Robinson v. Colvin
MEMORANDUM OPINION AND ORDER: the Commissioner's final decision issued 7/2/14 denying plaintiff's applications for DIB and SSI benefits is AFFIRMED under 42:405(g) and 1383(c)(3). Signed by Magistrate Judge Katherine P. Nelson on 7/24/2015. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LATESHA L. ROBINSON,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 14-00375-N
MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Latesha Robinson (“Robinson”) has
brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review
of a final decision of the Defendant Commissioner of Social Security (“the
Commissioner”) denying her protective applications for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and
supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. § 1381, et seq. By the consent of the parties (see Doc. 16), the Court has
designated the undersigned Magistrate Judge to conduct all proceedings and order
the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73. (See Doc. 18).
Upon consideration of the parties’ briefs (Docs. 12, 13) and the administrative
record (Doc. 11) (hereinafter cited as “(R. [page number(s)])”),1 the Court finds that
the Commissioner’s decision is due to be AFFIRMED.
With the Court’s consent, the parties jointly waived the opportunity for oral
argument. (Docs. 15, 17).
On March 11, 2011, Robinson protectively filed applications for DIB and SSI
with the Social Security Administration (“SSA”),2 alleging disability beginning April
28, 2010. 3 After her applications were initially denied, Robinson requested a
hearing on her applications, which was held in Mobile, Alabama, before an
Administrative Law Judge (“ALJ”) on January 15, 2013. (R. 22).
On March 14, 2013, the ALJ issued an unfavorable decision on Robinson’s
applications, finding her “not disabled” under the Social Security Act. (See R. 1929). Robinson requested review of the ALJ’s decision by the Appeals Council for the
SSA’s Office of Disability Adjudication and Review (R. 17), which denied Robinson’s
request on July 2, 2014. (R. 8-12).
On August 11, 2014, Robinson filed this action under §§ 405(g) and 1383(c)(3)
for judicial review of the Commissioner’s final decision. (Doc. 1).
See Ingram v.
Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law
“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).”
Sanders v. Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala.
Sept. 28, 2012).
“For SSI claims, a claimant becomes eligible in the first month where she is both
disabled and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For
DIB claims, a claimant is eligible for benefits where she demonstrates disability on
or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
of this Circuit is that a court may review, under sentence four of section 405(g), a
denial of review by the Appeals Council.”); 42 U.S.C. § 1383(c)(3) (“The final
determination of the Commissioner of Social Security after a hearing [for SSI
benefits] shall be subject to judicial review as provided in section 405(g) of this title
to the same extent as the Commissioner's final determinations under section 405 of
this title.”); 42 U.S.C. § 405(g) (“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social Security may
Standard of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is
‘ “supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew,
The record reflects that Robinson resides in this judicial district. Thus, venue is
proper in this Court. See 42 U.S.C. § 405(g) (“Such action shall be brought in the
district court of the United States for the judicial district in which the plaintiff
resides, or has his principal place of business…”).
reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ”
Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8
(11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]'s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). “In determining
whether substantial evidence exists, [a court] must…tak[e] into account evidence
favorable as well as unfavorable to the [Commissioner’s] decision.”
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Moreover, “[t]here is no
presumption…that the Commissioner followed the appropriate legal standards in
deciding a claim for benefits or that the legal conclusions reached were valid.
Instead, [the court] conduct[s] ‘an exacting examination’ of these factors.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citing Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990)) (internal citation omitted). In sum, courts
“review the Commissioner’s factual findings with deference and the Commissioner’s
legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per
curiam) (“In Social Security appeals, we review de novo the legal principles upon
which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). However, we review the resulting decision only to determine
whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec.,
363 F.3d 1155, 1158–59 (11th Cir. 2004).”). “ ‘The [Commissioner]'s failure to apply
the correct law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates reversal.’ ”
Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991)).
Eligibility for…SSI requires that the claimant be disabled. 42 U.S.C.
§…1382(a)(1)-(2). A claimant is disabled if she is unable “to engage in
any substantial gainful activity by reason of a medically determinable
physical or mental impairment ... which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C.
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. Feb. 11,
2015) (per curiam) (unpublished).5
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014).
See also Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir.
2007) (“Unpublished opinions are not controlling authority and are persuasive only
insofar as their legal analysis warrants.”).
