Tate v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER that the Secretary's decision be AFFIRMED and that this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 8/27/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BRAND TATE,

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:
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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 15-0139-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling denying claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 14).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order judgment in accordance with 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73 (see Doc. 19).
waived in this action (Doc. 20).

Oral argument was

After considering the

administrative record and the memoranda of the parties, it is
ORDERED that the decision of the Commissioner be AFFIRMED and
that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and

1

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial

evidence requires “that the decision under review be supported
by evidence sufficient to justify a reasoning mind in accepting
it; it is more than a scintilla, but less than a preponderance.”
Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting
Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
thirty-six years old, had completed a high school education (Tr.
200), and had previous work experience as a garbage collection
driver and embroidery machine operator (Tr. 217).

Plaintiff

alleges disability due to chronic back pain with a bulging disc
at L5-S1, chronic neck pain, bilateral shoulder pain,
hypertension, obesity, major depressive disorder, severe with
psychosis, anxiety, right knee pain, obstructive sleep apnea,
and bilateral carpal tunnel syndrome (Doc. 13).
The Plaintiff applied for disability benefits and SSI on
May 7, 2012, asserting disability as of April 28, 2012 (Tr. 250;
335-44).

An Administrative Law Judge (ALJ) denied benefits,

determining that although she could not perform her past
relevant work, Tate could perform specified sedentary work (Tr.
250-67).

Plaintiff requested review of the hearing decision

(Tr. 188-90), but the Appeals Council denied it (Tr. 24-29).

2

Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Tate alleges

(1) The ALJ’s residual functional capacity (hereinafter

RFC) determination is unsupported by the evidence; and (2) the
Appeals Council did not properly review newly-submitted evidence
(Doc. 14).

Defendant has responded to—and denies—these claims

(Doc. 15).

A summary of the relevant record evidence follows.1

On February 1, 2012, Dr. Alex K. Curtis examined Plaintiff
for an upper respiratory infection and hypertension; she was in
no acute distress and did not appear uncomfortable (Tr. 463-66;
see generally Tr. 455-73).

Her weight was 208 pounds with a

Body Mass Index (hereinafter BMI) of 33.6, making her moderately
obese.2
On March 6, 2012, Dr. Bryan S. Givhan, a Neurological
Surgeon, examined Tate for back and neck injuries caused by a
motor vehicle accident three months earlier (Tr. 477-78; see
generally Tr. 475-94).

Cervical and thoracic spine MRI’s were

normal, but the lumbar scan showed a mild bulging disc at L5-S1;
she had had physical therapy (hereinafter PT) and been released
back to work, left that job because of pain, and found light
work elsewhere.

Givhan noted neck pain, radiating to the right

1The Court finds it unnecessary to summarize medical evidence

pre-dating Tate’s asserted onset date of April 28, 2012 by a long
period. Likewise, evidence not relating to the claims raised herein
will go unreported.

2 http://www.bestbmicalculator.com/33.6/

3

shoulder area, but not into the low back; it was not associated
with weakness or numbness in Tate’s arms or legs.

Motor exam

was 5/5 in all muscle groups; she had normal station and gate.
Plaintiff had full range of motion (hereinafter ROM) in her neck
with no praraspinal spasm but complaints of pain.

The Doctor

offered more PT and limited her to thirty-pound floor-to-waist
and waist-to-shoulder lifting; Plaintiff was to continue taking
Ibuprofen and Tramadol3 along with Neurontin4 and Baclofen.5
The Therapist noted that Tate rated her average pain as five on
a ten-point scale and stated it radiated into her thoracic
spine, interfering with sleep (Tr. 488-93).

The Therapist noted

PT had improved her cervical ROM and strength to within normal
limits over a two-week period though she was still experiencing
pain in her lower back (Tr. 482).

On March 27, 2012, Dr. Givhan

could not explain why Plaintiff was experiencing her worsening
pain; he recommended that she return to work.

The Doctor would

not provide “any long term impairment or other treatment for her
chronic pain syndrome” (Tr. 476).
On April 12, 2012, Tate complained of neck pain and

3Tramadol “is indicated for the management of moderate to

moderately severe chronic pain in adults who require around-the-clock
treatment of their pain for an extended period of time.” Error! Main
Document Only.Physician's Desk Reference 2520 (66th ed. 2012).
4Error!
 Main
 Document
 Only.Neurontin is used in the treatment of

partial seizures.
Physician's Desk Reference 2110-13 (52nd ed. 1998).
5Baclofen is a muscle relaxer used in treating muscle symptoms

caused by multiple sclerosis, including spasm, pain, and stiffness.
See http://www.drugs.com/baclofen.html

4

stiffness, back, tailbone, and right shoulder pain, and joint
pain in the knees, elbows, hands, and wrists (Tr. 455-57).

