Hildreth v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION - For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the parties, the decision of the Commissioner of Social Security denying Hildreths claim for a period of disability, SSI, and DIB is REVERSED and the action is REMANDED for the ALJ to consider the West Alabama Mental Health Center records. Signed by Magistrate Judge John H England, III on 9/27/2017. (KEK)

FILED
2017 Sep-27 PM 02:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
SHIRLEY HILDRETH,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case No.: 7:16-cv-00415-JHE

MEMORANDUM OPINION1
Plaintiff Shirley Hildreth (“Hildreth”) seeks review, pursuant to 42 U.S.C. § 405(g), §
205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her application for a period of disability, disability
insurance benefits (“DIB”) and supplemental security income (“SSI”). (Doc. 1). Hildreth timely
pursued and exhausted her administrative remedies. This case is therefore ripe for review under
42 U.S.C. § 405(g). The undersigned has carefully considered the record and, for the reasons
stated below, the Commissioner’s decision is REVERSED and this action is REMANDED for
further proceedings.
Factual and Procedural History
Hildreth filed her application for a period of disability, DIB, and SSI on March 13, 2012,
alleging an initial onset date of April 26, 2011. (Tr. 279, 284). Hildreth was a forty-three-yearold female on December 31, 2013, her date last insured. (“DLI”). (Tr. 76, 103). Hildreth has a

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties in this case have voluntarily consented to have a United States
Magistrate Judge conduct any and all proceedings, including trial and the entry of final
judgment. (Doc. 13).

GED and past relevant work as a certified nursing assistant. (Tr. 103). The Commissioner
initially denied Hildreth’s application, (Tr. 196), and Hildreth requested a hearing before an ALJ
where she appeared on September 5, 2013. (Tr. 202 ,99). After a hearing, the ALJ denied
Hildreth’s claim on June 27, 2014. (Tr. 73). Hildreth sought review by the Appeals Council, but
it declined her request on January 13, 2016. (Tr. 1). On that date, the ALJ’s decision became the
final decision of the Commissioner. On March 11, 2016, Hildreth initiated this action. (See doc.
1).
Standard of Review2
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 is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390, 91 S. Ct. 1420, 1422 (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,
2

In general, the legal standards applied are the same 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 for statutes or regulations found in quoted court
decisions.
2

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 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 her entitlement for a period of disability, a
claimant must be disabled as defined by the Social Security Act and the Regulations promulgated
thereunder.3 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 entitlement to
disability benefits, a claimant must provide evidence of a “physical or mental impairment” which
“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)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

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.
3

3

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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 such work exists in the national economy in significant
numbers. Id.
Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Hildreth met the insured status requirements of the Social
Security Act through December 31, 2013, and that Hildreth had not engaged in substantial
gainful activity since April 26, 2011, the alleged onset date of her disability. (Tr. 78). At Step
Two, the ALJ found Hildreth has the following severe impairments: morbid obesity; status post
open reduction internal fixation, right hip, due to fracture; status post arthroscopic surgery, right
knee; osteoarthritis, upper extremities; history of gout; and major depressive disorder. (Id.). The
ALJ noted that Hildreth also suffers from asthma with controlled medications, migraines,
hypertension, history of anemia, one event of hypoglycemia, and generalized anxiety; however,
the ALJ found these impairments only caused a slight limitation in Hildreth’s capacity for work
activity.

(Id.)

