AMS v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 8/8/2016. (AVC)

FILED
2016 Aug-08 PM 02:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
A.M.S., a minor, by and through
her legal guardian,
MURLENE DUNN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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7:15-cv-00402-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, A.M.S., a minor, by and through her legal guardian, Murlene

Dunn, appeals from the decision of the Commissioner of Social Security
Administration (“SSA”) regarding the disability claim of her now deceased father,
Larry Dunn (“Dunn”). Dunn timely pursued and exhausted his administrative
remedies and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3). 1
Dunn applied for Disability Insurance Benefits (“DIB”) and Supplement Security Income
(“SSI”) benefits on May 27, 2011, with a protective filing date of May 24, 2011. He alleged
disability beginning July 31, 2010. The Administrative Law Judge denied Dunn’s claim on April
26, 2013. Review by the Appeals Council was requested and while the claim was pending before
1

1

Dunn was forty-eight years old at the time of the Administrative Law Judge’s
(“ALJ’s“) decision, and he had an eleventh grade education (tr. at 26), as well as
training and work experience as a sheet metal installer and construction worker.
(Tr. at 65-66.) Dunn claimed that he became disabled on July 31, 2010 (tr. at 123),
because of lower back problems, carpal tunnel syndrome, chronic pain, back
spasms, and pain with walking. (Tr. at 198.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”). See id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
the Appeals Council, Dunn died. A.M.S., via her legal guardian, Murlene Dunn, was substituted
as the party to this claim on November 18, 2014. After accepting new evidence and adding it to
the administrative record, the Appeals Council denied review.
2

404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

The

decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine

3

whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Dunn met
the insured status requirements of the Social Security Act through December 31,
2014. (Tr. at 25.) He further determined that Dunn had not engaged in SGA since
the alleged onset of his disability, July 31, 2010. (Id.) According to the ALJ, Dunn’s
carpal tunnel syndrome, status post carpal tunnel release and low back pain, status
post laminectomy and discectomy were considered “severe” based on the
requirements set forth in the regulations. (Id.) However, the ALJ found that these
impairments neither met nor medically equaled any of the listed impairments in 20

4

C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 26.) The ALJ did not find Dunn’s
allegations to be totally credible, and the ALJ determined that Dunn had the RFC
to perform sedentary work within some limitations: he should have the ability to
perform work sitting or standing at his discretion; he can occasionally climb,
balance, stoop, crouch, crawl, and use foot controls; he should do no more than
frequent handling and fingering; he should avoid concentrated exposure to
vibrations; and he is precluded from work around unprotected heights. (Id.)
According to the ALJ, Dunn was unable to perform any of his past relevant
work, he was a “younger individual age 45-49,” had a “limited education,” and
was able to communicate in English, as those terms are defined by the regulations.
(Tr. at 30.) Because Dunn could not perform the full range of sedentary work, the
ALJ enlisted Mr. Hare, a vocational expert (“VE”), who used Medical-Vocation
Rule 201.19 as a guideline for finding that there were a number of jobs in the
national economy that Dunn was capable of performing, such as a toy stuffer, a
wire wrapper, and an eyeglass frames polisher. (Tr. at 31, 68.) The ALJ concluded
his findings by stating that Dunn “has not been under a disability, as defined in the
Social Security Act, from July 31, 2010, through the date of this decision.” (Tr. at
31.)

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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 Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“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

6

proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] 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) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). 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
Plaintiff alleges that the ALJ’s decision should be reversed and remanded for

three reasons: A) the ALJ improperly discounted the opinion of Dunn’s treating
physician; B) the ALJ did not properly credit Dunn’s testimony; and C) the
Appeals Council erred when it concluded that the decision of the ALJ was
supported by the administrative record as a whole.
A.

