Mitchell v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/8/2018. (PSM)

FILED
2018 Mar-08 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MICKEY LYNN MITCHELL,
Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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7:17-cv-0177-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Mickey Lynn Mitchell, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
his applications for Supplemental Security Income (“SSI”), a period of disability,
and Disability Insurance Benefits (“DIB”). Mr. Mitchell 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).
Mr. Mitchell was 47 years old at the time of the Administrative Law Judge’s
(“ALJ’s”) decision, and he has an eleventh grade education. (Tr. at 65.) His past
work experiences include employment as a carpenter and a pest exterminator. (Tr.
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at 65-66, 209.) Mr. Mitchell claims that he became disabled on May 19, 2013, due
to arthritis, diabetes, neuropathy, high blood pressure, and shoulder pain. (Tr. at
208.) May 19, 2013, is the day after the date that the Commissioner issued a final
decision determining that Mr. Mitchell was not disabled on an earlier application.
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. §§
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

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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
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).

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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 Mr. Mitchell
was insured through September 30, 2014. (Tr. at 41.) He further determined that
Mr. Mitchell has not engaged in SGA since the alleged onset of his disability. (Id.)
According to the ALJ, Plaintiff’s diabetes with neuropathy, sleep apnea,
hypertension, history of shoulder injury, and degenerative disc disease are
considered “severe” based on the requirements set forth in the regulations. (Tr. at
42.) However, he found that these impairments neither meet nor medically equal
any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at
43.) Further, he determined that Mr. Mitchell has the following RFC: performance
of light, unskilled work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b); he

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could have frequent interaction with co-workers, supervisors, and the general
public; he cannot do any climbing of ropes, ladders or scaffolds; he cannot work at
unprotected heights or with hazardous machinery; he cannot do more than
occasional stooping, crouching, or crawling; he cannot do more than occasional
overhead reaching bilaterally; and he cannot be exposed to dust, fumes, or other
respiratory irritants. (Tr. at 44.)
According to the ALJ, Mr. Mitchell is unable to perform any of his past
relevant work, he is a “younger individual age 18-49,” he has a “limited
education,” and he is able to communicate in English, as those terms are defined by
the regulations. (Tr. at 51.) The ALJ then enlisted a Vocational Expert and used
Medical-Vocational Rule 202.18 as a guideline for finding that there are a
significant number of jobs in the national economy that he is capable of performing,
such as general office clerk, assembler, and packer. (Tr. at 52.) The ALJ concluded
his findings by stating that Plaintiff “has not been under a disability, as defined in
the Social Security Act, from May 19, 2013, 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

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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
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)).

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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
Mr. Mitchell argues that the Commissioner’s decision should be reversed

and remanded for one reason: the ALJ’s finding that his subjective complaints of
pain were not credible is not supported by substantial evidence. Plaintiff also
mentions several times in passing that additional evidence presented to the Appeals
Council after the ALJ’s unfavorable decision should have been considered. The
Court will address both arguments.
A.

Credibility Determination

At his hearing, Mr. Mitchell testified that he could not work due to pain in
his back and his shoulders. (Tr. at 66). He stated that his back felt like “two blocks
grinding against each other . . . . I get a really bad, sharp pain in my back and I have
to sit down.” (Id.) With regard to his shoulder, Mr. Mitchell said that he fell off of
his roof, and “I ripped up my left side up—rotator cuff. And they did surgery, and

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it didn’t grow back correctly. They said there wasn’t any guarantee, if they went
back in there, that it would—ever grow back correctly.” (Tr. at 67, 69). Mr.
Mitchell testified that, on a scale of one to ten, his average pain was a seven, which
he experienced for at least five hours during a nine-hour work period, including
breaks. (Tr. at 69-70, 72-73). He said that he sat in a recliner with his legs elevated
for up to five hours during the same nine-hour work period to attempt to manage
his pain. (Tr. at 73).
Mr. Mitchell also described his activities of daily living. He lived with his
employed wife, daughter and stepson. (Id.) His wife got the children ready for
school each morning. (Id.) He would greet them when they got home from school,
but his 16-year-old stepson would tend to care for his six-year-old daughter’s needs,
such as getting after school snacks. (Id.) His pain prevented him from engaging in
any heavy cleaning around the house. (Tr. at 73-74). He could occasionally go to
the grocery store but the main bulk of the shopping was done by his wife and
stepson. (Tr. at 69, 74.) Due to pain, he was prevented from lifting his daughter.
(Tr. at 69.) He had not hunted or fished for five years prior to his hearing,
something he used to routinely enjoy. (Tr. at 74-75). His church attendance had
been curtailed due to his narcolepsy and resultant snoring. (Tr. at 75). He would
often fall asleep while waiting for doctors’ visits, only to wake up with patients