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).6
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant's age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a plaintiff proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
plaintiff is capable—given his or her age, education, and work history—of engaging
in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
764 F.2d 834, 836 (11th Cir. 1985).
Finally, but importantly, although “the
[plaintiff] bears the burden of demonstrating the inability to return to [his or] her
past relevant work, the Commissioner of Social Security has an obligation to
develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
“When no new evidence is presented to the Appeals Council and it denies
review, then the administrative law judge's decision is necessarily reviewed as the
final decision of the Commissioner, but when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.
Claim on Judicial Review
The ALJ “reversibly erred in failing to articulate specific reasons for rejecting
the opinion of Plaintiff treating physician.” (Doc. 12 at 1).
At Step One, the ALJ determined that Robinson had “not engaged in
substantial gainful activity since April 28, 2010, the alleged onset date.” (R. 24). At
Step Two, the ALJ determined that Robinson had the following severe impairment:
calcaneal fracture with ORIF (“open reduction, internal fixation”) of the right foot,
stemming from an automobile accident on April 28, 2010.
Three, the ALJ found that Robinson did not have an impairment or combination of
impairments that meets or equals the severity of the specified impairments in the
Listing of Impairments. (R. 25). Robinson does not challenge any of the ALJ’s
determinations at Steps One through Three, or at Step Five. Her claim of error
concerns the ALJ’s analysis in Step Four.
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth
step…20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the
claimant's RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Robinson had the RFC “to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b).”7 (R. 25-28).
“To determine the physical exertion requirements of different types of employment
in the national economy, the Commissioner classifies jobs as sedentary, light,
medium, heavy, and very heavy. These terms are all defined in the
regulations…Each classification…has its own set of criteria.” Phillips, 357 F.3d at
1239 n.4. “Light work is defined as work that ‘involves lifting no more than 20
Robinson’s sole claim on judicial review is that, in determining her RFC, the
ALJ erred by failing to articulate specific reasons for rejecting the medical opinions
of Robinson’s treating physician, Dr. Mark Perry, M.D. “ ‘Medical opinions are
statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of [the claimant's]
impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what
[the claimant] can still do despite impairment(s), and [the claimant's] physical or
mental restrictions.’ ”
Winschel, 631 F.3d at 1178-79 (quoting 20 C.F.R. §§
“In assessing medical opinions, the ALJ must
consider a number of factors in determining how much weight to give to each
medical opinion, including (1) whether the physician has examined the claimant; (2)
the length, nature, and extent of a treating physician's relationship with the
claimant; (3) the medical evidence and explanation supporting the physician's
opinion; (4) how consistent the physician's opinion is with the record as a whole; and
(5) the physician's specialization. These factors apply to both examining and nonexamining physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523
(11th Cir. Sept. 30, 2014) (per curiam) (unpublished) (internal citations and
quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)).
“[T]he ALJ must state with particularity the weight given to different medical
pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds.’…The regulations further state that ‘[e]ven though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.’ ” Id. n.5 (quoting 20 C.F.R. § 404.1567(b), which is
identical to § 416.967(b)).
opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citing Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)). However, the ALJ “may
reject the opinion of any physician when the evidence supports a contrary
conclusion.” Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v. Comm'r of
Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam) (unpublished).
“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician,
psychologist, or other acceptable medical source who provides, or has provided,[
the claimant] with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc.
Sec., 179 F. App'x 589, 591 (11th Cir. May 2, 2006) (per curiam) (unpublished)
(quoting 20 C.F.R. § 404.1502). “Absent ‘good cause,’ an ALJ is to give the medical
opinions of treating physicians ‘substantial or considerable weight.’ ” Winschel, 631
F.3d at 1179 (quoting Lewis, 125 F.3d at 1440). “Good cause exists ‘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.’ With good cause, an ALJ may
disregard a treating physician's opinion, but he ‘must clearly articulate [the]
reasons’ for doing so.” Id. (quoting Phillips, 357 F.3d at 1240-41) (internal citation
omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240 (“[T]he opinion of a treating
physician may be rejected when it is so brief and conclusory that it lacks persuasive
weight or where it is unsubstantiated by any clinical or laboratory findings.
Further, the Secretary may reject the opinion of any physician when the evidence
supports a contrary conclusion.” (citation omitted)).
The ALJ summarized Dr. Perry’s medical findings and opinions as follows:
In a report dated June 9, 2011, Mark Perry, M.D., a treating physician,
noted it had been approximately one year since the claimant’s
operative treatment. He also referenced that the claimant had been
denied for disability twice. Dr. Perry referenced the claimant’s report
that she still had significant pain when walking or ambulating. The
physical examination findings revealed tenderness to palpation of the
peroneal tendons, and pain with motion of the subtalar joint.
However, x-rays showed good consolidation of the fracture but with
decreased posterior heel height. Dr. Perry opined that the claimant
was a good candidate for some form of disability (Exhibit 8F). The
following year, on May 15, 2012, the claimant presented for follow-up
of what Dr. Perry referenced as a “yearly surveillance.” Examination
findings revealed the right ankle was approximately three-fourths
normal. X-rays showed nice consolidation of the fracture, although it
was noted the claimant had lost some calcaneal height as well as
subsequent dorsiflexion of her talus. Dr. Perry recommended a shoe
heel lift to compensate for lost height. He opined that, given the
claimant’s injury, she would be a good candidate for disability (Exhibit
On June 12, 2012, Dr. Perry completed a Physical Capacities
Evaluation, in which he estimated the claimant was able to sit for a
total of 8 hours in an 8-hour workday, and could stand/walk for a total
of one hour each in an 8-hour workday. He added the claimant was
able to lift and/or carry up to five pounds for one hour. She was unable
to use her right leg or foot for repetitive actions. The claimant could
reach for two hours, and bend for one hour in an 8-hour workday, but
could not squat, crawl, or climb. She was precluded from activities
that involved unprotected heights and had moderate restrictions in
terms of driving automotive equipment. Dr. Perry opined that the
claimant had been impaired for two years, and was unable to work for
8 hours per day, 40 hours per week on a sustained basis within the
limitations noted without missing more than two days of work per
month (Exhibit 10F). Dr. Perry also completed a Clinical Assessment
of Pain form, indicating he had treated the claimant since April 28,
2010 for a right calcaneal fracture. He indicated that pain would
distract the claimant from adequately performing daily activities or
work. He also indicated that physical activity would greatly increase
the claimant’s pain and cause distraction from task or total
abandonment of task. It was noted that the impact from pain would
cause limitations, but not to such degree as to cause serious problems
at work. Dr. Perry indicated the claimant needed a heel lift for her
shoe, and noted that her pain had been at the level indicated for one
year. He reiterated that the claimant had been impaired for two years,
and was unable to work for 8 hours per day, 40 hours per week on a
sustained basis within the limitations noted without missing more
than two days of work per month (Exhibit 11F).
Of note, Dr. Perry, the claimant’s treating physician, has provided
several medical source statements, including a physical capacity
assessment regarding the claimant’s pain, in which he noted she has
tried several times for disability based on her right foot condition
(Exhibits 10F-12F). Interestingly, after a follow-up examination on
July 11, 2011, and following a brief, 15-minute evaluation a year later,
on May 15, 2012, Dr. Perry determined that the claimant would be a
good candidate for disability (Exhibits 8F, 12F)…
Robinson asserts that “[t]he ALJ rejected Dr. Perry’s opinion without fully
Further, she does not explain exactly how much weight is given
to Dr. Perry’s opinions.” (Doc. 12 at 3). Robinson’s assertions are without merit.
The ALJ expressly assigned “very little weight” to Dr. Perry’s opinions, explaining:
“[T]he opinion evidence from Dr. Perry, particularly with regard to the Physical
Capacity Assessment (Exhibit 10F) and the Clinical Assessment of Pain (Exhibit
11F), are internally inconsistent, as the treating physician does not state what
objective findings he relied upon; and his treatment records do not support his
assessments.” (R. 27-28). The ALJ further noted that his determined RFC was
supported by “the claimant’s conservative treatment history and reports of her
activities of daily living.”
The ALJ found more credible the objective
medical evidence of examining physician Dr. William Crotwell, III, M.D., and
assigned his opinions “great weight.” (R. 27-28).
The ALJ articulated “good cause” for assigning less than controlling weight to
Dr. Perry’s opinions, finding that they were not bolstered by the evidence (e.g.
Robinson’s “conservative treatment history and reports of her daily living”9), that
evidence supported a contrary finding, and that they were inconsistent with Dr.
Perry’s own medical records. See Winschel, 631 F.3d at 1179.10 Robinson, in her
Cf. Petteway v. Comm'r of Soc. Sec., 353 F. App'x 287, 290 (11th Cir. Nov. 18,
2009) (per curiam) (unpublished) (“[G]ood cause existed to reject the opinion
because Dr. Leber's conclusion was inconsistent with Petteway's medical records,
which showed infrequent medical visits at intervals of two or more months.”);
Harrison v. Comm'r of Soc. Sec., 569 F. App'x 874, 877 (11th Cir. June 24, 2014)
(per curiam) (unpublished) (“Dr. Davina–Brown's physical examinations of Harrison
were consistently unremarkable, and she never found that Harrison suffered from
any of the paradigmatic symptoms frequently associated with the most severe cases
of fibromyalgia, such as joint swelling, synovitis, or tender trigger points. For
example, Dr. Davina–Brown prescribed medications for Harrison's chronic pain but
never recommended more aggressive treatment, such as visits to the emergency
room for pain or trigger point injections. The conservative and routine nature of Dr.