Treating Physician’s Diagnoses

Plaintiff contends that the ALJ improperly discounted his treating
physician’s opinion. Dr. Bobby Hill had been treating Dunn since August 31, 1998.
(Tr. at 278-296). On October 22, 2012, Dr. Hill completed a questionnaire stating

7

that Dunn had “chronic neck pain syndrome due to C-spine disease,” that his
prognosis was “poor,” and that Dunn was not a malingerer. (Tr. at 362-63).
Likewise, Dr. Hill opined that “during a typical workday” Dunn would
“frequently” experience pain “severe enough to preclude the level of attention and
concentration needed to perform even simple work tasks.” (Tr. at 363). Also, Dr.
Hill stated that Dunn could only sit for 15 minutes at one time, that he could only
stand for 10-15 minutes at one time before needing to sit down, that he could only
stand or walk less than 2 hours in a full 8-hour working day, that he could only
occasionally “look down (sustained flexion of neck),” “turn head right or left,” or
“look up,” and could only “rarely” hold his head in a “static position.” (Tr. at
364-65). Dr. Hill also opined that Dunn could only rarely twist, crouch, or climb
ladders, could occasionally stoop (bend) and climb stairs, but that Dunn did not
have any significant limitations in reaching, handling, or fingering. (Tr. at 364-66).
Finally, Dr. Hill stated that Dunn’s impairments would likely “produce ‘good
days’ and ‘bad days,’” that Dunn could be expected to miss work “about three
days per month” “as a result of [his] impairments or treatment,” and ultimately
that “the patient is to limit all activities of daily living that exacerbates his
condition.” (Tr. at 366-67 (emphasis added)).

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A treating physician’s testimony is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Crawford, 363 F.3d at 1159
(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), 416.927(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 contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.” Phillips, 357 F.3d at 1241
(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 must also be aware of the fact 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

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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
doctors’ evaluations of the claimant’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 residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).
The ALJ gave Dr. Hill’s opinion “little weight“ because 1) it did not define
the terms “frequently or occasionally,” 2) it contained two inconsistencies, and 3)
the last treatment note in the record before the ALJ was from over a year and a half
prior to when Dr. Hill filled out the questionnaire. (Tr. at 29.) With specific regard
to the inconsistencies, the ALJ found Dr. Hill’s opinion that Dunn’s condition
would “frequently” impair his ability to attend work and concentrate enough to
“perform even simple work tasks” was inconsistent with Dr. Hill’s opinion that
Dunn was yet “capable of low stress jobs.” (Tr. at 29; see also 363.) Likewise, the
ALJ found Dr. Hill’s opinion to be inconsistent when he “indicated the claimant
needed a job that permitted shifting positions at will, but then stated he would need

10

15-20 minute breaks every 15-20 minutes.” (Tr. at 29.) Additionally, according to
the ALJ, “The gap in treatment undermines Dr. Hill’s opinion.” (Doc. 10 at 7.)
The plaintiff argues that the ALJ erred in giving little weight to Dr. Hill’s
opinion for three reasons, but none provide support for a contention that the ALJ
lacked good cause to discredit the doctor’s opinion.
First, Plaintiff points out that the doctor’s questionnaire does in fact define
the terms “frequently” and “occasionally.” (Tr. at 363; Doc. 9 at 10.) Indeed, the
record clearly shows that the key terms “frequently” and “occasionally” are
defined as “34% to 66% of an 8-hour working day” and “6% to 33% of an 8-hour
working day,” respectively. (Tr. at 363). Thus, this basis for the ALJ’s decision is
unsound. However, this Court finds that the error is harmless given the weight of
the record and findings below.
Second, Plaintiff argues that there is only the appearance of inconsistency in
the questionnaire because “the ALJ took one comment out of context and
misstated another.” (Doc. 9 at 7-11.) However, Dr. Hill opined that Plaintiff’s
symptoms would “frequently” impair his ability to attend and concentrate, but that
he was capable of low stress work. (Tr. at 363). “Frequent” means 34% to 66% of
the workday. (Tr. at 363). Therefore, Dr. Hill’s opinion that Plaintiff’s symptoms
would preclude him from being able to concentrate 34% to 66% of the day would

