Bartes v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 08/22/2013. (MSN)

FILED
2013 Aug-22 PM 02:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
KIMBERLY S. BARTES,
Plaintiff,
vs.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.

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6:12-cv-0992-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Kimberly Bartes, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying her application for
a period of disability and Insurance Benefits (“DIB”). Ms. Bartes 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).
Ms. Bartes was forty-one years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has completed three years of college with past
relevant work as a receptionist, a human resources clerk, and a rail car/semi-truck
loader. (Tr. at 25, 65, 146, 151.) Ms. Bartes claims that she became disabled on
November 6, 2007, due to diabetes, back problems, and arthritis in her right hip. (Tr.

at 145.)
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; 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). If he or she is, the claimant is not disabled
and the evaluation stops. Id. If he or she is not, the Commissioner next considers the
effect of all of the physical and mental impairments combined. 20 C.F.R. §
404.1520(a)(4)(ii). These impairments must be severe and must meet the durational
requirements before a claimant will be found to be disabled. Id. The decision depends
on 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). 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. pt. 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(a)(4)(iii). If the claimant’s impairments fall within this category, he or 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

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and the analysis proceeds to the fourth step. 20 C.F.R. § 404.1520(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant can still do his or 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 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 he or she can do other work. 20 C.F.R.
§ 404.1520(a)(4)(v). If the claimant can do other work, the claimant is not disabled.
Id.
Applying the sequential evaluation process, the ALJ found that Ms. Bartes
meets the nondisability requirements for a period of disability and DIB and was
insured through the date of her decision. (Tr. at 20.) She further determined that Ms.
Bartes has not engaged in substantial gainful activity since the alleged onset of her
disability. (Id.) According to the ALJ, Plaintiff’s “degenerative disc disease of the
lumbar spine with status post fusions” is a severe impairment based on the
requirements set forth in the regulations. (Id.) However, the ALJ found that this
impairment neither meets nor medically equals any of the listed impairments in 20

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C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 21.) The ALJ determined that Ms.
Bartes has the following RFC: “to perform less than the full range of sedentary work
. . . with the ability to lift and/or carry 10 pounds frequently and occasionally, and
sit/stand 1 to 2 minutes every hour.” (Tr. at 22.)
According to the ALJ, Ms. Bartes is capable of performing her past relevant
work as a human resources assistant/clerk and receptionist, as this work does not
require the performance of work-related activities precluded by her RFC. (Tr. at 24.)
The ALJ concluded her findings by stating that Ms. Bartes “has not been under a
disability, as defined in the Social Security Act, from November 6, 2007, through the
date of this decision.” (Id.)
II.

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). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See

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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) (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).
III.

Discussion
Ms. Bartes alleges that the ALJ’s decision should be reversed and in the

alternative remanded for three overarching reasons. First, she believes that the ALJ’s

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RFC assessment indicating that she could perform sedentary work was erroneous for
two reasons: 1) the ALJ improperly relied on an RFC assessment form submitted by
a non-examining state agency single decision-maker; and 2) the physical and
functional assessments submitted by her two treating physicians do not support the
ALJ’s RFC assessment. Second, Plaintiff asserts that the ALJ failed to appropriately
articulate her reasons for disregarding or otherwise minimizing the opinions of two of
Plaintiff’s treating physicians. Finally, Plaintiff contends that considering the newlyobtained evidence of her disability that she presented to the Appeals Council, it was
error for the Appeals Council to deny her an opportunity for substantive review of the
ALJ’s decision and to deny the ALJ the opportunity to reconsider her opinion. (Doc.
11 at 15.)
A.

The ALJ’s Determination that Plaintiff Could Perform Sedentary Work
1.