At Step Three, the ALJ found Hildreth does not have an impairment or

4

combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 80).
Before proceeding to Step Four, the ALJ determined Hildreth’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined Hildreth has the RFC
to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
except the claimant can sit at least three hours without interruption and a total
of at least five hours over the course of an eight-hour workday. The claimant
can stand and/or walk at least one hour without interruption and a total of at
least three hours over the course of an eight-hour workday. The claimant can
rarely up to but no more than one hour over the course of an eight-hour
workday, use her right lower extremity for the operation of foot controls. The
claimant can occasionally use her lower left extremity for the operation of
foot controls. The claimant can frequently use her upper extremities for
reaching in all directions, pushing, pulling, handling, and fingering. The
claimant cannot stand or walk on uneven terrain. The claimant cannot climb
ladders, ropes, poles, or scaffolds. The claimant can occasionally climb
ramps and stairs. The claimant can occasionally balance, stoop, and crouch.
She cannot kneel or crawl. She can occasionally work in wetness, humidity,
and extreme temperatures. The claimant can occasionally work in dusts,
gases, odors, and fumes. The claimant cannot work in poorly ventilated areas.
The claimant cannot work at unprotected heights. The claimant cannot work
with operating hazardous machinery. The claimant can occasionally work
while exposed to vibration. The claimant cannot operate motorized vehicles.
The claimant cannot perform work activity that requires her response to rapid
and/or frequent multiple demands.
(Tr. 82).
At Step Four, the ALJ determined Hildreth is unable to perform any past relevant work.
(Tr. 89). At Step Five, the ALJ determined, based on Hildreth’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant numbers in the national
economy Hildreth could perform. (Tr. 89). Therefore, the ALJ determined Hildreth has not been
under a disability and denied Hildreth’s claim. (Tr. 92).

5

Analysis
Hildreth contends the ALJ erred by: (1) giving improper weight to the opinion of
consultative examiner Dr. Walid W. Freij; (2) failing to address rheumatoid arthritis as a severe
impairment; and (3) failing to fully and fairly develop the record. Hildreth also argues that the
Appeals Council did not properly evaluate evidence she submitted to it after the ALJ’s decision.
None of the three arguments Hildreth makes as to errors by the ALJ have merit, but the errors of
the Appeals Counsel require reversal.
A. The ALJ properly evaluated the opinion of Dr. Freij.
Hildreth argues the ALJ erred in only giving “some weight” instead of “great weight” to
the opinion of consultative examiner Dr. Walid W. Freij. (Doc. 10 at 10). Specifically, Hildreth
argues that the ALJ’s decision is not supported by substantial evidence because he found Dr.
Freij’s opinion “consistent with the case at hand,” yet gave the opinion only “some weight” and
found Hildreth had different limitations than those Dr. Freij suggested. (Doc. 10 at 9-10).
On October 10, 2013, Dr. Walid W. Freij performed an examination on Hildreth at the
request of the Administration. (Tr. 86, 703). Dr. Freij noted Hildreth had been diagnosed with
osteoarthritis and gout. (Tr. 703). At the examination, Hildreth described having swelling in the
fingers and hands, and claimed that daily living activities, household chores, carrying and lifting
worsened her symptoms. (Tr. 703). Dr. Freij found no swelling, redness, heat, or limitation in
the range of motion in any joint and no limitation in flexion or extension of the spine; however,
he found tenderness over the right hip, limitation to 20 degrees in straight leg raising on the right
side, and limitation in the flexion of the right knee to about 100 degrees. (Tr. 704). Dr. Freij
diagnosed Hildreth with osteoarthritis affecting the fingers, toes, elbows, ankles, and wrists, right
knee arthritis status post arthroscopic surgery, a history of gout, and lower back pain likely
6

