Woods v. Berryhill

Filing 19

MEMORANDUM OPINION AND ORDER that Commissioner's decision denying plaintiff's application fro a period of disability & DIB benefits is REVERSED and REMANDED under sentence four of 42:405(g) for further proceedings consistent with this decision. Signed by Magistrate Judge Katherine P. Nelson on 10/11/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARYLYN MARIE WOODS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.

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CIVIL ACTION NO. 1:17-00452-N

MEMORANDUM OPINION AND ORDER
Plaintiff Marylyn Marie Woods brought this action under 42 U.S.C. § 405(g)
seeking judicial review of a final decision of the Defendant Commissioner of Social
Security (“the Commissioner”) denying her application for a period of disability and
disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42
U.S.C. § 401, et seq. Upon consideration of the parties’ briefs (Docs. 11, 12) and
those portions of the administrative record (Doc. 10) (hereinafter cited as “(R. [page
number(s) in lower-right corner of transcript])”) relevant to the issues raised, the
Court finds that the Commissioner’s final decision is due to be REVERSED and
REMANDED to the Commissioner under sentence four of § 405(g) for further

As the Plaintiff notes, on March 6, 2018, the U.S. Government Accountability
Office determined that, under the Federal Vacancies Reform Act of 1998, Nancy
Berryhill “was not authorized to continue serving using the title of Acting
Commissioner[ of Social Security] after November 16[,]” 2017.
See
https://www.gao.gov/products/D18772#mt=e-report (last visited Oct. 10, 2018).
However, appropriate action has apparently since been taken to permit Berryhill to
again
serve
under
the
title
of
Acting
Commissioner.
See
https://www.ssa.gov/agency/commissioner.html (last visited Oct. 10, 2018);
https://www.ssa.gov/org/coss.htm (last visited Oct. 10, 2018).
1

administrative proceedings.2
I.

Background

On April 16, 2015, Woods filed an application for a period of disability and
DIB with the Social Security Administration (“SSA”), alleging disability beginning
April 10, 2015. 3 After her application was initially denied, Woods requested a
hearing before an Administrative Law Judge (“ALJ”) with the SSA’s Office of
Disability Adjudication and Review, which was held on December 5, 2016. On May
12, 2017, the ALJ issued an unfavorable decision on Woods’s application, finding
her not disabled under the Social Security Act and thus not entitled to benefits.
(See R. 10 – 25).
The Commissioner’s decision on Woods’s application became final when the
Appeals Council for the Office of Disability Adjudication and Review denied her
request for review of the ALJ’s decision on August 11, 2017. (R. 1 – 6). Woods
subsequently filed this action under § 405(g) for judicial review of the
Commissioner’s final decision. See 42 U.S.C. § 405(g) (“Any individual, after any

With the consent of the parties, 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), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Docs. 16, 17). The parties jointly waived the
opportunity for oral argument. (See Docs. 15, 18).
2

“Title II of the Social Security Act (Act), 49 Stat. 620, as amended, provides for the
payment of insurance benefits to persons who have contributed to the program and
who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)(D) (1982 ed.,
Supp. III).” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). “For DIB claims, a
claimant is eligible for benefits where she demonstrates disability on or before the
last date for which she were insured.” Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005) (per curiam) (citing 42 U.S.C. § 423(a)(1)(A) (2005)).
3

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 allow.”); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262
(11th Cir. 2007) (“The settled law of this Circuit is that a court may review, under
sentence four of section 405(g), a denial of review by the Appeals Council.”).
II.