The ALJ’s Reliance on the Opinion of the Non-Examining State
Agency Single Decision-Maker

Plaintiff contends that the ALJ should not have considered the opinion of Ms.
Depree Williams, a non-examining state agency single decision-maker (“SDM”).
Federal law permits states to test modifications to the disability determination process.
See 20 C.F.R. § 404.906. As part of an experiment to expedite the processing of
applications, SDMs may make initial disability determinations in Alabama without the
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signature of a medical consultant. See Modifications to the Disability Determination
Procedures; Extension of Testing of Some Disability Redesign Features, 71 Fed. Reg.
45890, 2006 WL 2283653 (Aug. 10, 2006); 20 C.F.R. § 404.906. Here, the SDM
considered the record as of October 29, 2009, and completed a “Physical Residual
Functional Capacity Assessment.” (Tr. at 421-28.) It is the Commissioner’s policy
that SDM-completed forms are not opinion evidence and, upon appeal from an initial
denial, are entitled to no weight. See Program Operations Manual System (POMS)
DI 24510.05, 2001 WL 1933365. Despite this policy, the ALJ treated the SDM’s
assessment as an opinion by a state agency medical consultant and considered it in her
assessment of Plaintiff’s RFC. (Tr. at 22, 24.) Referring to the SDM’s assessment,
the ALJ stated she “adopts the physical assessment of the State agency medical
consultant” and further stated that her RFC was supported, in part, by the SDM’s
physical assessment. (Tr. at 22, 24.)
The Commissioner concedes that the ALJ should not have considered the
SDM’s assessment but argues that the ALJ’s error was harmless given the other
substantial evidence of record. See Graham v. Apfel, 129 F.3d 1420 1423 (11th Cir.
1997); Castel v. Astrue, 355 F. App’x 260, 265-66 (11th Cir. 2009) (concluding ALJ did
not err in referring to a report that may have been completed by a SDM where the ALJ

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did not place great weight on the report, the report merely confirmed the objective
medical evidence, and thus any error was harmless); Diorio v. Heckler, 721 F.2d 726,
728 (11th Cir. 1983) (applying the harmless error doctrine to an ALJ’s determination
in a social security case).
As an initial matter, the ALJ’s RFC finding is not entirely consistent with the
SDM’s assessment. While the ALJ did adopt the part of the SDM’s assessment
regarding Plaintiff’s ability to lift and/or carry 10 pounds frequently or occasionally
(tr. at 22, finding no. 5; tr. at 422), the ALJ did not include the postural or
environmental limitations assessed by the SDM. (Tr. at 22, Finding No. 5; Tr. at 423,
425.) Additionally, the ALJ included an assessment that Plaintiff needed to sit/stand
1 to 2 minutes every hour when the SDM did not have a similar assessment. (Compare
Tr. at 421-48 with Tr. at 22, Finding No. 5.) The ALJ was not prohibited from
reaching her conclusion regarding Plaintiff’s ability to perform less than the full range
of sedentary work simply because the SDM also reached that conclusion. See Forrester
v. Comm’r of Soc. Sec., 455 F. App’x 899, 902-03 (11th Cir. 2012) (noting the ALJ was
not prohibited from reaching a conclusion simply because non-treating physicians also
reached it.)
Further, the Court agrees with the Commissioner that the ALJ’s error in

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considering the SDM’s assessment was harmless because there is other substantial
evidence of record indicating that Plaintiff was not disabled. The ALJ noted that the
medical record reflected a gradual improvement in Plaintiff’s pain and limitations.
(Tr. at 23.) For example, the ALJ stated that following a November 7, 2007, lumbar
fusion and pedical screw implant, Plaintiff reported improvement in her left-sided
pain. (Tr. at 20, 233, 237.) However, after falling out of bed about a month after the
surgery, Plaintiff complained of right hip and leg pain. (Tr. at 20, 233, 478.)
Subsequently, in May 2008, Plaintiff underwent removal of the right side pedical
screws. (Tr. at 20, 478-79.) Plaintiff’s spine surgeon, Dr. Said Osman, noted in July
2008 that Plaintiff walked slowly, but without a limp, and had no objective
neurological deficit. (Tr. at 21, 148, 291.) An electrodiagnostic study in August 2008
revealed Plaintiff had a normal nerve conduction velocity (NCV). (Tr. at 21, 282.)
Plaintiff’s electromyography (EMG) study revealed only mild bilateral L5-S1 irritation
with no clear radiculopathy. (Tr. at 21, 282.) In October 2008, Dr. Lloyd Dyas and
Dr. Cyrus Ghavam, with the Orthopaedic Center, examined Plaintiff and reported her
gait was normal, she could walk on her heels and toes without any difficulty, she had
full range of motion in her hips, knees, and ankles. (Tr. at 21, 608-09.) They found no
intrinsic joint pain, deformity, muscle fasciculation, or atrophy. (Tr. at 608).