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around him snickering. (Tr. at 76). He had stinging neuropathic pain in his hands
and feet, between a seven and eight on the one-to-ten pain scale. The pain felt like
fire one minute and needles the next. (Tr. at 76-77).
When a plaintiff attempts to prove disability based on his subjective
complaints, he must provide evidence of an underlying medical condition and
either objective medical evidence confirming the severity of his alleged symptoms
or evidence establishing that his medical condition could be reasonably expected to
give rise to his alleged symptoms. See 20 C.F.R. § 416.929d(a), (b); Social Security
Ruling (“SSR”) 96-7p; Wilson v. Barnhart, 284 F.3d 1219, at 1225–26 (11th Cir.
2002). If the objective medical evidence does not confirm the severity of the
claimant’s alleged symptoms but the claimant establishes that he has an
impairment that could reasonably be expected to produce his alleged symptoms,
the ALJ must evaluate the intensity and persistence of the claimant’s alleged
symptoms and their effect on his ability to work. See 20 C.F.R. § 416.929(c), (d);
SSR 96-7p; Wilson, 284 F.3d at 1225-26. This entails the ALJ determining a
claimant’s credibility with regard to the allegations of pain and other symptoms.
See id. The ALJ must “[explicitly articulate] the reasons justifying a decision to
discredit a claimant’s subjective pain testimony.” Moore v. Barnhart, 405 F.3d
1208, 1212 n.4 (11th Cir. 2005). “When the reasoning for discrediting is explicit

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and supported by substantial evidence, “the record will not be disturbed by a
reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995). The
Commissioner’s regulations set forth the following factors an ALJ should consider
when evaluating a claimant’s symptoms: (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 alleviate pain, including side effects
and effectiveness; (5) treatment received to relieve pain; and (6) any other
measures the claimant uses to relieve pain. 20 C.F.R. § 404.1529(c)(3); SSR 16-3p,
2016 WL 1119029, at *7 (2016). The ALJ evaluates these factors in connection with
the other evidence in the record to make a credibility determination. 20 C.F.R. §
404.1529(c)(4).
In this case, the ALJ found that Mr. Mitchell met the first prong of the
Eleventh Circuit’s pain standard in that he presented evidence of an underlying
medical condition(s). The ALJ did not find, however, that the evidence confirmed
the severity of the alleged pain arising from Mr. Mitchell’s conditions or that any
impairment of such severity could reasonably be expected to give rise to the
disabling pain and other limitations alleged by him.
Substantial evidence supports the ALJ’s credibility determination. As an
initial matter, any references Plaintiff makes to medical records and pain

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complaints made before May 18, 2013, his alleged onset date, have little relevance
to the present application, considering Plaintiff already received a finding of not
disabled for that time period. Indeed, Plaintiff regularly presented to the Maude
Whatley Health Clinic both before and after his alleged onset date, which again,
was one day after he received an unfavorable decision on his first disability benefits
application. (Tr. at 279-393, 403-19, 420-41). Most importantly, Plaintiff has failed
to demonstrate that his pain worsened after May 18, 2013. A review of the medical
record reveals that his subjective complaints of pain were consistent before and
after his alleged onset date, and there is no indication his pain worsened after May
2013. For example, Plaintiff reported various back, leg, shoulder, and foot pain
prior to May 18, 2013, which included, at discrete times, complaints of decreased
hand strength, hand pain, joint swelling, leg pain, foot pain/numbness, and
musculoskeletal pain. (Tr. at 278, 279, 281, 294, 314-17, 329-31, 336-39, 340-43,
358-61). Plaintiff’s treatment regimen was conservative and consisted of
medication management in each instance. (Tr. at 278, 279, 281, 294, 314-17, 32931, 336-39, 340-43, 358-61).
Despite the fact that Plaintiff underwent an MRI of his spine in April 2013,
shortly before his alleged onset date, his subsequent treatment for back pain
remained conservative. (Tr. at 44-50, 452-53.) According to the MRI report, the