Standards 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,
reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ”
Id. (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, [the Court] 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). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”).4 “In determining whether substantial evidence exists, [a

Nevertheless, “[m]aking district courts dig through volumes of documents and
transcripts would shift the burden of sifting from petitioners to the courts. With a
typically heavy caseload and always limited resources, a district court cannot be
expected to do a petitioner’s work for him.” Chavez v. Sec'y Fla. Dep't of Corr., 647
F.3d 1057, 1061 (11th Cir. 2011) (28 U.S.C. § 2254 habeas proceedings). “[D]istrict
court judges are not required to ferret out delectable facts buried in a massive
record,” id., and “ ‘[t]here is no burden upon the district court to distill every
potential argument that could be made based on the materials before it…’ ” Solutia,
Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (Fed. R. Civ.
P. 56 motion for summary judgment) (quoting Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc)) (ellipsis added). Generally,
claims of error not raised in the district court are deemed waived. See Stewart v.
Dep’t of Health & Human Servs., 26 F.3d 115, 115-16 (11th Cir. 1994) (“As a general
principle, [the court of appeals] will not address an argument that has not been
raised in the district court…Because Stewart did not present any of his assertions
in the district court, we decline to consider them on appeal.” (applying rule in
appeal of judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3)); Crawford, 363 F.3d
at 1161 (same); Hunter v. Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir.
2016) (per curiam) (unpublished) (same); Cooley v. Comm'r of Soc. Sec., 671 F. App'x
767, 769 (11th Cir. 2016) (per curiam) (unpublished) (“As a general rule, we do not
consider arguments that have not been fairly presented to a respective agency or to
the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating
as waived a challenge to the administrative law judge’s reliance on the testimony of
4

court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
See also McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986) (“We are
constrained to conclude that the administrative agency here…reached the result
that it did by focusing upon one aspect of the evidence and ignoring other parts of
the record. In such circumstances we cannot properly find that the administrative
decision is supported by substantial evidence. It is not enough to discover a piece of
evidence which supports that decision, but to disregard other contrary evidence.
The review must take into account and evaluate the record as a whole.”).
However, the “substantial evidence” “standard of review applies only to
findings

of

fact.

No

similar

presumption

of

validity

attaches

to

the

[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
a vocational expert that was ‘not raise[d] . . . before the administrative agency or
the district court’).”); In re Pan Am. World Airways, Inc., Maternity Leave Practices
& Flight Attendant Weight Program Litig., 905 F.2d 1457, 1462 (11th Cir. 1990)
(“[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she
must first clearly present it to the district court, that is, in such a way as to afford
the district court an opportunity to recognize and rule on it.”); Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan American World Airways in
Social Security appeal).

standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).

This Court

“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘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)).

Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994).
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).”).
Eligibility for DIB…requires that the claimant be disabled. 42 U.S.C.
§[] 423(a)(1)(E)…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.
§[] 423(d)(1)(A)…
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 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
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
experience.
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

In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
5

The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
6

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 claimant 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
claimant 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,
764 F.2d 834, 836 (11th Cir. 1985).

Finally, although the “claimant 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). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.

In determining whether a

claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.

Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
quotation omitted).
When the ALJ denies benefits and the Appeals Council denies review of that
decision, the Court “review[s] the ALJ’s decision as the Commissioner’s final
decision.” Doughty, 245 F.3d at 1278. 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.
Nevertheless, “when the [Appeals Council] has denied review, [the Court] will look
only to the evidence actually presented to the ALJ in determining whether the
ALJ’s decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998).
III.

Summary of the ALJ’s Decision

At Step One, the ALJ determined that Woods met the applicable insured
status requirements through December 31, 2020, and that she had not engaged in
substantial gainful activity since April 10, 2015, the alleged disability onset date.
(R. 15). At Step Two, the ALJ determined that Woods had the following severe
impairments: cervical degenerative disc disease; lumbar degenerative disc disease,
status post fusion; digestive disorders; migraine; and vision loss. (R. 15 – 17). At
Step Three, the ALJ found that Woods did not have an impairment or combination
of impairments that met or equaled the severity of one of the specified impairments
in the relevant Listing of Impairments. (R. 18).
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 Woods had the RFC “to perform light work as
defined in 20 CFR 404.1567(b)[,]”7 subject to the following: Woods “should do no
climbing of ladders, ropes or scaffolds[;] could occasionally climb ramps and stairs
and occasionally stoop, crouch, and crawl[;] would require no exposure to
unprotected heights or hazardous machinery[;] cannot perform work tasks requiring