Dr.

Curtis noted tenderness on palpation in the cervical and
thoracolumbar spine and diagnosed lumbago.
On April 19, 2012, at Tate’s request, Dr. Givhan ordered a
cervical epidural block (Tr. 475).

At an examination by Dr.

Wesley L. Spruill at the SpineCare Center eleven days later,
Plaintiff rated her pain as averaging three and at four at its
most intense; she had no complaints of tingling, numbness, or
weakness (Tr. 503; see generally 501-08).

Spruill gave her the

block.
On May 11, 2012, Plaintiff went to Physicians Care of
Thomasville complaining of back pain, radiating from her upper
back down into the lower back; she reported that an epidural had
helped for only a week and that Dr. Curtis had prescribed her
Lortab6 (Tr. 513-14).

Tate complained of no other pain and no

numbness in the legs; though she appeared uncomfortable, she was
in no acute distress.

Plaintiff had back tenderness and muscle

spasm; straight-leg raising was limited by stiffness
bilaterally.

The exam was normal otherwise; Flexeril7 and

6Error! Main Document Only.Lortab is a semisynthetic narcotic

analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).
7Error!
 Main
 Document
 Only.Flexeril is used along with “rest and

physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 1455-

5

Celebrex8 were prescribed.
On May 22, 2012, Dr. Judy Travis examined Tate who
complained of knee, back, and neck pain for which she was
prescribed Lortab and Celebrex; Plaintiff saw the Doctor four
more times through August 3 for prescription refills (Tr. 61012).
On September 17, Dr. Lee Loftin, at Tuscaloosa Ear Nose and
Throat, examined Tate for complaints of daily throat burning and
discomfort, lasting all day; her previous medications included
Demerol9 (Tr. 601-07).

Several months earlier, Plaintiff had

begun experiencing sinus problems and sleep apnea every night of
moderate difficulty, causing headaches, sleepiness and fatigue;
she weighed 210 pounds with a BMI of 36.18, making her morbidly
obese.10

Lofton noted no abnormalities in Tate’s eyes, head and

face, eyes, ears, hearing, neck, extremities, or her lymphatic,
neurologic, pulmonary, or cardiovascular systems; she was
oriented in three spheres with no depression, anxiety, or
agitation.

The Doctor found a deviated nasal septum, turbinate

hypertrophy, obstructive sleep apnea, and tonsillitis; he

57 (48th ed. 1994).

8Error!
 Main
 Document
 Only.Celebrex

is used to relieve the signs and
symptoms of osteo-arthritis, rheumatoid arthritis in adults, and for
the management of acute pain in adults. Physician's Desk Reference
2585-89 (58th ed. 2004).
9Error!
 Main
 Document
 Only.Demerol is a narcotic analgesic used for

the relief of moderate to severe pain. Physician's Desk Reference
2570-72 (52nd ed. 1998).
10
 http://www.bestbmicalculator.com/obesity/

6

encouraged her to quit smoking.

On October 29, Tate underwent a

polysomnogram that indicated obstructive sleep apnea (Tr. 608).
On November 9, 2012, West Alabama Mental Health records
report Tate’s complaints of severe, chronic anxiety and
depression with moderately auditory and visual hallucinations;
her appearance, psychomotor activity, speech, mood, impulse
control, thought process and content, and appetite were within
normal limits (Tr. 591-99).

Plaintiff denied suicidal or

violent thoughts; Dr. Anne Srilata diagnosed her to have
recurrent, severe, major depressive disorder with psychotic
features.

On December 4, Tate reported being unable to relax as

well as increased anxiety, restlessness, and paranoid ideation
(Tr. 589-90); on January 7 and February 15, 2013, she reported
minimal progress in her treatment plan (Tr. 585-88).
On January 17, 2013, Dr. Kevin D. Thompson, with the
University Orthopaedic Clinic & Spine Center, examined Plaintiff
for complaints of right knee stiffness and pain that she rated
as five on a ten-point scale (Tr. 614-19).11

Thompson found Tate

in no apparent distress, oriented in three spheres, with normal
motor, reflexes and sensory response; her gait was normal.