11

prevent full-time work. (Tr. at 363). Inexplicably, however, he then opined that
Plaintiff was incapable of working. (Tr. at 363.) Dr. Hill also noted that Plaintiff had
exhibited decreased grip strength bilaterally when asked about symptoms, but then
opined that Plaintiff had no significant manipulative limitations. (Tr. at 362, 366).
These statements are all inherently inconsistent and undermine the supportability
of his opinion. Further, Dr. Hill’s opinion is inconsistent with his own treatment
records. Dr. Hill often noted stiffness and tenderness in the lower back with
decreased range of motion and positive straight leg raise testing, but his exams were
otherwise unremarkable. (Tr. at 278-79). Dr. Hill did not note gait problems,
neurological or sensory deficits, or motor strength deficits. In fact, he said Plaintiff
was neurologically intact in April 2011. (Tr. at 278).
Third, the ALJ discounted Dr. Hill’s opinion because “The statement is
dated October 25, 2012; however, the last doctor’s note was from April 16, 2011.
There is no indication that the claimant has continued for ongoing treatment with
Dr. Hill.” (Tr. at 29; See Tr. at 278). The length and frequency of the treatment
relationship is certainly relevant in evaluating a treating source’s opinion. See 20
C.F.R. § 404.1527(c)(2). The Plaintiff argues that, while correct at the time, the
ALJ’s judgment on this matter is now inconsistent with the weight of the evidence
since “additional records were submitted to the Appeals Council which

12

demonstrate that Dr. Hill continued treating Dunn after April 16, 2011.” (Doc. 9 at
10.) However, those records were not before the ALJ, and Plaintiff has provided no
explanation as to why the records dated before the ALJ decision were not entered
into the record before the ALJ issued his decision. Further, as explained in further
detail below, those records do not change the administrative result.
For these reasons, this Court finds that the ALJ’s judgment is supported by
substantial evidence in the record and constitutes good cause for discounting the
treating physician’s opinion.
B.

Plaintiff’s Allegations of Pain

Plaintiff asserts that the ALJ’s evaluation of his subjective complaints of pain
was improper. This Court disagrees. 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, “[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, 395 F.3d at 1210 (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)).

13

The ALJ is permitted to discredit the claimant’s subjective testimony of pain and
other symptoms if he articulates explicit and adequate reasons for doing so. Wilson
v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 96-7p, 1996
WL 374186 (1996) (“[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, “‘the implication must be obvious to the reviewing court.’” Dyer,
395 F.3d at 1210 (quoting Foote, 67 F.3d at 1562). “[P]articular phrases or
formulations” do not have to be cited in an ALJ’s credibility determination, but it
cannot be a “broad rejection which is ‘not 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). “A clearly articulated credibility finding
with substantial supporting evidence in the record will not be disturbed by a
reviewing court.” Jarrell v. Comm’r of Soc. Sec., 433 F. App’x 812, 814 (11th Cir.
2011) (internal citations omitted). Finally, the ALJ may consider the following
factors when evaluating a claimant’s subjective complaints of pain and impairment:
1) the claimant’s daily activities; 2) the location, duration, frequency, and intensity
of the pain; 3) any precipitating and aggravating factors; 4) medications taken to

14

alleviate pain, including side effects and effectiveness; 5) treatment received to
relieve pain; and 6) any other measure the claimant uses to relieve pain. See 20
C.F.R. § 404.1529(c)(3).
Here, the ALJ complied with the Eleventh Circuit’s “pain standard” and
found that Dunn’s complaints of pain and impairment were not credible or
supported by the record, writing: “There is sufficient objective medical evidence
from which to determine that the claimant has some degree [of] hand pain and
degenerative disc disease with back pain, however, the limiting effects as alleged by
the claimant are not supported by the record.” (Tr. at 28).
Substantial evidence supports the ALJ’s credibility finding. Specifically, the
ALJ noted that while Dunn did “undergo surgery for carpal tunnel release . . . the
chart notes indicated good results such that the claimant was released to return to
work within a month of the surgery . . . . There are no further mentions of carpal
tunnel syndrome throughout the remainder of his follow-up presentations in
2010.” (Id). An ALJ may properly consider a claimant’s course of “conservative”
treatment as evidence that contradicts a claimant’s subjective complaints of
disabling symptoms. See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996). In
June 2011, Plaintiff exhibited mild Tinel’s sign on the right hand and numbness in
the middle finger on tapping over the right carpal tunnel. (Tr. at 28, 330).