“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.
See also 20 C.F.R. § 404.1567.
7

normal visual field or depth perception[; and] cannot perform commercial driving[,
but] does have adequate vision for reading normal print, viewing a computer
monitor, and handling small objects.” (R. 19 – 24).
After considering the testimony of a vocational expert, the ALJ then
determined that Woods was capable of performing past relevant work as a surgical
technician and anesthesia scheduler. (R. 24 – 25). Accordingly, the ALJ did not
proceed to Step Five and determined that Woods was not disabled under the Social
Security Act during the relevant adjudicatory period. (R. 25).
IV.
A.

Analysis

New Evidence to Appeals Council

In one of her four assignments of reversible error, Woods claims that the
Appeals Council failed to properly consider new evidence she presented to it in
requesting review of the ALJ’s decision.
“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. Admin., 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).
But the Appeals Council “must consider new, material, and
chronologically relevant evidence” that the claimant submits. Ingram,
496 F.3d at 1261; see also 20 C.F.R. §§ 404.970(b), 416.1470(b).
Washington v. Soc. Sec. Admin., Com'r, 806 F.3d 1317, 1320 (11th Cir. 2015) (per
curiam).
In its order denying Woods’s request for review of the ALJ’s decision, the
Appeals Council explained that the additional evidence she submitted to it –

“medical evidence from Mobile Infirmary Medical Center dated March 15, 2017 to
March 21, 2017 (11 pages), the medical records from the Orthopaedic Group
P.C./Todd Volkman, M.D. dated March 15, 2017 to July 5, 2017 (19 pages), and the
medical records from Steven Orleans, M.D. dated December 20, 2016 (4 pages)” (R.
2) – “does not show a reasonable probability that it would change the outcome of the
decision” (i.e., that the new evidence was not “material”8); therefore, the Appeals
Council “did not consider and exhibit this evidence.” (R. 2). When, as here, “ ‘the
Appeals Council refuses to consider new evidence submitted to it and denies review,
that decision is ... subject to judicial review....’ ” Washington, 806 F.3d at 1320
(quoting Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994)). “[W]hether evidence meets the new, material, and chronologically relevant
standard is a question of law subject to our de novo review.” Id. at 1321 (quotation
omitted). Therefore, “when the Appeals Council erroneously refuses to consider
evidence, it commits legal error and remand is appropriate.” Id.9

See Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (evidence is “material”
when it is “relevant and probative so that there is a reasonable possibility that it
would change the administrative result”).
8

The case law relied on by both Woods and the Commissioner in briefing this
claim is inapposite. As in Washington, “[t]his is not a case in which the Appeals
Council considered the additional evidence and then denied review. When the
Appeals Council accepts additional evidence, considers the evidence, and then
denies review, it is not ‘required to provide a detailed rational for denying review.’
Mitchell v. Comm'r, Soc., Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014). But we
are addressing a different issue in this case: whether the Appeals Council
committed legal error when it refused to consider the claimant’s additional
evidence.” 806 F.3d at 1321 n.5.
The undersigned is of the opinion that Mitchell’s rule that the Appeals
Council need not provide a detailed rational for denying review after accepting and
9

Woods asserts, and the Commissioner does not dispute, that the medical
records the Appeals Council refused to consider document “anterior cervical
discectomy and fusion at the C4-5 and C5-6 levels, with instrumentation, by Dr.
Volkman at Mobile Infirmary.”

(Doc. 11 at 15.

See also Doc. 12 at 11 (“The

evidence on which Plaintiff bases her argument consists of a report of Plaintiff’s
March 2017 cervical surgery as well as treatment notes, some of which post-date
the ALJ’s decision (Tr. Plaintiff’s Brief at 15; Tr. 36-46).”)). Woods claims that these
records “documenting [her] need for surgery, and having a two-level cervical fusion,
clearly document physical problems which would reasonably be expected to impact
[her] ability to engage in work at the ‘light’ level of physical exertion.” (Doc. 11 at
15).