related to arthritis (although he noted there was no work-up for Hildreth’s back symptoms). (Tr.
705). Dr. Freij opined:
Based on the above history and physical examination, patient would not be
able to do work related activities that would require her to stand or walk for
any extended period of time. She’s not able to carry or lift because of the
same problems. She has extreme difficulty in bending [and] stooping, and she
is] not able to kneel. She’s able to hear [speech]. Traveling can be done in
moderation.
(Tr. 705). In addition, Dr. Freij completed a medical source statement in which he stated
Hildreth could sit for three hours at a time and five hours in an eight hour work day; could stand
and walk for 30-45 minutes at a time and two hours each in an eight-hour work day; could reach,
push, and pull occasionally; could handle, finger, and feel frequently; could never operate foot
controls with her right foot; could occasionally operate foot controls with her left foot; could
occasionally balance and climb stairs and ramps; could never climb ladders or scaffolds; and
could never stoop, kneel, crouch, or crawl. (Tr. 707-709).
The ALJ stated he gave Dr. Freij’s opinion “some weight, as it is consistent with the case
at hand.” (Tr. 88). However, the limitations in the ALJ’s RFC were somewhat less restrictive
than those offered by Dr. Freij. The ALJ and Dr. Freij agreed that Hildreth could sit at least
three hours without interruption and for a total of five hours in an eight-hour work day; could
occasionally use her left foot to operate foot controls; could not climb ladders or scaffolds, could
occasionally climb ramps or stairs, and could not kneel or crawl. (Compare tr. 82 with tr. 707709). The ALJ determined—contrary to Dr. Freij’s medical source statement—that Hildreth
could stand or walk at least one hour without interruption for a total of three hours in an eighthour work day; could frequently reach, push, pull, handle, and finger; could rarely use her right

7

foot to operate foot controls for no more than one hour during an eight-hour work day; and could
occasionally balance, stoop, and crouch. (Tr. 82).
The thrust of Hildreth’s argument is that because the ALJ found Dr. Freij’s opinion
“consistent with the case at hand,” he should therefore have deferred to Dr. Freij’s determination
of Hildreth’s RFC. First, the ALJ was not required to give any particular weight to Dr. Freij’s
opinion, as he was a one-time consultative examiner. Denomme v. Comm'r, Soc. Sec. Admin.,
518 F. App'x 875, 877 (11th Cir. 2013) (citing McSwain v. Bowen, 814 F.2d 617, 619 (11th
Cir.1987)). Second, this inverts the roles the two occupy:
According to 20 C.F.R. § 404.1527(d), the determination of whether an
individual is disabled is reserved to the Commissioner, and no special
significance will be given to an opinion on issues reserved to the
Commissioner. Section (d)(2) provides that although the Commissioner will
consider opinions from medical sources on issues such as the RFC and the
application of vocational factors, the final responsibility for deciding those
issues is reserved to the Commissioner.
Pate v. Comm'r, Soc. Sec. Admin., 678 F. App'x 833, 834 (11th Cir. 2017) (emphasis added). In
other words, “the task of determining a claimant's residual functional capacity and ability to
work is within the province of the ALJ, not of doctors.” Robinson v. Astrue, 365 F. App'x 993,
999 (11th Cir. 2010). The ALJ was not required to give Dr. Freij’s opinion on Hildreth’s
limitations great or controlling weight in determining Hildreth’s RFC because the determination
of an RFC is reserved for the commissioner. SSR 96-5p at *1. The ALJ’s comment that Dr.
Freij’s opinion was, as a general matter, “consistent with the case at hand” does not also lead to
the conclusion the ALJ should have accepted Dr. Freij’s assessment of Hildreth’s RFC.
The ALJ explained the consideration given to Dr. Freij’s opinion when he stated he gave
the opinion “some weight” for being “consistent with the case at hand.” (Tr. 88). With the
exception of his opinions regarding Hildreth’s limitations, Dr. Freij’s examination is consistent
8

with the opinions of two other consultative examiners, Dr. Thomas J. Sabourin, (tr. 485-89) and
Dr. Richard S. Abney, (tr. 557-59), to whom the ALJ gave significant weight. (Tr. 88). Dr.
Freij’s examination was also consistent with the other objective medical evidence showing no
swelling, redness, heat, or limitation in the range of motion in any joint, (tr. 583, 609, 641, 642
649 738), discomfort and reduced range of motion in her right hip (tr. 742), lower back pain (tr.
427, 434, 559, 594, 597, 745), and no restrictions or limitations in her spine, (tr. 453, 738).
Thus, substantial evidence supports the weight the ALJ assigned to Dr. Freij’s opinion.
B. The ALJ did not err in failing to list rheumatoid arthritis as a severe impairment.
Hildreth contends that the ALJ should have included rheumatoid arthritis as a severe
impairment during step two of the sequential evaluation process. (Doc. 10 at 8).
In order for an ALJ to determine a claimant has a severe impairment, a claimant must
have an impairment or combination of impairments which limits the claimant’s ability to do
basic work activities for at least twelve consecutive months.