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Neurologically, they found Plaintiff had some “breakaway weakness” and diminished
L3-L5 sensation on the left and diminished L-4 sensation on the right but Plaintiff’s
deep tendon reflexes were symmetric and normoactive at the patella and Achilles, and
she had a negative straight leg raising test. (Tr. at 22, 608). In February, June,
September, and November 2009, Dr. Dyas noted Plaintiff was doing well with opiate
pain management. (Tr. at 575, 581, 587, 590.) In June 2009, Dr. Ghavam noted
Plaintiff had chronic back pain but was making slow but definite progress and could
increase her activities as tolerated. (Tr. at 22, 618.)
The ALJ also considered the opinion evidence. (Tr. at 23.) See 20 C.F.R. §
404.1545(a)(3); SSR 96-8p, 1996 WL 374184, at *5. On July 5, 2010, Dr. John
Boswell, Plaintiff’s primary care provider, opined Plaintiff could sit, stand, and walk,
each up to 6 hours per day; lift, carry, push or pull up to 10 pounds; and had no
limitations with handling (gross), fingering (fine), or feeling (skin receptors). (Tr. at
23, 604-05.) He opined Plaintiff should never bend, climb or reach, but could kneel,
squat and stoop up to 2 hours. (Tr. at 604.) Two weeks later, on July 19, 2010, Dr.
Dyas opined Plaintiff could lift, carry, push or pull up to 10 pounds; sit, stand, and
walk each up to two hours; and had no limitations with handling (gross), fingering
(fine), or feeling (skin receptors). (Tr. at 23-24, 622-23.) He also opined Plaintiff

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could never bend, climb, reach, squat, stoop, crawl or kneel. (Tr. at 622.) The ALJ
stated Dr. Dyas’ and Dr. Boswell’s opinions were “probative” and “do not negate
[Plaintiff’s] ability to do sedentary work.” (Tr. at 23.)
The ALJ also considered Plaintiff’s testimony concerning activities of daily
living. (Tr. at 23.) See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (the ALJ
may consider a claimant’s daily activities when determining the issue of RFC).
Plaintiff stated that upon awakening, she went downstairs and prepared breakfast for
her three sons, ages 16 months, six and seven years. (Tr. at 23, 46.) Plaintiff’s mother,
who does not live with Plaintiff, comes to Plaintiff’s home during most days to help
care for the youngest child. (Tr. at 23, 46.) Plaintiff then prepares lunch consisting of
soup, sandwich, or pizza. (Tr. at 23, 47, 183.) Plaintiff spends two hours in the
afternoon helping her older children with school work and may run errands, such as
going to town to get milk. (Tr. at 47-49.) In a Function Report Plaintiff submitted as
part of her disability claim, she stated she was able to do laundry, change the bed, and
do light duties that kept her off her feet. (Tr. at 183.) She went outside daily, either to
walk or ride in a car. (Tr. at 184.) She grocery shopped up to an hour every other
week. (Tr. at 184.) Plaintiff regularly went to church and to her medical appointments
(Tr. at 185.)

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The aforementioned evidence supports the ALJ’s RFC finding that Plaintiff
could perform sedentary work with the ability to lift and or carry 10 pounds
“frequently and occasionally,” and “sit/stand 1 to 2 minutes every hour.” (Tr. at 22,
Finding No. 5.) Notably, Plaintiff’s physicians reported she could lift, carry, push or
pull up to 10 pounds, (tr. at 604-05, 622-23), which is consistent with sedentary work.
See 20 C.F.R. § 404.1567(a). Her physicians also indicated Plaintiff would need to
alternate between sitting and standing during the workday. (Tr. at 604-05, 622-23.)
The ALJ accepted Plaintiff’s testimony that she had difficulty sitting or standing for
extended periods. (Tr. at 45.) Accordingly, the ALJ’s RFC finding recognized
Plaintiff needed to change positions from time to time. (Tr. at 22.) Thus, the ALJ
cited substantial evidence, supported by the record, to support her RFC finding.
Considering this evidence, assuming the ALJ’s reliance on the SDM’s
assessment was error, any such error was harmless and does not require remand
because the ALJ’s RFC assessment, which is more restrictive than the SDM’s
assessment, is still supported by substantial evidence of record. See Graham, 129 F.3d
at 1423. Therefore, requiring remand for the ALJ to formulate the RFC without
considering the SDM’s opinion would not result in a different RFC. See N.L.R.B. v.
Wyman-Gordon, Co., 394 U.S. 759, 766 n.6 (1969) (when “remand would be an idle

