weight of
the evidence currently of record.’” Ingram, 496 at 1261, 20 C.F.R. ' 404.900(b).
There is case law, however, recognizing that medical examinations occurring after
the ALJ’s decision may still be chronologically relevant, requiring consideration by
the Appeals Council. See Washington v. Soc. Sec. Admin., Com'r, 806 F.3d 1317,
1322–23 (11th Cir. 2015) (“[W]e have recognized that medical opinions based on
treatment occurring after the date of the ALJ's decision may be chronologically
relevant.”), citing Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983)
(considering a “treating physician's opinion” even though “he did not treat the
claimant until after the relevant determination date”), superseded on other grounds

19

by statute, 42 U.S.C. § 423(d)(5); see also Stone v. Soc. Sec. Admin., 658 F. App'x
551, 553 (11th Cir. 2016).
In this case, it is not entirely clear what the Appeals Council did. In its denial
of review, the Appeals Council first acknowledged that it had received new records
from the claimant’s long-standing treating physicians, but then seemed to reject
consideration of the evidence because it related to a later time. The Appeals
Council wrote:

We looked at the opinions that you submitted from Jay Pohl, M.D.,
dated March 20, 2014 and May 22, 2014 and from a medical
professional whose name is illegible, dated April 4, 2014. We also
looked at the records that you submitted from Huntsville Hospital
Imaging Center, dated June 11, 2014; from Jay Pohl, M.D., dated
December 10, 2013; and from Valley Pain Clinic/Ahmad Shikhtholth,
M.D., dated October 2, 2013 through April 15, 2014. The
Administrative Law Judge decided your case through September 20,
2013. This new information is about a later time. Therefore, it does
not affect the decision about whether you were disabled beginning on
or before September 20, 2013.

(Tr. p. 2, Doc. 10-3) (Italics added). While the Appeals Council never expressly
said that it refused to “consider” the new medical opinions, its assessment that
because these opinions were “about a later time” and “[t]herefore [do] not affect the
decision” of the ALJ, suggests that the Appeals Council made the legal decision to
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refuse consideration of the new medical opinions. That legal decision is subject to
review de novo. See Washington v. Soc. Sec. Admin., Com'r, 806 F.3d 1317, 1321
(11th Cir. 2015).
Because the court has determined that this matter must be remanded to the
ALJ for further consideration of the plaintiff’s claim of disabling pain, it is not
necessary for the court to address whether the Appeals Council erroneously
concluded that these new medical opinions were not chronologically relevant. On
remand, the ALJ can include the new evidence in her reconsideration.

Conclusion
Upon review of the administrative record, and considering all of Ms.
Anderson=s arguments, the undersigned Magistrate Judge finds the Commissioner=s
decision is not supported by substantial evidence; therefore, the decision is
REVERSED and REMANDED to the ALJ for further consideration. The court
will enter a separate Order.
DATED the 19th day of May, 2017.
_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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