20 C.F.R. §§ 404.1520(c),

404.1509. The claimant bears the burden of proving that a severe impairment exists. 20 C.F.R.
§ 416.912. The ALJ is not required to identify all severe impairments at step two, but “the ALJ
is required to demonstrate that it has considered all of the claimant's impairments, whether severe
or not, in combination” at step three. Heatly v. Comm’r Soc. Sec., 382 F. App’x 823, 824-25
(11th Cir. 2010). “[R]emands are required when an ALJ fails to consider properly a claimant’s
condition despite evidence in the record of the diagnosis.” Vega v. Comm’r of Soc. Sec., 265
F.3d 1214, 1219 (11th Cir. 2001) (citation omitted).
Hildreth points to her “numerous diagnoses of rheumatoid arthritis.” (Doc. 10 at 6).
However, Hildreth’s symptoms—joint pain, swelling, and decreased motion—are attributed at
various points in the record to both rheumatoid arthritis and osteoarthritis, (see, e.g., tr. 634-37
9

(noting both osteoarthritis and rheumatoid arthritis as chronic problems; 640-43 (same)); to only
one of the two conditions, (see, e.g., tr. 592-94 (noting joint pain and joint swelling in Hildreth’s
hands attributable to “mild OA”); 650-52 (noting diagnosis for osteoarthritis on emergency room
visit for joint pain); 703 (observing previous diagnosis of osteoarthritis)) , or simply to “arthritis”
with no underlying etiology, (see tr. 608). Hildreth does not contend her rheumatoid arthritis
produces any symptoms not potentially also attributable to her osteoarthritis, which the ALJ
found to be a severe impairment. (Tr. 78).
Hildreth also elides the distinction between identifying a severe impairment at step two
and addressing limitations imposed by an impairment at step three. Had the ALJ failed to find a
severe impairment at all at step two, Hildreth’s argument would make more sense. However, an
ALJ’s failure to identify every severe impairment at step two is harmless error as long as the ALJ
identifies some severe impairment (and thus continues with the sequential evaluation), assuming
that the ALJ accounts for the impairment’s symptoms at step three. Heatly, 382 F. App’x at 82425. The ALJ did so here, considering the symptoms and effects of rheumatoid arthritis at step
three despite not explicitly noting rheumatoid arthritis as a severe impairment. Specifically, he
noted Hildreth’s visits to Anderson Regional Medical Center and the Anderson Arthritis and
Rheumatology Center (both of which involved complaints and diagnoses of rheumatoid arthritis,
(see tr. 628, 634-37) and that Hildreth complained of or received treatment for musculoskeletal
pain, knee pain, hand pain, wrist pain, calf pain, joint pain, shoulder pain, and decreased motion
in her wrists and knees during those visits. (Tr. 85). The ALJ also gave “some weight” to the
opinion of Dr. Freij, which assessed substantially the same symptoms—attributed to
osteoarthritis—and contained Dr. Freij’s opinion of Hildreth’s limitations (although, as discussed
above, the ALJ did not wholly subscribe to that opinion). (Tr. 86, 88). Hildreth does not
10