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and useless formality,” courts are not required to “convert judicial review of agency
action into a ping-pong game”).
2.

RFC Assessments Prepared by Plaintiff’s Treating Physicians

Plaintiff also asserts that the physical and functional assessments of Dr. Dyas,
Plaintiff’s orthopedic surgeon, and Dr. Boswell, Plaintiff’s primary care provider, do
not provide the requisite substantial evidence to support the ALJ’s RFC assessment,
because their indications pertaining to Ms. Bartes’s RFC do not specifically say that
Plaintiff could lift and/or carry up to 10 pounds “frequently” or “occasionally,” as
the ALJ’s RFC assessment states. (Tr. at 148.); See Exhibit 22 F, Doc. 6-12, R. 604,
Exhibit 24F, Doc. 6-12, R. 622-23.
The ALJ found that Plaintiff retains the RFC to perform less than the full range
of sedentary work and that she has the ability to lift and/or carry 10 pounds frequently
and occasionally, and to sit or stand 1 to 2 minutes every hour. (Tr. at 22.) As
explained in section III-A-1, supra, the ALJ’s RFC assessment is supported by
substantial evidence of record, including the opinion testimony of Drs. Dyas and
Boswell. On July 5, 2010, Dr. Boswell opined Plaintiff could sit, stand, and walk, each
up to 6 hours per day; lift, carry, push or pull up to 10 pounds; and had no limitations
with handling (gross), fingering (fine), or feeling (skin receptors). (Tr. at 23, 604-05.)

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He opined Plaintiff should never bend, climb or reach, but could kneel, squat and
stoop up to 2 hours. (Tr. at 604.) Two weeks later, on July 19, 2010, Dr. Dyas opined
Plaintiff could lift, carry, push or pull up to 10 pounds; sit, stand, and walk each up to
two hours; and had no limitations with handling (gross), fingering (fine), or feeling
(skin receptors). (Tr. at23-24, 622-23.) He also opined Plaintiff could never bend,
climb, reach, squat, stoop, crawl or kneel. (Tr. at 622.) The ALJ stated that Dr. Dyas’s
and Dr. Boswell’s opinions were “probative” and “do not negate [Plaintiff’s] ability
to do sedentary work.” (Tr. at 23.)
Contrary to Plaintiff’s argument, the postural and functional limitations
assessed by Dr. Dyas and Dr. Boswell are in fact consistent with sedentary work. Both
of these physicians opined that Plaintiff could lift, carry, push or pull up to 10 pounds.
(Tr. at 604-05, 622-23). This characterization is consistent with sedentary work,
despite the fact that the doctors did not use the words “frequently” or
“occasionally.” See 20 C.F.R. § 404.1567(a) (stating physical requirements for
sedentary work). Her physicians also indicated Plaintiff would need to alternate
between sitting and standing during the workday. (Tr. at 604-05, 622-23.) The ALJ
accepted Plaintiff’s testimony that she had difficulty sitting or standing for extended
periods. (Tr. at 45.) Accordingly, the ALJ’s RFC finding recognized Plaintiff needed

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to change positions from time to time. (Tr. at 22.) In sum, the ALJ’s RFC assessment
is in fact supported by the assessments of Drs. Dyas and Boswell, as well as other
substantial evidence of record, as explained supra.
B.