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disc space in Plaintiff’s spine was normal for his age, although he did have bone
spurs and some thickening and hardening of his spinal ligaments as well as some
narrowing of the facet joints in his spine. (Tr. at 453). Plaintiff did not have any disc
herniation or fractures. (Id.) On May 9, 2013, less than two weeks before his alleged
date of onset, Plaintiff did not demonstrate back pain or muscle weakness on
examination. (Tr. at 380). His chronic conditions (back pain, hypertension, and
diabetes) were noted as stable with no changes. (Tr. at 381). Plaintiff’s treatment
consisted only of medication, diet restrictions, and moist heat for his pack pain, as
needed. (Id.) The Eleventh Circuit has repeatedly held that medical treatment that
is conservative in nature undermines a finding of disability based on pain. See, e.g.,
Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996).
Indeed, while Plaintiff sought treatment for back pain again in January, April,
July, and October 2014, each time, prescribing medication was the only regimen
indicated by the physician. (Tr. at 403-05, 414). In April it was noted that Plaintiff
had a normal gait and demonstrated no edema or motor deficits. (Tr. at 405.) In
December 2014 Plaintiff twice sought treatment for back pain that was moderate to
severe, and the examiner’s treatment notes indicate that Plaintiff’s problem is
stable and has existed for five years. (Tr. at 425, 429.) At both December 2014
visits, Plaintiff did not demonstrate any problems walking, weakness or numbness

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in his arms or legs, joint pain, joint swelling, or muscle weakness. (Tr. at 426, 43031). Plaintiff had moderate restriction on his flexion and extension of the spine, as
well as a limited active range of motion. (Tr. at 427, 431). Plaintiff’s medications
were adjusted to address his pain complaints, and he was scheduled for massage
therapy as well as chiropractic manipulation. (Tr. at 425, 427, 431). In January
2015, an office visit report indicated his knee joint pain was intermittent and stable
and that he had no changes in his chronic problems. (Tr. at 420). Plaintiff’s
neurological examination was normal and he had no complaints of back pain,
although his lumbar back was tender. (Tr. at 421-22). Plaintiff’s treatment was
limited to medication management, and he was advised to engage in physical
activity at least three times a week for 30 minutes. (Tr. at 420-22.) The ALJ noted
that the recommendation to exercise regularly “would not be instructed if the
clinical objective findings were as severe as alleged” by Mr. Mitchell. (Tr. at 46.)
Similarly, although Plaintiff alleges his shoulder pain worsened significantly
after May 19, 2013, the evidence does not support that allegation. An August 2014
MRI of the right shoulder, which he had done two weeks after sustaining a fall,
indicated a probable bone bruise and degenerative changes, along with complete
and partial tears of three tendons as well as mild joint effusion. (Tr. at 266). The
medical records do not indicate Plaintiff had any follow up treatment for these

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conditions. As the ALJ noted, Plaintiff was not referred to an orthopedic or
shoulder specialist based on these MRI results. (Tr. at 49). The treatment reports
from Maude Whatley Health Clinic dated after August 2014 indicate Plaintiff
complained of back pain, but no joint pain, joint swelling, muscle weakness, or neck
pain. (Tr. at 426, 430-31, 435, 439). At each physical examination, Plaintiff did not
have any abnormalities noted with respect to his arm or shoulder. (Tr. at 427, 43031, 435, 439). In January 2015, at Plaintiff’s last physical examination before the
ALJ issued his opinion, Plaintiff’s only musculoskeletal limitations were tenderness
in his lumbar spine and in both knees. (Tr. at 422).
Nor has Plaintiff demonstrated that his complaints regarding his obstructive
sleep apnea are supported by substantial evidence. Specifically, treatment notes
indicate that he was diagnosed with sleep apnea on September 3, 2014. (Tr. at
400.) His sleep apnea was controlled with the use of a CPAP (continuous positive
airway pressure) machine. (Tr. at 421). Follow up treatment notes indicate he was
simply being monitored for sleep apnea and was still using his CPAP. (Tr. at 422).
No ongoing problems were noted.
Additionally, with regard to Plaintiff’s subjective allegations that his
hypertension is not well-controlled, medical records indicate Plaintiff’s
hypertension was controlled with medication on a consistent basis. (Tr. at 273, 275,

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276, 277, 279, 28, 283, 284, 285, 362, 381). Moreover, there is no evidence of any
specific symptoms related to his hypertension that translate to functional
limitations greater than those found by the ALJ.
Plaintiff also argues that the ALJ improperly considered his self-reported
daily activities in determining that his was not entirely credible. While a claimant’s
ability to participate in activities of daily living in short duration is not dispositive of
a finding of disability or non-disability, it is one factor that an ALJ may consider in
making the ultimate determination. See 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).
However, the ALJ actually discussed Plaintiff’s self-reported daily activities
within the portion of his opinion finding that Plaintiff did not have a severe mental
impairment per the Psychiatric Review Technique (“PRT”) at steps two and
three, not during his credibility determination at step four. (Tr. at 43-43.) A severe
impairment is an impairment that significantly limits a claimant’s physical or
mental abilities to do basic work activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), (c),
404.1521(a); SSR 96-3p; Bridges, 815 F.2d at 625. Examples of basic work activities
are physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling; capacities for seeing, hearing, and speaking;

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understanding, carrying out, and remembering simple instructions; use of
judgment; responding appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting. SSR 85-28. An
impairment must be severe for at least 12 consecutive months to be considered a
severe impairment at step two of the sequential evaluation process. See 20 C.F.R.
§§ 404.1505(a), 404.1509, 404.1520(a)(4)(ii); SSR 96-3p. The claimant bears the
burden of proving that an impairment is a severe impairment. See Doughty, 245
F.3d at 1278. Meanwhile, a non-severe impairment is “merely a slight abnormality
which has a minimal effect on the general ability to work.” Hillsman v. Bowen, 804
F.2d 1179, 1181 (11th Cir. 1986). The PRT requires the ALJ to evaluate a claimant’s
mental condition in terms of activities of daily living; social functioning;
concentration, persistence or pace; and decompensation. See 20 C.F.R. §§
404.1520, 416.920. Again, PRT ratings are not an assessment of a claimant’s RFC;
instead, they are used to rate the severity of a claimant’s mental impairments at
steps two and three of the sequential evaluation process See 20 C.F.R. §§ 404.1520,
416.920.
Substantial evidence supports the ALJ’s findings with regard to Plaintiff’s
daily activities and whether he had a severe mental impairment. Following the
PRT, the ALJ first noted Plaintiff has no more than a mild restriction in activities of

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daily living. (Tr. at 42). Specifically, the ALJ noted Plaintiff drives, uses a riding
lawn mower, prepares simple meals, goes shopping with his wife, and takes care of
most of his personal hygiene with some assistance from his wife. (Id.) Continuing
to social functioning, the ALJ determined Plaintiff has no more than a mild
restriction. (Id.) Plaintiff reported he talks with his wife and children daily, and
visits with his parents several times a week. The ALJ also noted there is no
indication Plaintiff has isolated himself from others based on mental issues. (Tr. at
43). The ALJ then concluded Plaintiff has no more than mild limitations with
concentration, persistence, or pace. (Id.) Plaintiff watches television and reads,
pays bills, and counts change. The ALJ found there is no indication that any
depression or anxiety causes more than a mild difficulty in this area. (Id.) Finally,
with regard to decompensation, the ALJ noted the record does not document any
episodes of decompensation. (Id.) The record supports the ALJ’s conclusions on
this point. Specifically, Plaintiff’s psychiatric evaluations at Maude Whatley Health
Clinic revealed no depression or anxiety complaints after May 18, 2013. Plaintiff
consistently displayed normal mood and affect and was oriented to time, place,
person, and situation. (Tr.at 390, 391, 404, 405, 414, 421, 427, 431, 434, 435, 438,
439). Moreover, there was little to no change in Plaintiff’s medication regimen to

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address his depression. (Tr. at 390, 391, 404, 405, 414, 421, 427, 431, 434, 435, 438,
439).
In sum, the Commissioner’s credibility determination is subject only to
limited review in the courts to ensure that substantial evidence supports the ALJ’s
finding. See Hand v. Heckler, 761 F.2d 1545, 1548-49 (11th Cir. 1985), vacated for
rehearing en banc, 774 F.2d 428 (11th Cir. 1985), reinstated sub nom. Hand v.
Bowen, 793 F.2d 275 (11th Cir. 1986). Here, the ALJ specifically addressed
Plaintiff’s allegations of pain in his opinion, and he provided explicit and reasonable
reasons for rejecting Plaintiff’s testimony.
B.

Additional Evidence Submitted to Appeals Council

“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., 496 F.3d 1253, 1261 (11th Cir. 2007). The Appeals
Council has the discretion not to review the ALJ’s denial of benefits. See 20 C.F.R.
§ 416.1470(b). However, “[t]he Appeals Council must consider new, material and
chronologically relevant evidence and must review the case if ‘the administrative
law judge’s action, findings, or conclusion is contrary to the weight of the evidence
currently of record.’” Ingram, 496 F.3d at 1261 (emphasis added); see also 20
C.F.R. §§ 404.970(b), 416.1470(b). When considering the Appeals Council’s