Davina–Brown's treatment plan suggests that Harrison's impairments—while
significant—were not so severe that Harrison could not perform any job duties.”).
An “ALJ is not required to give a treating physician's opinion considerable weight
if the claimant's own testimony regarding her daily activities contradicts that
opinion. See Phillips, 357 F.3d at 1241 (finding that an ALJ's decision to give a
treating physician's opinion little weight was supported by substantial evidence
because the claimant's admissions concerning her activities were at odds with the
treating physician's assessment).” Leiter v. Comm'r of Soc. Sec. Admin., 377 F.
App'x 944, 949 (11th Cir. May 6, 2010) (per curiam) (unpublished). See also Crow v.
Comm'r, Soc. Sec. Admin., 571 F. App'x 802, 806-07 (11th Cir. July 7, 2014) (per
curiam) (unpublished) (“[E]vidence of Crow's daily activities also provided good
cause to discount his treating physician's opinion. Phillips, 357 F.3d at 1241.”).
The ALJ was also not required to accept Dr. Perry’s opinions that Robinson was
“a good candidate for disability” because “the resolution of that issue is reserved for
the Commissioner. See 20 C.F.R. §§ 404.1527(d), 416.927(d). ‘A statement by a
medical source that [a claimant is] “disabled” or “unable to work” does not mean
that [the Commissioner] will determine that [the claimant is] disabled.’ Id. §§
brief substantive discussion regarding the ALJ’s rejection of Dr. Perry’s opinions
(Doc. 12 at 2-3), has not attempted to demonstrate why the ALJ’s decision to reject
those opinions is not supported by substantial evidence, instead asking the Court to
simply accept her bare assertion that the ALJ articulated no reasons for doing so.11
Accordingly, the Court OVERRULES Robinson’s lone assignment of error and
finds that the Commissioner’s decision is due to be AFFIRMED.
404.1527(d)(1), 416.927(d)(1).” Forsyth v. Comm'r of Soc. Sec., 503 F. App'x 892, 894
(11th Cir. Jan. 16, 2013) (per curiam) (unpublished).
Robinson notes that Dr. Perry “also completed a disabled parking permit
application for the Plaintiff.” (Doc. 12 at 3). The placement of this observation
(between the statements “On behalf of the Plaintiff, Dr. Perry completed a clinical
assessment of pain and a physical capacities evaluation” and “The ALJ rejected Dr.
Perry’s opinion without fully articulating why” (Doc. 12 at 3)) appears to suggest
that Robinson considers the parking permit application to be additional opinion
evidence that the ALJ was required to consider. This suggestion is misleading.
Robinson does not cite where the form may be found in the record, and the
Commissioner does not address it in her brief. It appears the parking permit
application (R. 16) in question was not submitted to the ALJ for consideration.
Rather, the parking permit application appears to have been completed after the
AJL issued his opinion denying Robinson’s applications and was presented as
additional evidence to the Appeals Council on review. Unlike an ALJ’s decision,
“[t]he Appeals Council … [i]s not required to provide a detailed rationale for
denying review.” Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 784-85 (11th
By arguing only that the ALJ did not properly consider the parking permit
application, Robinson has forfeited any claim of error that the Appeals Council
failed to review the new evidence. But cf. id. at 784 (“In Ingram, the claimant
argued the Appeals Council failed to consider her new evidence of mental disability.
[496 F.3d] at 1262. We held the record contradicted the claimant's argument,
explaining that the Appeals Council accepted the new evidence but denied review
because, even in light of the new evidence, there was no error in the ALJ's decision.
Id. We are confronted with the same situation in this case. Mitchell contends the
Appeals Council failed to evaluate his new evidence, but the record demonstrates
otherwise. As in Ingram, the Appeals Council accepted Mitchell's new evidence but
denied review because the additional evidence failed to establish error in the ALJ's
decision. See id. On this record, we are confident the Appeals Council adequately
evaluated Mitchell's new evidence.”).
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued July 2, 2014, denying Robinson’s applications
for DIB and SSI benefits is AFFIRMED under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 24th day of July 2015.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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