Sims v. Astrue

Filing 22

Order that the decision of the Commissioner is AFFIRMED; Judgment shall be entered in favor of the Commissioner. Signed by Magistrate Judge Katherine P. Nelson on 1/30/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SANDRA SIMS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
Of Social Security,
Defendant.

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CIVIL ACTION NO. 12-469-N

ORDER
Plaintiff brought the instant appeal from the unfavorable decision of the
Commissioner on plaintiff’s claims for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). This matter has been referred to the undersigned
for preparation of a Report and Recommendation pursuant to 28 U.S.C. §636 and Local
Rule 72.2(c)(3). The parties have waived oral argument (doc. 18, 21), and have
consented to the exercise of jurisdiction by a Magistrate Judge (doc. 19). This action has
been referred to the undersigned for all purposes (doc. 20).
Upon review of the record, including particularly the briefs of the parties, it is the
determination of this court that the decision of the Commissioner is due to be
AFFIRMED.
Procedural Background
On August 18, 2009, plaintiff filed for a period of disability, DIB and SSI. Doc.
12 at 111-17. The claim was initially denied on November 30, 2009. Id. at 73. Plaintiff
timely filed a Request for Hearing (id. at 78), and an Administrative Law Judge (“ALJ”)
held a hearing on December 20, 2010; plaintiff was not represented by counsel at the

hearing. The ALJ issued an unfavorable decision1 on May 24, 2011. Id. at 33. Plaintiff
obtained counsel, who filed a request for review to the Appeals Council (id. at 28);
plaintiff submitted additional evidence to the Appeals Council, some of which she
claimed should have been obtained and considered by the ALJ. The request for review
was denied on July 3, 2012, (id. at 4-5) which rendered the ALJ’s decision the final
decision of the Commissioner. Plaintiff timely filed the instant appeal on July 19, 2012.
Doc. 1)
Issues Presented
The sole issue raised by plaintiff concerns the ALJ’s duty to develop the record.
Plaintiff asserts that the ALJ breached that duty by failing to obtain updated medical
records from the plaintiff’s providers. Plaintiff’s counsel submitted the updated records,
as well as some other medical records which had been created subsequent to the ALJ’s
decision, to the Appeals Council. The Appeals Council denied review, finding that the
additional records did not provide a basis for changing the ALJ’s decision. Doc. 12 at 45.
The Commissioner acknowledges the ALJ’s duty, and that the ALJ stated on the
record at the hearing that she would try to obtain records from Franklin Primary Health
Center and Mobile Infirmary Medical Center (doc. 14 at 7). Without confessing to error,
1

Plaintiff was 55 years of age when she filed her claim and 57 years of age at the
time of the hearing; she was thus considered a “person of advanced age” under the Social
Security regulations. See 20 CFR § 404.1563(e). Her past relevant work included jobs as
a sitter/companion, and as a cashier/checker. The ALJ found that claimant was insured
through December 31, 2013, that she had not engaged in substantial gainful activity, and
that she suffered from the following severe impairments: otitis media, carotid artery
stenosis, esophageal reflux and arthropathy. However, the ALJ further determined that
plaintiff’s impairments did not meet or equal a listing, that she had the residual functional
capacity to perform light work with certain limitations, and that she was thus not
disabled.

the Commissioner also acknowledges that the record at the time of the ALJs decision did
not include the Mobile Infirmary records, but states that it did contain the Franklin
Primary Health records. Id., citing doc. 12 at 209-232 (Mobile Infirmary records from
July 21-25, 2010). However, according to the Commissioner, even if the court finds that
the ALJ erred, the records demonstrate that any error was harmless, particularly as the
additional records were considered by the Appeals Council.
Legal Standard
Scope of Judicial Review
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F.Supp.2d 1287, 1296 (N.D.Ga.
2008); Fields v. Harris, 498 F.Supp. 478, 488 (N.D.Ga. 1980). This Court may not decide
the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. If substantial evidence supports the Commissioner's factual findings and
the Commissioner applies the proper legal standards, the Commissioner's findings are
conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987); Hillsman v.
Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986); Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983). “Substantial evidence” means more than a scintilla, but less than a
preponderance. In other words, “substantial evidence” means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion and it must be enough
to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales,
402 U.S. 389 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. “In
determining whether substantial evidence exists, [the Court] must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner's] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Even
where there is substantial evidence to the contrary of the ALJ's findings, the ALJ decision
will not be overturned where “there is substantially supportive evidence” of the ALJ's
decision. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of
the ALJ's application of legal principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558
(11th Cir. 1995); Walker, 826 F.2d at 999.
Statutory and Regulatory Framework
The Social Security Act's general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n

.1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical
language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20
C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits when the
person is unable to
Engage in 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 12 months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is one resulting from
anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?2
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).