However, as the Commissioner’s brief correctly points out, the ALJ was

already aware that Woods was scheduled for the March 2017 cervical fusion surgery
at the time the ALJ issued her decision. Specifically, the ALJ cited to and discussed
notes from a February 10, 2017 examination with Dr. Volkman (see R. 23 (citing
SSA Ex. 22F)), at which Woods said she was “pretty miserable” due to “persistent
symptoms in her neck, right shoulder and right arm[,]” and informed Dr. Volkman
considering new evidence also applies to denials for review after refusing to consider
additional evidence. Because judicial review of such a refusal is de novo, the Court
owes no deference to the Appeals Council’s factual or legal determinations
underlying the refusal. Therefore, Woods’s suggestion that the Appeals Council
should be required, as an additional matter of law, to provide a detailed explanation
for its refusal makes little practical sense. Cf. Caulder v. Bowen, 791 F.2d 872, 877
(11th Cir. 1986) (“This court has held that when determining whether to remand a
case to the Secretary for consideration of new evidence, the mere statement by the
Secretary that the new evidence would not ultimately change the decision cannot be
accorded any weight since the statement concerning the materiality of the evidence
not in the certified administrative record is advisory at best. (citing Cherry v.
Heckler, 760 F.2d 1186, 1194 (11th Cir. 1985)).

that she “want[ed] to proceed with a “decompression and stabilization” operation.
(R. 531). Three days later, Dr. Volkman issued “Routine Surgery Orders” for an
“ACDF C4-5, 5-6, C-ARM” procedure. (R. 529). Thus, mere evidence that Woods
actually went through with the surgery was cumulative and therefore not “new”
evidence the Appeals Council was required to consider. Washington, 806 F.3d at
1321 n.6 (“[C]umulative evidence is not new…” (citing Caulder v. Bowen, 791 F.2d
872, 877 (11th Cir.1986)). Accordingly, the Appeals Council did not err in declining
to consider it, and the Court OVERRULES Woods’s assignment of error regarding
the evidence presented to the Appeals Council.
B.

Mental Impairments

Woods also claims that the ALJ reversibly erred in failing to include any
mental limitations in the RFC, asserting that the ALJ would have limited Woods to
no more than unskilled work if she had properly considered evidence regarding the
severity of Woods’s mental impairments, thus preventing Woods from performing
the two past jobs the ALJ found she could perform at Step Four.

Upon

consideration, the undersigned finds that the ALJ failed to adequately explain how
she accounted for Woods’s mental impairments at Step Four.
At Step Two, the ALJ determined that Woods had the “medically
determinable mental impairments of depression and anxiety,” but that those
impairments were “non-severe” because, “considered singly and in combination,
[they] do not cause more than minimal limitation in [Woods]’s ability to perform
basic mental work activities…” (R. 15). In making this determination, the ALJ

weighed the medical opinions of consultative examining psychologist Dr. Pamela
Starkey and non-examining state agency reviewing physician Dr. Robert Estock,
giving more weight to Dr. Starkey’s opinion assessing only mild mental limitations
because it was “most consistent with the record as a whole.” (R. 16).10 The ALJ
then performed the “special technique” for evaluating the severity of mental
impairments set out in 20 C.F.R. § 404.1520a, known as the Psychiatric Review
Technique (“PRTF” or “PRT”), assessing mild limitations in all four functional areas
of the technique. See (R. 16 – 17); Moore, 405 F.3d at 1213 (“Agency regulations
require the ALJ to use the ‘special technique’ dictated by the PRTF for evaluating
mental impairments. 20 C.F.R. § 404.1520a-(a). This technique requires separate
evaluations on a four-point scale of how the claimant's mental impairment impacts
four functional areas: ‘activities of daily living; social functioning; concentration,