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denial of review, a reviewing court considers such new evidence, along with all the
other evidence in the record, to determine whether substantial evidence supports
the ALJ’s decision. See 20 C.F.R. §§ 404.970(b), 416.1470(b); Ingram, 496 F.3d at
1266. Evidence is chronologically relevant if it “relates to the period on or before
the date of the [ALJ] hearing decision.” 20 C.F.R. §§ 404.970(b), 416.1470(b); see
McGriff v. Comm’r of Soc. Sec., 654 F. App’x 469, 472 (11th Cir. 2016) (Appeals
Council did not err in refusing to consider new evidence that related to a time
period after the date of the ALJ’s decision); Clough v. Comm’r of Soc. Sec., 636 F.
App’x 496, 497-98 (11th Cir. 2016) (affirming district court’s determination that
evaluations conducted after the ALJ’s decision concerned “a later time” and thus
were not chronologically relevant). In Washington v. Comm’r of Soc. Sec., however,
the Eleventh Circuit announced that examinations conducted after an ALJ’s
decision may still be chronologically relevant if they relate back to the period before
the ALJ’s decision and provide new, noncumulative evidence. 806 F.3d 1317, 1323
(11th Cir. 2015).
In this case, Plaintiff submitted additional medical records to the Appeals
Council in support of his request for reconsideration of the ALJ’s unfavorable
decision. (Tr. at 15-23, 24-33). These records postdated the ALJ’s May 14, 2015,
decision by over a year. Specifically, the report from the Clinic for Rheumatic

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Diseases (“CRC”) is dated July 2016, and the reports from University Orthopedic
Clinic and Spine Center (“University Clinic) are August 8, 2016, and August 9,
2016. (Tr. at 15-23, 24-33). The Appeals Council determined that these records did
not provide a basis for changing the ALJ’s decision because they related to a later
time period. (Tr. at 2). The Appeals Council advised Plaintiff that if he wanted the
agency to consider whether he was disabled after May 14, 2015, he needed to
submit new applications. (Id.)
Plaintiff argues that these medical records should be viewed as relating back
to his condition during the relevant period (May 2013 through September 2014)
and showing that his condition deteriorated even further. The Court disagrees.
Plaintiff’s July 25, 2016, CRC treatment report indicated he fell in his bathtub on
July 20, 2016, and reported “increased pain to his left shoulder, neck, and hips
since the fall with the left shoulder pain being severe.” (Tr. at 15). X-rays of his
neck, pelvis, and shoulder indicated abnormalities, and he complained of anxiety
and depression, as well as ankle swelling, back pain, joint pain, morning stiffness,
muscle weakness, neck pain and numbness in his extremities. (Tr. at 16-17). On
examination, Plaintiff was observed using a cane, and the examiner documented
numerous musculoskeletal limitations that were not present on examination during
the time considered by the ALJ. (Tr. at 18). Plaintiff’s depression was reported to

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be recurrent but mild. (Tr. at 20). Plaintiff was continued on his current medication
and provided with dietary education, guidance, and counseling. (Tr. at 20).
The treatment reports from University Clinic also discuss the fact that
Plaintiff’s fall in July 2016 caused increased issues. Specifically, Plaintiff
complained of increased sharp pain in his right shoulder occurring on activity, pain
in the left shoulder, and constant sharp pain in the left hand. (Tr. at 24, 32). On
examination, Plaintiff’s shoulders were normal with no swelling, crepitus, atrophy,
or other abnormalities present, although he had a restricted range of motion based
on pain. (Tr. at 26-27). Plaintiff presented with trigger finger on his left hand, but
the rest of the hand examination was normal. (Tr. at 28). This condition was not
documented in the medical reports from the relevant period. An MRI of his left
shoulder indicated he had tendon tears and a degenerative ganglion cyst formation
near the joint. (Tr. at 29). Similarly, these abnormalities were not recorded in any
of the medical records related to Plaintiff’s shoulders prior to this report.
These conditions were not present during the time considered by the ALJ.
Rather, these additional treatment notes indicate a worsening of Plaintiff’s
condition after May 2015. Plaintiff’s treating source recommended surgical
intervention to address his finger and shoulder limitations. (Tr. at 29). Plaintiff had
both surgeries on August 30, 2016. (Tr. at 31). As the records presented to the ALJ

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indicate, surgical intervention was never recommended before May 2015. While
Plaintiff’s condition may have progressively worsened after May 2015, remand of
the current application is not appropriate. Plaintiff is not, however, without
recourse. As the Appeals Council advised, if his condition has declined since the
final decision on these applications, he may reapply for benefits as of the date of the
new application.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr.

Mitchell’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 March 8, 2018.

_____________________________
L. Scott Coogler
United States District Judge
160704

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