The

Doctor’s impression was right joint pain, right deranged post
medial meniscus, right old anterior cruciate ligament (non

11The Court notes this evidence was submitted to and admitted by

the Appeals Council but was not considered by the ALJ (Tr. 28, 271).

7

traumatic), and right medical cruciate ligament.

On January 25,

2013, Plaintiff underwent, among other things, right knee ACL
reconstruction and medial meniscal repair surgery (Tr. 633-37).
On February 7, following surgery, Tate rated her pain as threeto-four of ten and denied neurological complaints; she could
perform a straight leg raise and had ROM of zero-to-ninety
degrees with no calf swelling or tenderness (Tr. 620-21).

On

March 7, Plaintiff’s pain was down to two-to-three; she was
doing well, without complaints (Tr. 622-23).

On April 18, Tate

was feeling better with her pain rated as one-to-two; she had
had no instability or swelling (Tr. 624-25).
and full strength.

She had full ROM

On May 30, Plaintiff’s right knee pain was

rated as one; she was released to engage in activities as
tolerated, but Thompson stressed that she needed to continue
doing strength, endurance, and agility training for at least a
year (Tr. 626-27).
From March 13 through May 29, 2013, Tate underwent physical
therapy, at Bryan W. Whitfield Hospital, achieving full ROM in
her lower extremities (Tr. 534-78).
On April 5, 2013, records from West Alabama Mental Health
report that Plaintiff was doing better with her depression and
anxiety management; her thoughts were within normal limits, her

8

judgment was adequate, but her insight was poor (Tr. 674-75).12
A month later, only minimal progress was made; she reported pain
and insomnia (Tr. 672-73).

On July 2, 2013, moderate progress

was made on her treatment plan goals though she reported
increased visual hallucinations and staying awake to avoid them
(Tr. 665-70).

On July 26, there was moderate progress in all

phases of Tate’s treatment plan goals; judgment and insight were
considered adequate (Tr. 663-64).

On August 23, there was only

minimal progress; Plaintiff complained that she was not getting
enough sleep and that her family did not give her enough space
(Tr. 656-61).

On September 27, the Psychiatrist noted Tate’s

depression of one year and various drug treatments (Tr. 65054).13
On May 6, 2013, Dr. Arturo Otero performed a nerve
conduction test that revealed the following:

(1) right median

nerve entrapment neuropathy at the carpal tunnel area and
sensory and motor involvement; and (2) mild to moderate left
median nerve entrapment neuropathy at the carpal tunnel area
with sensory involvement only (Tr. 580-83).

The bilateral upper

extremities were otherwise normal.
On May 20, Dr. Stephen J. Robidoux examined Tate who was

12The Court notes this evidence was submitted to and admitted by

the Appeals Council but was not considered by the ALJ (Tr. 28, 271).

13The Court notes, frankly, that these notes are indecipherable;

however, Tate references them nowhere in her brief (see Doc. 14).

9

taking Lortab, Indocin,14 Zoloft,15 Lorazepam,16 and sleep apnea
and hypertension medications (Tr. 527-32).

The Doctor noted

repeatedly that Tate was vague about her medical and social
history but he reviewed that which had been provided by the
Social Security Administration.

Robidoux noted she weighed 208

pounds, standing five foot, four; she was in no acute distress
and had normal, unaided gait though she used a cane and back
brace—neither prescribed.

Tate’s neck was supple with full ROM

with no muscle spasm or tenderness; ROM was normal in her back
and in all extremities with no tenderness.

The Doctor noted

assertions of inability to stand a particular way, though she
did so without discomfort during other parts of the examination;
he found her neck and knee both normal.

Robidoux noted that

there were no limitations in sitting, standing, walking,
carrying, handling objects, using hand and/or foot controls,
talking, listening, travel, or driving (Tr. 532).

The Doctor

completed a physical capacities evaluation (hereinafter PCE)

14Error!
 Main
 Document
 Only.Indocin is a non-steroidal drug found to

be effective in the treatment of moderate to severe rheumatoid
arthritis, moderate to severe ankylosing spondylitis, moderate to
severe osteoarthritis, acute painful shoulder (bursitis and/or
tendinitis), and acute gouty arthritis. Physician's Desk Reference
1676 (52nd ed. 1998).
15Error!
 Main
 Document
 Only.Zoloft is “indicated for the treatment of

depression.” Physician's Desk Reference 2229-34 (52nd ed. 1998).
16Error!
 Main
 Document
 Only.“Ativan (lorazepam) is indicated for the

management of anxiety disorders or for the short-term relief of the
symptoms of anxiety or anxiety associated with depressive symptoms.”
Its use is not recommended “in patients with a primary depressive
disorder or psychosis.” Physician's Desk Reference 2516-17 (48th ed.
1994).

10

indicating that she could lift and carry up to twenty pounds
continuously; she could sit eight hours at a time and walk or
stand four hours at a time and seven hours out of an eight-hour
day (Tr. 521-26).

Tate could continuously reach, handle,

finger, feel, push/pull, balance, and use foot controls
bilaterally; Robidoux gave no opinion on her ability to climb
stairs, ramps, ladders, or scaffolds, stoop, kneel, crouch, or
crawl because of recent knee surgery.

Tate had no environmental

work limitations; the Doctor only limited her from squatting,
again because of her knee, but indicated that it was only
temporary.
On June 5, 2013, Dr. Travis treated Plaintiff for a
headache and sinus issues (Tr. 677-80).17

On September 6, Tate

complained of low back, left shoulder, and right knee pain;
Travis noted that she was in no acute distress and had full ROM
throughout except for her left shoulder/arm with no muscle
atrophy or tenderness for which she was given an injection (Tr.
681-84).

On September 18, Plaintiff appeared for a headache

(Tr. 685-87).

On September 30, Tate was seen in a follow up

examination for lab work; no complaints were registered (Tr.
688-89).
This concludes the relevant evidence of record.

17The Court notes this evidence was submitted to and admitted by

the Appeals Council but was not considered by the ALJ (Tr. 28, 271).

11

In bringing this action, Tate first claims that the ALJ’s
RFC determination is unsupported by the evidence (Doc. 14, pp.
2-5).

The Court notes that the ALJ is responsible for

determining a claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

That decision can not be based on “sit and squirm”
jurisprudence.
1984).

Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.

However, the Court also notes that the social security

regulations state that Plaintiff is responsible for providing
evidence from which the ALJ can make an RFC determination.

20

C.F.R. § 404.1545(a)(3).
The ALJ’s RFC determination was as follows:
[T]he claimant has the residual functional
capacity to perform sedentary work as
defined in 20 C.F.R. 404.1567(a)18 and
416.967(a) with the exceptions noted herein:
The claimant can occasionally lift and/or
carry 10 pounds and frequently lift and/or
carry less than 10 pounds. The claimant can
stand and/or walk at least 2 hours in an 8hour workday and must periodically alternate
sitting and standing to relieve pain or
discomfort. The claimant can frequently use
her left upper extremity for pushing and/or
pulling. The claimant can occasionally
climb ramps and stairs. The claimant cannot
climb ladders, ropes or scaffolds. The
claimant can frequently balance,
occasionally stoop and crouch. The claimant

18Error!
 Main
 Document
 Only.“Sedentary work involves lifting no more

than 10 pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools. Although a sedentary job
is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. § 404.1567(a) (2014).

12

cannot kneel or crawl. The claimant can
frequently reach in all directions including
overhead. The claimant can frequently use
her left upper extremity for handling and
fingering. The claimant should avoid
concentrated exposure to extreme cold,
extreme heat, wetness, humidity, vibration,
fumes, odors, dust, gases and poor
ventilation. The claimant should avoid all
exposure to hazardous machinery and
unprotected heights. The claimant can
interact appropriately with supervisors but
this should be casual and non-confrontational. The claimant can interact appropriately with co-workers but this should be casual
and non-confrontational. The claimant can
interact appropriately to customers/general
public but this should be casual and nonconfrontational. The claimant can respond
appropriately to work pressures in a usual
work setting. The claimant can respond
appropriately to changes in a routine work
setting but changes should be infrequent and
gradually introduced. The claimant can use
judgment in simple one and two-step work
related decisions. The claimant can
occasionally use judgment in detailed or
complex work related decisions. The
claimant can understand, remember and carry
out simple one and two-step instructions.
The claimant can occasionally understand,
remember and carry out detailed or complex
instructions.
(Tr. 255).
With regard to her RFC claim, Tate asserts that the ALJ did
not properly consider the combined effects of all of her
impairments (Doc. 14, p. 3).

It is true that "the Secretary

shall consider the combined effect of all of the individual's
impairments without regard to whether any such impairment, if

13

considered separately, would be of such severity."
423(d)(2)(C).

42 U.S.C. §

The Eleventh Circuit Court of Appeals has noted

this instruction and further found that "[i]t is the duty of the
administrative law judge to make specific and well-articulated
findings as to the effect of the combination of impairments and
to decide whether the combined impairments cause the claimant to
be disabled."

Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.

1984); see also Reeves v. Heckler, 734 F.2d 519 (11th Cir.
1984); Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
In the ALJ's findings, he lists Plaintiff's impairments and
concludes by saying that she “does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Regulations No. 4" (Tr. 253).

This language has been

upheld by the Eleventh Circuit Court of Appeals as sufficient
consideration of the effects of the combinations of a claimant's
impairments.

Jones v. Department of Health and Human Services,

941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant does not have
“an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4").

Though this generally ends the discussion

of Tate’s claim regarding the combination of her impairments,
the Court will continue with Tate’s more specific assertions.
Plaintiff goes on to assert that the ALJ did not consider

14

problems with anxiety, her right upper extremity, and her morbid
obesity in determining her RFC (Doc. 14, pp. 3-6).

The evidence

shows that Dr. Otero, after conducting nerve conduction tests,
found right median entrapment neuropathy at the carpal tunnel
area, sensory and motor involvement (Tr. 580).

Though Plaintiff

asserts that the ALJ’s decision is silent as to this finding,
the RFC clearly found that Tate “can frequently use her left
upper extremity for handling and fingering” (Tr. 255).

By not

finding that Tate could use her right arm for the same behavior,
he demonstrated his consideration of the impairment.

This

consideration is also manifest in his questioning of the
vocational expert (Tr. 218) (“Manipulative limitations, reaching
to include overhead, frequent bilateral, handling, fingering
left only”).
Plaintiff also asserts that the ALJ failed to consider her
asthma, citing a single reference to chronic anxiety in medical
records provided by West Alabama Mental Health on November 9,
2012 (Doc. 14, p. 4; see Tr. 591).

The Court notes, though,

that the reference cited was self-reported by Plaintiff to the
medical source; the Court finds no corresponding diagnosis by
that source (see Tr. 597-98).

The Court further notes that

other medical evidence, within a close range of time, shows no
finding of anxiety (see Tr. 610-12 (no mention of anxiety on May
22, 2012); Tr. 605 (“no depression, no anxiety, no agitation” on

15

September 17, 2012); and Tr. 527-32 (though Tate asserts
anxiety, no diagnosis regarding it was made on May 20, 2013)).
In spite of Plaintiff’s failure to point to medical
evidence supporting a diagnosis of anxiety, the Court notes that
the ALJ included the following restrictions in his RFC
determination:
The claimant can interact appropriately with
supervisors but this should be casual and
non-confrontational. The claimant can
interact appropriately with co-workers but
this should be casual and non-confrontational. The claimant can interact appropriately to customers/general public but this
should be casual and non-confrontational.
The claimant can respond appropriately to
work pressures in a usual work setting. The
claimant can respond appropriately to
changes in a routine work setting but
changes should be infrequent and gradually
introduced. The claimant can use judgment
in simple one and two-step work related
decisions. The claimant can occasionally
use judgment in detailed or complex work
related decisions. The claimant can
understand, remember and carry out simple
one and two-step instructions. The claimant
can occasionally understand, remember and
carry out detailed or complex instructions.
(Tr. 255).

These limitations clearly indicate an accommodation

to Tate’s assertions of anxiety.
Plaintiff also asserts that the ALJ failed to consider her
morbid obesity in his RFC assessment (Doc. 14, pp. 5-6).

The

record shows that the ALJ specifically addressed her obesity,

16

citing Social Security Ruling 02-1p, in finding that “the
composite available medical evidence of record does not reveal
that this impairment has otherwise reduced the functional
limitations and restrictions” (Tr. 262).

In spite of her

assertion, Tate does not cite any medical opinion suggesting
that her obesity limits her in any way.