2

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's
Residual Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242–43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”),or hear testimony
from a vocational expert (VE). Id. at 1239–40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
Discussion
The additional Franklin Primary Health Center records (doc. 12 at 233-263)
include:
1/23/12 Progress note: lists complaints as headache, left leg pain, lower back pain, and
states that plaintiff was there to complete a form for disability but that the doctor cannot

complete the chart. The record noted marked limitation in range of motion in plaintiff’s
knees, left shoulder and left wrist, as well as diminished strength in her left wrist: she
received refills of prescriptions for Lortab [7.5 mg, 60/month], Valium, and new
medications Indocin and depomedral.
6/22/11 Missed appointment notation.
5/20/11 Progress note: diagnoses of chronic sinusitis, osteoarthritis in her hands and
knees, severe chronic pain, insomnia, and opiate dependency
5/25/113 A radiologist’s report which found nothing in plaintiff’s right or left knee or her
sinuses, but found ‘mild linear subpleural scarring versus atelectasis in the lower left
lobe’ of her lungs.
2/2/11 Progress note: ear pain and infection, pain in her hands (found no swelling or
objective signs), anemia and acid reflux
10/25/10 Progress note: complaints of insomnia, and swelling in hands, feet, and legs.
Examination revealed no edema, redness or swelling. Prescribed meloxicam.
10/11/10 Progress note: complaints of insomnia, headache, mouth hurts, swollen ears,
leg and hand pain. Examination showed no objective signs. Various tests were ordered.
Prescription for meloxicam [15 mg, 1/day] for arthralgia.
9/24/10 Progress note: complaints of migraine, need refills, sleep aid, point pain, acid
reflux. The doctor notes that plaintiff is a “poor historian” and that he needs the Mobile
Infirmary records to evaluate her hospital visit. Plaintiff was treated for depression,
anemia, and headache.
8/13/10 Progress note: ear infection noted, complained of insomnia, acid reflux and a
fever.
7/21/10 Progress note: follow up appointment
5/18/12 Assessment form: presented with right ear infection: diagnosis was made of
otitis extreme, pharyngitis and rhinitis.
1/23/12 Lab results: negative
10/25/10 Lab results, urinalysis: negative or trace.
5/23/11 Lab reults: negative, except elevated cholesterol and triglycerides.

3

The ALJ issued her decision on May 24, 2011. Thus, only records dated prior to
that date arguably would have been available had the ALJ sought updated records.

2/3/11 Lab results: negative except for elevated ‘RDW’.
10/12/10 Lab results: negative except for low ‘MCH’ and ‘MCHC’, and elevated
‘RDW’.
7/21/10 Lab results: notation, admitted to hospital, nausea, vomiting. Resistant
staphylococcus aureus Heavy Growth; negative for strep, influenza..
In addition, plaintiff’s counsel states that records exist which show that plaintiff
obtained a handicapped parking permit. It does not appear that plaintiff’s counsel has
submitted any documentation to the Commissioner or to the court proving that plaintiff
applied for or was granted a handicapped parking permit. This fact has not been proven,
but would not make a difference in the court’s analysis. See e.g., Riccard v.
Commissioner of Social Sec., 2012 WL 6106408 (M.D.Fla. December 10, 2012)(granting
of handicapped parking permit of little relevance).
Plaintiff’s counsel states that the additional records are important because they
“show the severity of Plaintiff’s complaints along with the frequency with which the
Plaintiff sought treatment.” Doc. 13 at 3. These new records offer more examples of
treatment similar to those already in the administrative record and considered by the ALJ;
the additional evidence is thus merely incremental, arguably bolstering the prior evidence
of ongoing health problems but not demonstrating greater concern by plaintiff’s
physicians, more compelling evidence of the debilitating effects of plaintiff’s conditions,
or a new diagnosis or substantially altered residual functional capacity.
The Appeals Council considered the additional evidence. The Appeals Council
must consider new, material, and chronologically relevant evidence and must review the
case if the ALJ's “action, findings, or conclusion is contrary to the weight of the evidence
currently of record.” 20 C.F.R. § 404.970(b); Ingram v. Comm'r of Soc. Sec. Admin., 496

F.3d 1253, 1261 (11th Cir. 2007). The Commissioner found that the additional evidence
did not require the alteration of the ALJ’s decision.
Reviewing the evidence of record, including the newly filed evidence prior to the
ALJ’s decision, the court finds that there is no likelihood that the ALJ’s decision would
have been altered had she had such additional evidence before her; the ALJ’s stated
reasons for finding that plaintiff was not disabled apply with equal force despite the
addition of the cumulative evidence to the same effect. Though not expressly and
separately raised by the plaintiff, the court also finds that the ALJ’s decision remains
supported by substantial evidence in light of the supplemented record.
Conclusion
For the foregoing reasons, it is hereby ORDERED that the decision of the
Commissioner is AFFIRMED. Judgment shall be entered in favor of the Commissioner.
DONE this the 30th day of January, 2013.
/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE