Morton v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/22/2016. (JLC)

FILED
2016 Nov-22 AM 09:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
KATHY MORTON,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 6:15-CV-1589-VEH
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MEMORANDUM OPINION
INTRODUCTION
Plaintiff Kathy Morton (“Ms. Morton”) brings this action under 42 U.S.C.
§ 405(g), Section 205(g) of the Social Security Act. She seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied her application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).1 Ms. Morton timely pursued and

1

In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.
1

exhausted her administrative remedies available before the Commissioner. The case
is thus ripe for review under 42 U.S.C. § 405(g).2 For the following reasons, the court
REVERSES and REMANDS the Commissioner’s decision for further consideration
in accordance with this opinion.
STATEMENT OF THE CASE
Ms. Morton was 48 years old at the time of her hearing before the
Administrative Law Judge (“ALJ”). Compare Tr. 56 with Tr. 162. She has completed
15 years of education. Tr. 80. Her past work experience includes employment as a
cashier, technical support customer service provider, daycare worker, stocker, and
manager of convenience store. Tr. 80. She claims she became disabled due to
worsening nerve damage in her legs and depression. Tr. 216, 249. Her last period of
work ended on April 23, 2012. Tr. 216.
On March 18, 2013, Ms. Morton protectively filed a Title II application for a
period of disability and DIB. Tr. 56. She also protectively filed a Title XVI
application for SSI on that date. Id. On May 2, 2013, the Commissioner initially
denied these claims. Id. Ms. Morton timely filed a written request for a hearing on
May 8, 2013. Id. The ALJ conducted a hearing on the matter on October 1, 2013. Id.

2

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
2

On March 6, 2014, he issued his opinion concluding Ms. Morton was not disabled
and denying her benefits. Tr. 53. She timely petitioned the Social Security Appeals
Council (the “Appeals Council”) to review the decision on March 27, 2014. Tr. 49.
Ms. Morton requested that the Appeals Council review the ALJ’s decision
denying benefits and submitted additional evidence to support her claim on August
28, 2014. Tr. 8-41, 338-369.3 Specifically, Ms. Morton submitted medical records
from Dr. Carter Harsh dated from May 1, 2014 to May 27, 2014. Id. On July 24,
2015, the Appeals Council issued a denial of review on her claim. Tr. 1-4.
Ms. Morton filed a Complaint with this court on September 14, 2015, seeking
review of the Commissioner’s determination. (Doc. 1). The Commissioner answered
on December 21, 2015. (Doc. 6). Ms. Morton filed a supporting brief (doc. 11) on
March 16, 2016, and the Commissioner responded with her own (doc. 12) on April
1, 2016.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner

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Because portions of the evidence submitted to the Appeals Council were illegible, the
undersigned requested that the Commissioner re-file a more legible transcript of that evidence.
The Commissioner filed a supplemental transcript on November 15, 2016. (Doc. 13). Therefore,
throughout this opinion, references to the evidence first presented to the Appeals Council will
cite to page numbers from both the original transcript and the supplemental transcript.
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is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act

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and the Regulations promulgated thereunder.4 The Regulations define “disabled” as
“the inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment listed
by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the national

4

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
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economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

Ms. Morton met the insured status requirements of the Social Security
Act through September 30, 2013.

2.

She had not engaged in substantial gainful activity since April 23, 2012,
the alleged disability onset date.

3.

She had the following severe impairments: chronic venous insufficiency
and early facet arthropathy at the L4-5 and L5-S1 discs (20 C.F.R. §§
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404.1520(c) and 416.920(c)).
4.

She did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.

5.

She had the residual functioning capacity (“RFC”) to perform the full
range of light work as defined in 20 C.F.R. § 404.1567(b) and
416.967(b).

6.

She was able to perform past relevant work as a cashier, technical
support customer service provider, daycare worker, stocker, and
manager of convenience store.

7.

Ms. Morton had not been under a disability, as defined in the Social
Security Act, from April 23, 2012, through the date of this decision.

Tr. 58-63.
DISCUSSION
The court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
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Cir. 1980)).5 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
“With a few exceptions, the claimant is allowed to present new evidence at
each stage of this administrative process,” including before the Appeals Council.
Ingram v. Comm’r of Soc. Sec. Admin, 496 F.3d 1253, 1261 (11th Cir. 2007) (citing
20 C.F.R. 404.900(b)). Even though the Appeals Council is not required to review the
ALJ’s denial of benefits, 20 C.F.R. § 416.1470(b), it “must consider new, material,
and chronologically relevant evidence” that the claimant submits. Id; see also 20
C.F.R. §§ 404.970(b) (“If new and material evidence is submitted . . . 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 new evidence is material and chronologically relevant,
the Appeals Council must determine whether the ALJ’s “action, findings, or
conclusion is contrary to the weight of the evidence currently of record.” Id.
In reviewing the Commissioner’s decision to deny benefits to Ms. Morton, this
court must evaluate any evidence not submitted to the ALJ but instead first
considered by the Appeals Council. Ingram, 496 F.3d at 1257. The new evidence