Weight Given to Treating Physicians’ Opinions

Plaintiff next argues that the ALJ failed to state and explain the weight she gave
to the opinions of her treating physicians, Drs. Dyas and Boswell. (Doc. 11 at 13.)
As already noted, Dr. Boswell opined in his July 5, 2010, functional capacity
assessment that Plaintiff could sit, stand, and walk, each up to 6 hours per day; lift,
carry, push or pull up to 10 pounds; and had no limitations with handling (gross),
fingering (fine), or feeling (skin receptors). (Tr. at 604-05.) Dr. Boswell continued that
Plaintiff should never bend, climb, or reach, but could kneel, squat and stoop up to 2
hours. (Id.) Dr. Boswell stated Plaintiff “is not a candidate for full time or regular part
time employment due to physical limitations and chronic pain.” (Tr. at 605.)
In February 2010, as part of Plaintiff’s CIGNA long term disability claim, Dr.
Dyas opined that Plaintiff could not even do sedentary work. (Tr. at 600.) He stated
Plaintiff was homebound except to attend doctors’ visits. (Tr. at 600.) He opined
that Plaintiff could sit, stand, and walk each for less than 2.5 hours in an 8-hour
workday. (Tr. at 602.) He also opined that Plaintiff could lift up to 10 pounds and

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was not able to engage in postural activities such as balancing, stooping, and crawling.
(Tr. at 602.) As noted above, on July 19, 2010, Dr. Dyas completed a functional
capacity form in which he opined that Plaintiff could lift, carry, push or pull up to 10
pounds; sit, stand and walk each up to two hours; and had no limitations with handling
(gross), fingering (fine), or feeling (skin receptors). (Tr. at 622-23.) He further opined
that Plaintiff could never bend, climb, reach, squat, stoop, crawl or kneel. (Tr. at 622.)
Though not controlling on whether Plaintiff is disabled, a treating physician’s
testimony is entitled to “substantial or considerable weight unless ‘good cause’ is
shown to the contrary.” Crawford v. Commission of Social Security, 363 F. 3d 1155, 1159
(11th Cir. 2004) (quoting Lewis v. Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997))
(internal quotations omitted). The weight to be afforded a medical opinion regarding
the nature and severity of a claimant’s impairments depends, among other things,
upon the examining and treating relationship the medical source had with the
claimant, the evidence the medical source presents to support the opinion, how
consistent the opinion is with the record as a whole, and the specialty of the medical
source. See 20 C.F.R. §§ 404.1527(d). Furthermore, “good cause” exists for an ALJ
to not give a treating physician’s opinion substantial weight when the: “(1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a

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contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Phillips v. Barnhart, 357 F. 3d 1232, 1241
(11th Cir. 2004) (citing Lewis, 125 F. 3d at 1440); see also Edwards v. Sullivan, 937 F.
2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed where the opinion
was contradicted by other notations in the physician’s own record).
The Court also notes that opinions such as whether a claimant is disabled, the
claimant’s residual functional capacity, and the application of vocational factors “are
not medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a case;
i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§
404.1527(e), 416.927(d). The Court is interested in the physicians’ evaluations of the
plaintiff’s “condition and the medical consequences thereof, not their opinions of the
legal consequences of his [or her] condition.” Lewis, 125 F.3d at 1440. Such
statements by a physician are relevant to the ALJ’s findings, but they are not
determinative, as it is the ALJ who bears the responsibility for assessing a claimant’s
RFC. See, e.g., 20 C.F.R. § 404.1546(c).
Here, the ALJ specifically considered the functional assessments of Dr. Boswell
and Dr. Dyas. (Tr. at 23.) The ALJ wrote that “[w]hile certainly probative,”