contend the RFC failed to account for the symptoms produced by her rheumatoid arthritis, nor
does Hildreth identify any additional limitations that should have been imposed. Therefore,
whatever error the ALJ committed in omitting rheumatoid arthritis as a severe impairment was
harmless.
C. The ALJ was not required to develop the record further.
Hildreth contends that the ALJ failed to fully and fairly develop the record in two ways:
(1) the ALJ should have issued a subpoena to obtain additional medical records; and (2) the
ALJ’s use and solicitation of vocational expert testimony was improper.
The ALJ “has a basic obligation to develop a full and fair record.” Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997). “[T]here must be a showing of prejudice before it is found
that . . . the case must be remanded to the Secretary for further development of the record.” Id. at
1423. “The court should be guided by whether the record reveals evidentiary gaps which result
in unfairness or clear prejudice.” Id. (citing Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir.
1995)) (internal quotation marks omitted).
1. The ALJ did not err in refusing to issue a subpoena.
At the hearing, Hildreth’s counsel noted there were outstanding records from the West
Alabama Mental Health Center (“WAMHC”), and the ALJ allowed Hildreth two weeks to
submit those records. (Tr. 120, 144). However, on April 9, 2014, Hildreth’s counsel sent a letter
to the ALJ to inform him that he could not submit the records because “the center has not
complied with [his] requests” for them. (Tr. 386). Hildreth’s counsel stated “[t]he treatment
records are vital to this claim” and requested the ALJ issue a subpoena for them. (Id.). The ALJ
declined to do so, concluding “[n]either the representative nor the claimant provided any proffer
that would suggest that the records would materially affect the undersigned’s decision.” (Tr. 79).
11

Hildreth contends the ALJ’s failure to issue the subpoena violated his duty to fairly develop the
record. (Doc. 10 at 10-11).
An ALJ may issue subpoenas for the production of records at the request of a party when
it is “reasonably necessary for the full presentation of the case.” 20 C.F.R. § 404.950(d)(2). The
party’s written request for a subpoena must “state the important facts that the . . . document is
expected to prove[] and indicate why these facts could not be proven without issuing a
subpoena.” Id. Here, Hildreth did not comply with a regulatory prerequisite intended to show
that an evidentiary gap exists, instead simply stating that the records were “vital to this claim”
without identifying any important facts the records would prove or why the facts could not be
proven without the subpoena. (Tr. 386). In other words, there was nothing to suggest that the
records sought by Hildreth would be meaningfully different from the evidence before the ALJ,
and Hildreth’s own failure to supply the “reasonable necessity” for subpoenaing the records was
not unfair to her. Therefore, the ALJ did not err by denying Hildreth’s request for a subpoena.
2. The ALJ did not err in obtaining testimony from additional vocational experts.
At the hearing, the ALJ posed several hypotheticals to the vocational expert (“VE”), and
challenged the VE’s conclusions as to whether particular jobs satisfied the hypotheticals. (Tr.
131-41). Following the hearing, after concluding the VE’s “responses did not appear consistent
with the undersigned’s interactions with other vocational experts,” the ALJ sent a set of
interrogatories to an additional VE, Leigh Clemmons. (Tr. 90, 388-92). Hildreth provided the
ALJ with two interrogatories and requested the ALJ submit them to Clemmons, (tr. 385); the
ALJ included one, but declined to include the other.

Hildreth argues the ALJ erred by

challenging the VE’s suggestions, suggesting jobs for the VE to find, and failing to submit her
interrogatory to Clemmons. (Doc. 10 at 14).
12

Hildreth offers no authority indicating any of these actions is reversible error. As part of
his “basic obligation to develop a full and fair record,” Graham, 129 F.3d at 1422, the ALJ is
within his authority to obtain additional testimony from another VE as long as it does not
prejudice the claimant. Notably, Hildreth does not argue she was prejudiced by any of the
actions she claims were improper. At the hearing, the ALJ asked the VE to consider whether the
limitations he imposed in his hypothetical were consistent with the jobs proposed by the VE.
(Tr. 136-41). If anything, this was to Hildreth’s benefit; the ALJ questioned the VE about jobs
that he felt were more demanding than the hypothetical permitted. (See, e.g., tr. 132 (“just in my
humble opinion, I believe that type of work would require more aggressive physical capacity
than the hypothetical allows. It may fit within the DOT, but I don’t — I just don’t envision that
person performing that work.”); 137 (“Would an election clerk not face during the election
periods rapid and/or frequent multiple demands [foreclosed by the hypothetical]?”); 139 (“I
could almost see someone in that position even though they spend most of the job sitting, I could
see a scenario where they would have to get up and respond quickly”)).
The ALJ also stated he found the first VE’s responses “did not appear consistent with the
undersigned’s interaction with other vocational experts.” (Tr. 90). While Hildreth argues this
raises the possibility the ALJ improperly discussed the case with outside individuals, (doc. 10 at
15), no evidence supports this improbable assertion.