The Court notes that

the fact of Plaintiff’s obesity is insufficient, in and of
itself, to demonstrate any restrictions attributable thereto.
The Court has considered Tate’s various assertions related
to her claim that the ALJ’s RFC is not supported by the
evidence, but finds no merit in any of them.
Plaintiff’s final claim is that the Appeals Council did not
properly review newly-submitted evidence (Doc. 14, pp. 6-7).
The evidence shows that Tate submitted 183 pages of new evidence
to the Appeals Council (Tr. Index 1); while some of it was
admitted for consideration (see Tr. 28), the bulk of it was
denied as providing no basis for changing the ALJ’s decision
(Tr. 25).

The Court will review only that evidence specifically

cited by Plaintiff in her brief.
It should be noted that "[a] reviewing court is limited to
[the certified] record [of all of the evidence formally
considered by the Secretary] in examining the evidence."
v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry

However, “new

evidence first submitted to the Appeals Council is part of the

17

administrative record that goes to the district court for review
when the Appeals Council accepts the case for review as well as
when the Council denies review.”

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).

Under

Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed
to consider, if such a claim is made, whether the Appeals
Council properly considered the newly-submitted evidence in
light of the ALJ’s decision.

To make that determination, the

Court considers whether the claimant “establish[ed] that:

(1)

there is new, noncumulative evidence; (2) the evidence is
'material,' that is, relevant and probative so that there is a
reasonable possibility that it would change the administrative
result, and (3) there is good cause for the failure to submit
the evidence at the administrative level."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
Tate first points to a clinical assessment of pain and a
physical medical source statement, both dated October 27, 2014,
completed by Dr. Travis, her treating physician (Tr. 62-66).
The Appeals Council rejected both forms, finding that they, as
they were completed more than one year after the ALJ’s decision,
came too late (Tr. 25).

Plaintiff argues that the Doctor had

indicated that the information provided regarding Tate’s
abilities had been in effect for over a year (Doc. 14, p. 7; cf.

18

Tr. 66).

While Plaintiff’s argument is correct as to the

physical abilities form, no such assertion is made in the pain
form; therefore, it will not be considered herein as the Court
finds it irrelevant to the period of time under consideration.
In the medical source statement, Travis said that Plaintiff
could sit for one hour, and stand and walk, each, for ten
minutes at a time; she could sit for four hours and stand and
walk, each, for one hour during an eight-hour day (Tr. 64-66).
Tate could frequently lift and carry up to ten pounds and
twenty-five pounds occasionally.

Plaintiff could use her hands

for simple grasping continuously, pushing and pulling of arm
controls occasionally, and fine manipulation frequently; she
could use her feet for foot controls occasionally.

Travis

indicated that Plaintiff was able to stoop, crouch, kneel,
crawl, climb, and balance occasionally, but could continuously
reach overhead.
In comparing Dr. Travis’s proposed limitations for Tate
with the ALJ’s RFC determination, the Court finds little
substantive difference.

They both agreed that she could stand

and walk, each, for one hour a workday; while the Doctor limited
Plaintiff to sitting for only four hours, the ALJ determined
that six hours was the correct amount.

Although Travis found

Plaintiff able to balance only occasionally, the ALJ indicated
this ability could be performed frequently.

19

The Court finds no error in rejecting Travis’s submitted
physical abilities form, noting that her medical records provide
no support for any of her conclusions as her medical records
provide no evidence of such limitations (see Tr. 610-12, 67780).

Furthermore, the reports of Drs. Givhan (Tr. 475-94),

Thompson (Tr. 614-44), and Robidoux (Tr. 527-32) fully support
the ALJ’s RFC determination.
Tate has also argued that the Appeals Council improperly
rejected the evidence submitted by Dr. Thompson at the
University Orthopedic Clinic from November 21, 2013 as it rebuts
assumptions made by Dr. Robidoux and adopted by the ALJ (Doc.
14, p. 7; cf. Tr. 163-66).

The Court notes that, in that

report, Dr. Thompson noted Plaintiff was doing well overall, had
no complaints of instability, but did have complaints of
constant, dull left knee pain (Tr. 163).

However, the record

indicates that Tate’s previous complaints involved her right
knee—not the left one being discussed in these records; in fact,
the Court found no evidence of left knee problems in the record
before this note.

In any event, x-rays showed “very mild

degenerative changes” (Tr. 165); the exam demonstrated normal,
painful, active ROM.

The Court finds substantial support for

the Appeals Council’s decision that this evidence would not have
changed the ALJ’s decision.

Plaintiff’s claim otherwise is

without merit.

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Tate has raised two different claims in bringing this
action.

Both are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 27th day of August, 2015.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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