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these assessments do not negate the ability for sedentary work as
described [in the ALJ’s RFC] such that Dr. Boswell concluded the
claimant could sit 2-6 hours frequently, stand 2-6 hours frequently, walk
2 to 6 hours frequently, infrequently squat/stoop and kneel,
lift/carry/push/pull up to 10 pounds, and unlimited handle, finger and
feel. (Exhibit 22F.) Similarly, in his most recent assessment on July 19,
2010, Dr. Dyas opined the claimant could sit 0-2 hours infrequently,
stand 0-2 hours infrequently, walk 0-2 hours infrequently,
lift/carry/push/pull up to 10 pounds, and handle, finger, and feel.
(Exhibit 24F.)
(Tr. at 23-24.) Because the ALJ found their assessments “probative,” she clearly
afforded them some weight. Her failure to specifically discuss her rejection of Dr.
Dyas’s and most of Dr. Boswell’s postural limitations was at most harmless error. Dr.
Dyas’s and Dr. Boswell’s opinions prohibiting Plaintiff from climbing ladders or
stairs, balancing, kneeling, crouching, or crawling does not detract from the ALJ’s
RFC finding as those activities are not usually required in sedentary work. (Tr. at 60304, 622.) See SSR 96-9p, 1996 WL 374185, at *7 (“Postural limitations or restrictions
related to such activities as climbing ladders, ropes or scaffolds, balancing, kneeling,
crouching, or crawling . . . are not usually required in sedentary work.”) However, an
ability to stoop occasionally, i.e., from very little up to one-third of the time, is
required for most unskilled sedentary occupations. See id. While Dr. Dyas opined
that Plaintiff could not stoop, (tr. at 622), Dr. Boswell opined that Plaintiff could stoop
up to two hours per day, which again, is consistent with sedentary work. (Tr. at 604.)
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The ALJ clearly gave some weight to Dr. Boswell’s assessment of Plaintiff’s ability to
stoop as she mentioned that specific limitation in her discussion of the opinion
evidence that supported her RFC finding. (Tr. at 23, 604.) In any event, the ALJ
found, with the aid of a vocational expert, that Plaintiff could perform her past
relevant work as a human resources assistant/clerk and receptionist as she performed
it and as generally performed in the national economy. (Tr. at 24.) Importantly,
Plaintiff indicated that those jobs did not require her to climb, stoop, kneel, crouch,
crawl or reach. (Tr. at 170-71.)
Finally, the ALJ did not err in explicitly rejecting Dr. Dyas’s and Dr. Boswell’s
opinions that Plaintiff could not work, because opinions such as those are reserved to
the Commissioner and are not determinative. 20 C.F.R. §§ 404.1527(e), 416.927(d).
Further, the ALJ noted that these conclusions that Plaintiff could not work are
inconsistent with the rest of the doctors’ opinions indicating that Plaintiff could in fact
perform the physical requirements of sedentary work. See Edwards, 937 F. 2d at
583-84 (holding that “good cause” existed where the opinion was contradicted by
other notations in the physician’s own record).
While the ALJ could have better articulated her reasons for giving Dr. Dyas’s
and Dr. Boswell’s opinions the weight that she assigned to them, because the activities

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that they prohibited are not usually required in sedentary work and the ability to stoop
occasionally assessed by Dr. Boswell is usually required for sedentary work, it was not
an error to reject those limitations without a lengthy explanation. See 20 C.F.R. §
404.1527(d).
D.

Additional Evidence Submitted to the Appeals Council

After the ALJ’s decision, Plaintiff submitted additional evidence to the Appeals
Council (“AC”) consisting of a letter dated October 28, 2010, containing a sworn
statement of Dr. Dyas, and medical records of Dr. Ahmad Shikhtholth at Valley Pain
Clinic from August 31, 2010, to October 21, 2010. (See Exhibit 16E, Doc. 6-7, R.
219-222.) Plaintiff challenges the decision of the AC to deny review of her case
despite her submission of this additional evidence and claims that the evidence, when
added to the record as a whole, renders the Commissioner’s decision erroneous, as
they demonstrate that substantial evidence did not support the ALJ’s decision that she
was not disabled. (Doc. 13 at 16.)
A claimant is generally allowed to present new evidence at each stage of the
administrative process, including to the AC. See 20 C.F.R. § 404.900(b). The AC has
discretion not to review the ALJ’s denial of benefits. See 20 C.F.R. § 404.970(b).
However, the AC “must consider new material, and chronologically relevant evidence