Hildreth also takes issue with the

contradictions between the testimony of the VE at the hearing and the Clemmons’s interrogatory
responses, (id.), but the ALJ has the authority to resolve contradictory evidence, including
contradictory vocational expert testimony. See Ehrhart v. Sec’y of Health & Human Servs., 969
F.2d 534, 541 (7th Cir. 1992).

13

Hildreth also contends that the ALJ should have submitted her second interrogatory to
Clemmons. (Doc. 10 at 15). In her second interrogatory, Hildreth requested the VE consider
whether the jobs provided would change if she experienced “pain and side effects from
medications that prevent her from maintaining her attention, concentration, and pace for periods
of at least two hours . . . .” (Tr. 385). The ALJ had already considered that Hildreth’s pain and
medications would cause her to be unable to respond to rapid or frequent multiple demands, (tr.
91, 391), and there is no evidence to support the additional limitation Hildreth offers. The ALJ
was not required to include unsupported allegations in hypothetical questions. Crawford v.
Comm. of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004). Therefore, the ALJ did not err in
refusing to submit the second interrogatory to the VE.
Finally, Hildreth takes issue with the fact that Clemmons’s qualifications were not
included in the responses to the interrogatories. (Doc. 10 at 15). The ALJ had Clemmons’s
qualifications on file and requested she correct them if necessary. (Tr. 388). Hildreth raised no
objection to Clemmons’s qualifications when given the opportunity to review the interrogatories
that would be sent to Clemmons, nor did she request Clemmons’s qualifications. (Tr. 385).
Hildreth also did not raise any issues with Clemmons’s qualifications when asking if the ALJ
had sent Hildreth’s proposed interrogatories to the Clemmons. (Tr. 393). Hildreth declined to
raise this argument as part of her appeal to the Appeals Council. (Tr. 394-397). Whatever
objections she may have had to Clemmons’s qualifications, Hildreth has waived them. See Biles
v. Colvin, 2016 WL 3876443, at *10 (N.D. Fla. June 28, 2016) (citing King v. Astrue, 2011 U.S.
Dist. LEXIS 49707, at *36-38 (N.D. Cal. May 10, 2011)) (holding plaintiff waived right to
challenge the VE’s qualifications as a result of failing to object).

14

None of Hildreth’s challenge to the ALJ’s handling of vocational expert testimony have
merit, and none provides a basis to reverse or remand.
D. The Appeals Council erred in evaluating new evidence during the appeals
process.
Hildreth submitted the records the ALJ declined to subpoena to the Appeals Counsel, but
the Appeals Council declined to enter the evidence into the record, stating it was “about a later
time.” (Tr. 2, 5, 40-52). Hildreth argues that the Appeals Council erred in evaluating this
evidence. (Doc. 10 at 16).
The Appeals Council must review a case if the Council receives additional evidence that
is new, material, and chronologically relevant, and “there is a reasonable probability that the
additional evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5);
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007). “[W]hether evidence
meets the new, material, and chronologically relevant standard is a question of law subject to . . .
de novo review,” and an erroneous failure to consider such evidence warrants remand.
Washington v. Soc. Sec. Admin., Com'r, 806 F.3d 1317, 1321 (11th Cir. 2015).
Hildreth argues the Appeals Council improperly reviewed records from WAMHC dated
November 25, 2013, through May 15, 2014 because it did not address them in its notice and the
records are new, material, and chronologically relevant. (Doc. 10 at 16). The Appeals Council
rejected the new submission entirely, simply stating the records were “from a later time.” (Tr.
2). While some of the records postdated the ALJ’s June 27, 2014 decision and were thus
arguably not chronologically relevant, the Appeals Council did not mention the records that
predated the ALJ’s decision at all; in fact, it misstated the dates of the WAMHC records entirely.
It characterized the two sets of records from WAMHC as “dated September 30, 2014 to January
15