15

However, his grip strength was normal and he denied that he had weakness, that he
dropped things, or that he had trouble with fine manipulation. (Tr. at 28, 328, 330).
The ALJ found that, based on the evidence from before the alleged onset date, the
objective evidence supports some limitation from carpal tunnel syndrome and
therefore limited Plaintiff to frequent, as opposed to constant, fingering and
handling. (Tr. at 28-29).
The only aspect of the ALJ’s credibility determination that the plaintiff takes
issue with is the ALJ’s reasoning that Dunn’s daily activities undermined his
allegations of disabling pain symptoms. (Tr. at 25-26). The ALJ noted that Dunn
was able to use his hands to pay bills and handle money. (Tr. at 28, 229). He had no
trouble with personal care. (Tr. at 227). He was also able to take care of household
duties because he was divorced and taking care of his daughter alone. (Tr. at 6263). He took his daughter to the bus stop daily, picked her up, shopped for
groceries, cooked, cleaned, went to church, and went to the doctor. (Tr. at 56, 6263, 229, 328). Dunn told the consultative physician that he could perform fine
motor skills like buttoning shirts and that he had no difficulty performing
household chores. (Tr. at 328). Contrary to the plaintiff’s assertion, while
participation in daily activities of short duration does not necessarily disqualify a
claimant from disability, that does not mean it is improper for the ALJ to consider

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the daily activities at all. See Makjut v. Comm’r of Soc. Sec., 394 F. App’x 660, 663
(11th Cir. 2010); Robinson v. Astrue, 365 F. App’x 993, 998 (11th Cir. 2010)(citing
Lewis, 125 F.3d at 1441); see also 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)
(specifically listing daily activities as one of the factors to consider in evaluating a
claimant’s credibility).
Plaintiff argues that Dunn had to take significant breaks while performing
these tasks and she alleges that “there is nothing in the ALJ’s recitation of Dunn’s
daily activities that is inconsistent with his testimony, or with disability in general.”
(Doc. 9 at 14.) However, this Court finds that the ALJ was within his discretion
when he gave weight to Dunn’s daily activity level and there is more than
substantial evidence in the record to support the ALJ’s credibility determination.
The ALJ specifically addressed Dunn’s allegations of pain in his opinion, and
provided explicit and reasonable reasons for rejecting Dunn’s testimony. (Tr. at
28-29.)
C.

The Appeals Council’s Review

After the ALJ issued his unfavorable decision, Plaintiff submitted additional
treatment records from Dr. Hill (dated from July 26, 2011 through June 18, 2013),
and a Certificate of Death showing that Dunn died of acute respiratory failure on
September 7, 2013. (Tr. at 368-72). The Appeals Council denied review after

17

considering whether the ALJ’s decision was contrary to the weight of all the
evidence and ultimately found that the new evidence did not provide a basis for
changing the ALJ’s decision. (Tr. at 1-2, 4-5). This Court finds that the additional
evidence submitted to the Appeals Council does not render the ALJ’s denial of
benefits erroneous.
According to the Commissioner’s regulations, when new material evidence
is submitted to the Appeals Council:
The Appeals Council shall consider the additional
evidence only where it relates to the period on or before
the date of the administrative law judge hearing decision.
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. It will then
review the case if it finds that the administrative law
judge’s action, findings, or conclusion is contrary to the
weight of the evidence currently of record.
20 CFR § 404.970(b). Thus, the Appeals Council may deny review after
consideration of new evidence if the new evidence does not undermine the ALJ’s
decision. Id.
“[A] federal district court must consider evidence not submitted to the
administrative law judge but considered by the Appeals Council when that court
reviews the Commissioner’s final decision denying Social Security benefits.”
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1258 (11th Cir. 2007).
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Specifically, when the Appeals Council has denied review following submission of
new evidence, a reviewing court must consider whether the new evidence renders
the ALJ’s decision erroneous and unsupported by substantial evidence. See id. at
1261-62.
As an initial matter, the treatment records dated after the ALJ’s decision on
April 26, 2013, and the September 2013 death certificate, have no bearing on this
case because they offer no information about Plaintiff’s condition on or before the
ALJ’s decision. (Tr. at 368-69). In other words, they are not chronologically
relevant. See 20 C.F.R. § 404.970(b); Wilson v. Apfel, 179 F.3d 1276, 1278-79 (11th
Cir. 1999) (“While [the physician’s] opinion one year later may be relevant to
whether a deterioration in [claimant’s] condition subsequently entitled her to
benefits, it is simply not probative of any issue in this case.”). Therefore, the
treatment records dated June 6, 2013, June 18, 2013, and May 14, 2013, and the
death certificate, do not affect the ALJ’s decision.
With regard to the remaining records from Dr. Hill, as noted previously, the
ALJ gave little weight to the treating physician Dr. Hill’s opinion partially because
of the gap in his treatment records, writing: “There is no indication that the
claimant has continued for ongoing treatment with Dr. Hill.” (Tr. at 29). Plaintiff
alleges that “the evidence submitted to the Appeals Council demonstrates that