The undersigned disagrees with Woods that the ALJ committed reversible error
in giving little weight to the part of Dr. Estock’s opinion assessing moderate
limitations in concentration, persistence, or pace, and in giving greater weight to
Dr. Starkey’s opinion. An ALJ is not required to afford special deference to the
opinions of non-treating physicians such as Dr. Estock, see McSwain v. Bowen, 814
F.2d 617, 619 (11th Cir. 1987) (per curiam), and an “ALJ may reject any medical
opinion if the evidence supports a contrary finding.” Sharfarz v. Bowen, 825 F.2d
278, 280 (11th Cir. 1987) (per curiam). As the ALJ noted, Dr. Estock’s opinion was
inconsistent with Dr. Starkey’s assessment of only mild limitations; generally, “[t]he
opinions of nonexamining, reviewing physicians,…when contrary to those of the
examining physicians, are entitled to little weight…” Id. Contrary to Woods’s
assertion that “the ALJ’s decision does not point to any specific medical evidence
that contradicts the findings and opinions of Dr. Estock” (Doc. 11 at 14), the ALJ
also cited evidence of Woods’s denials of “depression and anxiety on multiple
occasions to her treating physicians[,]” and noted that she “receives minimal
conservative treatment” for those impairments. (R. 16). Accordingly, the ALJ
sufficiently stated the weight given to Dr. Estock’s opinion and the reasons
therefore, see Winschel, 631 F.3d at 1179, and substantial evidence supports that
decision.
10

persistence, or pace; and episodes of decompensation.’ 20 C.F.R. § 404.1520a–(c)(3–
4).”).
The Social Security regulations make clear that the PRT is used to evaluate
whether mental impairments are “severe.” See 20 C.F.R. § 404.1520a(d) (“After we
rate the degree of functional limitation resulting from your impairment(s), we will
determine the severity of your mental impairment(s).”). However, “[a]t step three
the ALJ must determine if the applicant has a severe impairment or a combination
of impairments, whether severe or not, that qualify as a disability. The ALJ must
consider the applicant's medical condition taken as a whole.” Jamison v. Bowen,
814 F.2d 585, 588 (11th Cir. 1987). 11

“Likewise, the ALJ must consider the

applicant’s entire medical condition in determining whether the applicant can
return to her past work (step four), and if not, whether the applicant can perform
other work available in the national economy (step five).” Jamison, 814 F.2d at 588.
See also 20 C.F.R. § 404.1545(a)(2) (in assessing an RFC, the ALJ must “consider all
of [a claimant’s] medically determinable impairments of which [the ALJ is] aware,
including…medically determinable impairments that are not ‘severe’ ”). As the ALJ
herself noted, the PRT is “not a residual functional capacity assessment[, and t]he

At Step Three, the ALJ stated that Woods “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1…” (R. 18). The
ALJ also stated that, in making this finding, she had “given consideration” to, inter
alia, “listing…12.04, and 12.00 et seq.,” which are relevant listings for mental
disorders. Under this Circuit’s precedent, that was sufficient to show that the ALJ
had considered Woods’s medically determinable mental impairments at Step Three.
See Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002) (per curiam).
11

mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by itemizing
various functions contained in the broad categories found in paragraph B of the
adult mental disorders listings in 12.00 of the Listing of Impairments…” (R. 17
(citing Social Security Ruling 96-8p)).

Nevertheless, the ALJ immediately

thereafter appeared to contradict her own observation and equate the PRT with a
mental RFC assessment by stating: “Therefore, the following residual functional
capacity assessment reflects the degree of limitation the undersigned has found in
the []mental function analysis.” (Id.).
As Woods correctly notes, the RFC contains no mental limitations on Woods’s
ability “to perform light work as defined in 20 CFR 404.1567(b).”12 The ALJ made
no further mention of the opinions of Dr. Starkey or Dr. Estock after Step Two, nor
did she discuss any other evidence of Woods’s mental impairments at Step Four.
While the ALJ indicated at Step Two that the record evidence was indicative of only
“mild” mental limitations, she made no attempt to explain how these mild
limitations factored into the RFC at Step Four. Indeed, the only time the ALJ even
mentioned Woods’s medically determinable mental impairments of anxiety and