27, 2015,” (tr. 2), (when in reality this set spans September 30, 2014 to March 6, 2015, (see tr.
40-45)) and “dated July 30, 2014 to December 13, 2014,” (tr. 2), (when this set contains records
from November 25, 2013 to September 30, 2014, (see tr. 46-52)). 4
The pre-decision records consist of four pages comprising three visits to WAMHC. At
the first of these visits, a family counseling appointment dated November 25, 2013, Hildreth
reported aches and pains associated with gout. (Tr. 52). Hildreth was medication complaint and
oriented to person, place, time, and situation; but sleeping poorly and restless, with a depressed
mood and a labile affect. (Id). Intervention was described as “attentive listening; clarification;
discussed need for psychiatric appointment.” (Id.). Hildreth scheduled her next appointment.
(Id.). The next record concerns an individual counseling visit on February 13, 2014, at which
Hildreth was oriented to person, depressed, irritable, and agitated, with a labile affect. (Tr. 51).
Hildreth reported joint pain and increased anxiety and depression. (Id.). Hildreth and the
provider “discussed the need for a psychiatric consult to determine the need for medication.”
(Id.). At her next visit, an individual counseling session dated May 15, 2014, Hildreth had a
normal affect with a depressed mood, was calm, and was oriented as to person, place, time, and
situation; she reported arthritis pain, not doing as many activities, and her mood down on most
days. (Tr. 50). Hildreth was encouraged to think positively. (Id.). The final page, also dated
May 15, 2014, concerns only Medicaid reimbursement. (Tr. 49).

The Commissioner notes the Appeals Council “considered the additional evidence that
was dated before the date of the ALJ’s decision . . . but found that the information did not
provide a basis for changing the ALJ’s decision[.]” (Doc. 11 at 20-21). Since the Appeals
Council incorrectly stated the earliest WAMHC records began after the date of the ALJ’s
decision, the Commissioner’s argument does not support the conclusion the Appeals Council
considered the WAMHC records at all.
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4

These records are material. While the ALJ determined Hildreth’s depression was a
severe impairment and accounted for it in her RFC, he also found Hildreth’s visit to Dr. Drew
Huffman in January 2014 (at which Hildreth was negative for anxiety and depression) showed
that the Cymbalta she had been prescribed for depression was “successful in addressing her
symptoms.” (Tr. 88). Therefore, he found Hildreth’s depression “severe, but not disabling.”
(Id.). However, the visits to WAMHC noted above, each of which involve Hildreth presenting
with depression, postdate the visit at which the ALJ found Hildreth’s depression effectively
treated. Additionally, at two of these visits, the provider discussed the need for a psychiatric
consultation to determine whether additional medication was required. Because the records
directly contradict the ALJ’s conclusion Hildreth’s depression was asymptomatic with treatment
(and thus not disabling), there is a reasonable possibility that considering them would change the
administrative result. Remand is appropriate to consider the new evidence.
Hildreth also argues the Appeals Council rejected WAMHC records dated July 30, 2014,
through January 27, 2015, solely because they were dated after the ALJ’s decision. (Doc. 10 at
16). While these records are potentially not chronologically relevant because they postdate the
ALJ’s decision, that is not necessarily sufficient to discount them. See Washington, 806 F.3d at
1322 (holding new evidence dated after the ALJ’s decision chronologically relevant when it
assessed the conditions that existed prior to the decision and there was no evidence of
deterioration). On remand, the ALJ should assess whether the records dated after June 27, 2014
are chronologically relevant.
Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, the decision of the Commissioner of Social Security
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denying Hildreth’s claim for a period of disability, SSI, and DIB is REVERSED and the action
is REMANDED for the ALJ to consider the West Alabama Mental Health Center records.
DONE this 27th day of September, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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