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and must review the case if the ALJ’s action, findings, or conclusion is contrary to the
weight of evidence currently of record.” Ingram v. Comm’r of Soc. Sec. Admin., 496
F.39 1253, 1261 (11th Cir. 2007). See also 20 C.F.R. § 404.970 (“The Appeals Council
shall evaluate the entire record including the new and material evidence submitted if
it relates to the period on or before the date of the administrative law judge hearing
decision.”). If the AC refuses to consider new evidence submitted by a claimant and
denies review, its decision is subject to judicial review because it is an error of law.
Barclay v. Comm’r of Soc. Sec. Admin., 274 F. App’x 738,743 (11th Cir. 2008) (citing
Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,1066 (11th Cir. 1994)). When
reviewing the AC’s denial of review, the Court must “look at the pertinent evidence
to determine if the evidence is new and material, the kind of evidence the AC must
consider in making its decision whether to review an ALJ’s decision.” Falhe v. Apfel,
150 F.3d 1320,1324 (11th Cir. 1998).
In this case, the AC gave at least some consideration to Plaintiff’s new evidence.
The AC stated that it considered the reasons Plaintiff disagreed with the ALJ’s
decisions as well as the new evidence. (Tr. at 1-2, 4-5, 219-22.) Specifically, the AC
stated that Plaintiff’s new evidence did not warrant review because it does not address
the time period considered by the ALJ. (Id.) As noted above, the AC only has an

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obligation to review the evidence that is relevant to the time period considered by the
ALJ, which in this case was Plaintiff’s alleged onset date of November 6, 2007 through
September 3, 2010, the date of the ALJ’s decision. (Tr. at 25, 128.) See Wilson v.
Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999) (the relevant question before the court is
whether Plaintiff was “entitled to benefits during a specific period of time, which was
necessarily prior to the date of the ALJ’s decision”); Ingram, 496 F.3d at 1261; 20
C.F.R. § 404.970. Therefore, the AC did not err by failing to consider the new
evidence presented by Plaintiff.
Plaintiff, however, claims that the new evidence indicates further and
substantial evidence confirming a disability, which began in November of 2007. (Doc.
11 at 15.) The Commissioner, on the other hand, raises the argument that the
evidence is not material as it is cumulative of evidence considered by the ALJ. (Doc.
13 at 18.) With regard to the sworn statement of Dr. Dyas, he merely discusses again
the functional capacity assessments he prepared for Cigna as part of Plaintiff’s DIB
claim as well as the treatments notes already in the record. (Tr. at 600-01, 622-23,
716.) While Dr. Dyas now claims that Plaintiff cannot lift more than 5 pounds
repetitively, (tr. at 717), it is unclear why he changed his opinion or when Plaintiff
became unable to lift up to 10 pounds. (Tr. at 622.) In the sworn statement, Dr. Dyas

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also said, “I can’t think of many patients that—I can’t think of any patients that are
less able to provide a forty-hour week than Ms. Bartes.” (Tr. at 716.) However, Dr.
Dyas’s statement that Plaintiff was not employable is not entitled to controlling weight
as it encroaches on an issue reserved for the Commissioner. See 20 C.F.R. §
404.1527(d)(1)-(3). Thus, the Court finds that the evidence submitted by Dr. Dyas
is not material as it is merely cumulative of evidence considered by the ALJ.
With regard to the records provided by Dr. Shikhtholth, even if they were
chronologically relevant, which they are not, they do not detract from the substantial
evidence supporting the ALJ’s decision. Upon a referral from Dr. Boswell, on August
31, 2010, Dr. Shikhtholth examined Plaintiff, (tr. at 738-39), and noted she had a slow,
antalgic gait but had a normal range of motion with pain on extension. (Tr. at 738.)
Although Plaintiff had a positive left straight leg raising test, she could toe and heel
walk normally. (Tr. at 738.) Radiology reports on September 8, 2010, revealed
Plaintiff had no acute abnormality at L5-S1 and a normal appearing left hip. (Tr. at
741-42.) On September 14, 2010, Dr. Shikhtholth recommended Plaintiff undertake
a home-based exercise program along with posture and mechanics training. (Tr. at
732.) This evidence does not undermine the ALJ’s RFC assessment.
In sum, the aforementioned evidence is not “relevant and probative so that

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there is a reasonable probability that it would change the administrative result.”
Milano v. Bowen, 809 F. 2d 763, 766 (11th Cir. 1987). Even considering the additional
evidence submitted to the Appeals Council along with the record as a whole,
substantial evidence supports the Commissioner’s conclusion that Plaintiff was not
disabled on or before September 3, 2010, the date of the ALJ’s decision.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Bartes’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 22nd day of August 2013.

L. Scott Coogler
United States District Judge
[160704]

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