The regulation’s definition of “light work” itself imposes no mental limitations. 20
C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds. Even 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. To be considered capable of performing a
full or wide range of light work, you must have the ability to do substantially all of
these activities.”).
12

depression at Step Four was in noting, while considering Woods’s subjective
testimony, that she was taking medication for these impairments and that they
“were related to her digestive symptoms, flatulence, and the embarrassment it
causes…” (R. 20).13
As such, the Court is “unable from the ALJ’s opinion in this case to determine
if at [Step Four s]he considered [Woods]’s entire medical condition.” Jamison, 814
F.2d at 588. As the Eleventh Circuit has explained:
Where we cannot determine from the ALJ’s opinion whether the ALJ
applied the statutory requirements and the [Commissioner]’s
regulations as construed by this circuit, we cannot effectively perform
our duty to ensure that the proper regulatory requirements were in
fact applied. We do not require that ALJs necessarily cite to particular
regulations or cases; nor do we require the use of particular phrases or
formulations. But in order to make our review meaningful, we must be
able to determine what statutory and regulatory requirements the ALJ
did in fact apply—where we cannot do that we must vacate and require
a remand to the [Commissioner] for clarification.
Id. at 588-89.
Accordingly, the Court SUSTAINS Woods’s claim that the ALJ reversibly
erred in her consideration of Woods’s mental impairments, and finds that the
Commissioner’s final decision denying Woods a period of disability and DIB is due
The Eleventh Circuit has recognized that, “[t]hough the PRT and RFC
evaluations are undeniably distinct, nothing precludes the ALJ from considering
the results of the former in his determination of the latter.” Winschel, 631 F.3d at
1180 (citations omitted) (citing Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.
2004) (“While [Social Security Ruling] 96–8p does state that the [PRT] findings are
‘not an RFC assessment’ and that step four requires a ‘more detailed assessment,’ it
does not follow that the findings on the [PRT] play no role in steps four and five,
and [Social Security Ruling] 96–8p contains no such prohibition.”)). Here, however,
the ALJ’s reasoning indicates that she used the PRT as a substitute for a mental
RFC assessment, rather than simply considering its results as part of the overall
RFC assessment.
13

to be REVERSED and REMANDED to the Commissioner under sentence four of §
405(g) for further administrative proceedings consistent with this decision.14
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision denying Woods’s application for a period of disability
and DIB filed April 16, 2015, is REVERSED and REMANDED under sentence
four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further
proceedings consistent with this decision. This remand under sentence four of §
405(g) makes Woods a prevailing party for purposes of the Equal Access to Justice
Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates
this Court’s jurisdiction over this matter.
Under Federal Rule of Civil Procedure 54(d)(2)(B), should Woods be awarded
Social Security benefits on the subject application following this remand, the Court
hereby grants Woods’s counsel an extension of time in which to file a motion for fees
under 42 U.S.C. § 406(b) until thirty days after the date of receipt of a notice of
award of benefits from the SSA.15 Consistent with 20 C.F.R. § 422.210(c), “the date

The undersigned has also considered Woods’s other two assignments of error –
that the ALJ “erred in failing to develop the record by obtaining better information
regarding the extent of Ms. Wood’s visual impairment,” and by finding her
subjective testimony of pain to be not entirely credibly – but declines to address
them in light of the remand already being ordered on the grounds discussed. In
ordering remand for further proceedings, the undersigned expresses no opinion on
how Woods’s mental impairments should ultimately factor into the RFC.
14

See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per
curiam) (“Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim.”); Blitch
v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam) (unpublished) (“In
15

of receipt of notice … shall be presumed to be 5 days after the date of such notice,
unless there is a reasonable showing to the contrary.” If multiple award notices are
issued, the time for filing a § 406(b) fee motion shall run from the date of receipt of
the latest-dated notice.
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 11th day of October 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best
practice for avoiding confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B)
into the procedural framework of a fee award under 42 U.S.C. § 406 is for a plaintiff
to request and the district court to include in the remand judgment a statement
that attorneys fees may be applied for within a specified time after the
determination of the plaintiff's past due benefits by the Commission. 454 F.3d at
1278 n.2.”).