5

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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need not satisfy the requirements for a remand under sentence six of 42 U.S.C. §
405(g). Id. at 1262. That is, Ms. Morton need not show “good cause” for her failure
to present the evidence to the ALJ. Id. Rather, “when a claimant [has] properly
present[ed] new evidence to the Appeals Council, a reviewing court must consider
whether that new evidence renders the denial of benefits erroneous.” Id.
At issue is whether Dr. Harsh’s treatment notes, first presented to the Appeals
Council, were new, material, and chronologically relevant. As discussed below,
because the undersigned concludes that they were, the refusal to consider the
evidence was legal error, and this case is due to be REVERSED and REMANDED
to the Social Security Administration.
I.

Dr. Harsh’s Treatment Notes Were Chronologically Relevant
Whether the additional evidence meets the new, material, and chronologically

relevant standard is a question of law subject to de novo review. Washington v.
Comm’r of Soc. Sec. Admin, 806 F.3d 1317, 1321 (11th Cir. 2015)(per curiam). When
an Appeals Council “erroneously refuses to consider evidence, it commits legal error
and remand is appropriate.” Id. (finding that the Appeals Council committed legal
error when it refused to consider materials by a licensed psychologist who examined
the plaintiff because the Council did not consider the materials chronologically
relevant). In Washington, the physician based his opinions on (1) information from
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the plaintiff that he had experienced symptoms “throughout his life,” and (2) the
plaintiff’s “health treatment records from the period before the ALJ’s decision.” Id.
at 1322. The court in Washington then concluded that the treating physician’s
opinions were “chronologically relevant even though [the physician] examined him
several months after the ALJ’s decision” because they “relate[d] back to the period
before the ALJ’s decision.” Id.
The opinion need not explicitly state that it relied on and related back to
medical opinions provided during the time frame of the ALJ’s decision. See id.
(“Although [the physician] never explicitly stated that his opinions related back to the
date of the ALJ’s decision, we have recognized that medical opinions based on
treatment may be chronologically relevant.”) (citing Boyd v. Heckler, 704 F.2d 1207,
1211 (11th Cir. 1983) (finding that a treating physician’s opinion was still entitled to
significant weight notwithstanding that he did not treat a claimant until after the
relevant determination date), superceded on other grounds by statute, 42 U.S.C. §
423(d)(5)). The Eleventh Circuit concluded that the physician’s opinions were
“chronologically relevant, even though his evaluation occurred after the date of the
ALJ’s decision.” Id. at 1323.
It is undisputed that the Appeals Council denied review of the additional

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evidence of Dr. Harsh’s June 10, 20146 treatment note. The Appeals Council stated,
We also looked at reports from Dr. Carter Harsh dated May 1-27, 2014.
The Administrative Law Judge decided your case through March 6, 2014.
This new information is about a later time. Therefore, it does not affect
the decision about whether you were disabled beginning on or before
March 6, 2014.
Tr. 2.
However, in his treatment note from June 10, 2014, Dr. Harsh relied upon Ms.
Morton’s Lumbar MRI scan from December 4, 2012, which “shows multilevel disc
bulging with apparent moderate spondylosis.” Tr. 31, 359. After reviewing this study
and conducting a physical exam, Dr. Harsh concluded,
We discussed the multilevel findings, treatment options as well as
potential for surgery, risks and benefits thereof. Questions were
answered. She indicates understanding and requests to proceed with C56 ACDR. She will be scheduled for surgery following blood work with
PT, PTT, INR, and CBC and repeat cervical MRI scan.
Id. Therefore, like in Washington, Dr. Harsh’s treatment notes relate back to and
discusses a treatment record from a period before the ALJ’s decision. Furthermore,

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There appears to be some confusion as to the dates of Dr. Harsh’s medical records that
were submitted as additional evidence to the Appeals Council. Plaintiff’s counsel indicated in his
fax to the Appeals Council that he was submitting “medical records from Dr. Carter Harsh, dated
05/01/2014 to 05/27/2014.” Tr. 8. However, the records submitted to the Appeals Council
include treatment notes dated on June 10, 2014 that discuss Ms. Morton’s office visit on May 1,
2014. Tr. 30-41, 358-69. While Defendant refers to the record by the date of the office visit, May
1, 2014 (doc. 12 at 6), plaintiff refers to the treatment note by its June 10, 2014 record date (doc.
11 at 9). Regardless, it is undisputed that this treatment note was part of the additional evidence
submitted to the Appeals Council on August 28, 2014. Tr. 8-41, 338-69. The court will refer to
this document by its June 10, 2014 office visit record date.
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Dr. Harsh’s assessment was made within several months of the ALJ’s decision. Cf.
Tr. 30, 358 with Tr. 53. Therefore, the Appeals Council erred in failing to consider
Dr. Harsh’s treatment notes as chronologically relevant evidence.
II.