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Dunn was treated in Dr. Hill’s office six times between April 2011 and October 25,
2012” and therefore “this reason for rejecting Dr. Hill’s opinion is erroneous.”
(Doc. 9 at 15-16).
However, this Court finds that while the new evidence offered by Plaintiff
does fill in the gap of Dr. Hill’s treatment records, it does not render the ALJ’s
decision erroneous and unsupported by substantial evidence in the record. The
records show that Dunn “continued to experience carpal tunnel pain and
weakness” (doc. 10 at 17; see tr. at 368-71), and that on July 27, 2011, Dr. Hill noted
that Dunn complained of “increasing pain involving the lower back. [But]
otherwise he is doing well.” (Tr. at 371). However, on March 5, 2012, Dunn
reported that “his back is much better.” (Tr. at 370.) Thus, the records show
nothing that would undermine the ALJ’s decision.
Plaintiff also argues that the new records submitted to the Appeals Council
“document an additional severe impairment . . . [i.e.,] neck pain from cervical spine
disease” and therefore “the ALJ’s decision is erroneous.” (Doc. 9 at 16.)
However, this Court finds that the ALJ’s adverse decision is still supported by
substantial evidence in the record as a whole. These new records show that Dunn
“complains today of neck pain” on July 26, 2011 (tr. at 371), that Dunn complained
of “increasing pain involving the neck for approximately 2 to 3 weeks that has not

20

been responsive to his usual pain-relief med” and was advised to “avoid propping
the neck” on October 24, 2011 (id.), that on December 19, 2011, Dr. Hill reported
that Dunn complained of “increasing pain involving the neck, but otherwise he is
doing well” (id.), that on February 13, 2012, Dunn complained of “neck pain”
(id.), that on March 5, 2012, Dunn complained of “increasing pain involving the
left neck” but that his general exam was “unremarkable” (tr. at 370), that Dunn
reported to Dr. Hill that his neck pain “flares occasionally” on July 11, 2012 (id.),
that on July 18, 2013, Dunn’s general exam was “unremarkable” except for
“complaints of pain in his right neck” (tr. at 368), and that Dr. Hill did not
mention any neck pain in his report on October 1, 2012 (tr. at 370), March 22, 2013,
or May 14, 2013. (Tr. at 369).
Thus, while the ALJ had not previously discussed Plaintiff’s neck pain, that
was because Plaintiff never alleged neck pain as an impairment in his disability
paperwork. Moreover, remand to consider new allegations of neck pain is
unnecessary, as these records show only that Plaintiff had some decreased range of
motion or tenderness in his neck, not that he had any actual, specific functional
limitation caused by his neck pain.
Accordingly, this Court finds that the additional evidence submitted by
Plaintiff to the Appeals Council does not undermine the ALJ’s adverse decision

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and that there is still substantial evidence in the record as a whole to support the
ALJ’s decision.
IV.

Conclusion
Upon review of the administrative record, and considering all of Plaintiff’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 and ORDERED on August 8, 2016.

_____________________________
L. Scott Coogler
United States District Judge
160704

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