Dr. Harsh’s Treatment Notes Were New and not Cumulative
The evidence is new if it is not cumulative to what the claimant presented

before the ALJ. See Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). The noncumulative requirement is satisfied by the production of new evidence not contained
in the administrative record. Cannon v. Bowen, 858 F.2d 1541; see also Vega v.
Comm’r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001)(finding that new evidence
submitted to the Appeals Council of a herniated disc and subsequent corrective
surgery, occurring after the ALJ’s decision, was new and non-cumulative). So long
as the evidence was not available at the time of the administrative hearing, it meets
the “newness” requirement. See Lipscomb v. Comm’r of Soc. Sec., 199 Fed. App’x
903 (11th Cir. 2006) (finding that when the claimant presented additional evidence
of a doctor’s questionnaire to the Appeals Council, it was “new and non-cumulative
because no similar evidence was presented at the administrative hearing”) (emphasis
added).7

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In the Eleventh Circuit, unpublished decisions are not binding precedent, but they may
be cited as persuasive authority. 11th Cir. R. 36-2. Indeed, under the well-established “prior
panel precedent rule” of this Circuit, the holding of the first panel to address an issue is the law
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It is undisputed by the parties that Dr. Harsh’s assessment, dated June 10, 2014,
was not previously considered by the ALJ as of the date of his decision on March 6,
2014. Dr. Harsh’s notes indicate he considered Ms. Morton’s impairments sufficiently
severe to potentially warrant surgery, and Defendant fails to demonstrate another
point in the record considered by the ALJ where surgery was similarly discussed.
Further, while both parties agree that the December 4, 2012, MRI scan was part
of the record considered by the ALJ, the court is not persuaded by Defendant’s
argument that Dr. Harsh’s later assessment of the scan should be considered
cumulative merely because it referenced evidence already found in the ALJ record.
Tr. 61; (Doc. 11 at 9); (Doc. 12 at 7).
Therefore, Dr. Harsh’s treatment notes, dated after the date of the ALJ’s
decision, were new and not cumulative.
III.

Dr. Harsh’s Treatment Note Was Material
New evidence is material if it is “relevant and probative so that there is a

reasonable possibility that it would change the administrative result.” Hyde v.
Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (citations omitted); see also

of this Circuit, and it binds all subsequent panels unless and until the first panel's holding is
overruled by the court sitting en banc or by the Supreme Court. E.g., Cargill v. Turpin, 120 F.3d
1366, 1386 (11th Cir. 1997) (“The law of this circuit is ‘emphatic’ that only the Supreme Court
or this court sitting en banc can judicially overrule a prior panel decision.” (quoting United States
v. Woodward, 938 F.2d 1255, 1258 (11th Cir. 1991)).
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Washington, 806 F.3d at 321 (finding the treating physician’s opinion was
material because, if accepted, it could reasonably establish that the plaintiff had an
impairment meeting or equaling a listed impairments). Any attempt by the
Commissioner in her brief to discount the additional evidence “carries little
weight” in the court’s calculation of materiality and is therefore “advisory at best.”
Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986).
Ms. Morton asserts that Dr. Harsh’s “new view that these MRI results are
sufficiently severe to possibly require surgery shows the claimant’s condition to be
substantially worse than previously considered.” (Doc. 11 at 9-10). The record
shows that when Ms. Morton met with Dr. Harsh, a neurosurgeon, on May 1,
2014, she complained of “progressive difficulty with low back pain radiating
diffusely into the left worse than right leg”; “numbness and tingling in the same
distribution”; weakness in both legs; urinary incontinence; and “feelings of
numbness and tingling in all her fingers and arm diffusely.” Tr. 30, 358. After a
physical exam, Dr. Harsh made note of the following conditions: “cervical and
lumbar moderate tenderness”; a “wide-based and slow” gait; difficulty with
bilateral heel and toe walk and a need for “significant hand assistance for step up
bilaterally”; and edema in both feet. Tr. 31, 359. Dr. Harsh also noted that
“strength is full to direct testing” and found a “CV regular rate and rhythm without
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murmur or gallop.” Id. After Dr. Harsh discussed the findings, treatment options,
and “potential for surgery, risks and benefits thereof,” his treatment notes indicate
that Ms. Morton would be “scheduled for surgery following blood work . . . and
repeat cervical MRI scan.” Id.
Considering this evidence, this court finds there is at least a reasonable
possibility that Dr. Harsh’s chronologically relevant assessment is material to the
determination of benefits. Therefore, because Dr. Harsh’s treatment notes from
June 10, 2014, were new, material, and chronologically relevant, the Appeals
Council was “required to consider them.” Washington, 806 F.3d at 1323. The
Appeals Council’s failure to consider the evidence from Dr. Harsh was an error of
law that requires reversal and remand to the Commissioner for consideration of
this evidence along with the rest of the evidence in the record.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the Commissioner did not apply proper legal
standards in reaching her final decision. Accordingly, the decision will be
REVERSED and REMANDED by separate order.

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DONE and ORDERED this the 22nd day of November, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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