Zanders v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be affirmed. Signed by Magistrate Judge P. Bradley Murray on 8/28/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TANYA M. ZANDERS,

:

Plaintiff,

:

vs.

:

CA 16-0542-MU

NANCY A. BERRYHILL,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her claims for a period of disability, disability insurance benefits, and
supplemental security income. The parties have consented to the exercise of jurisdiction
by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this
Court. (Doc. 21 (“In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P.
73, the parties in this case consent to have a United States magistrate judge conduct
any and all proceedings in this case, . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”); see also Doc. 23 (endorsed order of
reference)). Upon consideration of the administrative record, Plaintiff’s brief, and the

Commissioner’s brief,1 it is determined that the Commissioner’s decision denying
benefits should be affirmed.2
I. Procedural Background
Plaintiff filed an application for a period of disability and disability insurance
benefits on November 6, 2012 and protectively filed an application for supplemental
security income benefits on November 27, 2012, both applications alleging disability
beginning on May 30, 2009. (See Tr. 288-300.) Zanders’ claims were initially denied on
February 21, 2013 (Tr. 145-46 & 178-82) and, following Plaintiff’s electronic request for
a hearing before an Administrative Law Judge (“ALJ”) (see Tr. 183-84), a hearing was
conducted before an ALJ on February 9, 2015 (Tr. 112-32). During the hearing, Zanders
amended her disability onset date to November 5, 2012. (Compare Tr. 115 with Tr. 95
(“During the hearing, the claimant amended her alleged onset date of disability to
November 5, 2012. This motion is granted.”)). On March 11, 2015, the ALJ issued a
decision finding that the claimant was not disabled and, therefore, not entitled to any
social security benefits. (Tr. 95-106). More specifically, the ALJ concluded that Zanders
retains the residual functional capacity to perform a limited range of light work and,
further, that in light of her residual functional capacity, she can perform her past relevant
work as a fusing machine tender and a hand packager. (See id. at 100-04; compare id.
with Tr. 129-30 (vocational expert’s hearing testimony that based on the hypothetical
1

The parties waived oral argument. (Compare Doc. 20 with Doc. 22.)

2

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 21 (“An appeal from a judgment
entered by a magistrate judge shall be taken directly to the United States court of appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”)).

2

posed, consistent with the ALJ’s ultimate RFC determination, the claimant would be
capable of performing her past relevant work as a fuser and hand packager)). On May
7, 2015, the Plaintiff appealed the ALJ’s unfavorable decision to the Appeals Council
(Tr. 89-91) and, the Appeals Council denied Zanders’ request for review on August 30,
2016 (Tr. 1-4).3 Thus, the hearing decision became the final decision of the
Commissioner of Social Security.
Plaintiff alleges disability due to anxiety, depression, paranoia, obesity, high
blood pressure, headaches, back pain, hand pain, knee pain, foot pain, elbow pain, and
medication side effects. The ALJ made the following relevant findings:
1.
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2015.
2.
The claimant has not engaged in substantial gainful activity
since November 5, 2012, the amended onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).
3.
The claimant has the following severe impairments:
depression, anxiety, Raynaud’s syndrome, and obesity (20 CFR
404.1520(c) and 416.920(c)).
.

.

.

4.
The claimant 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 (20

3

In the course of its decision denying Zanders’ request for review, the Appeals
Council evaluated certain medical evidence supplied by Plaintiff in the following manner: “We
also looked at evidence from various sources. There is medical evidence, dated September 11,
2015 through February 25, 2016 received from West Alabama Mental Health Center (36 pages);
medical evidence, dated May 5, 2015 through February 18, 2016 received from University
Orthopaedic Clinic (34 pages); and medical evidence, dated February 26, 2016 received from
Travis Clinic (2 pages). The Administrative Law Judge decided your case through March 11,
2015. This new information is about a later time. Therefore, it does not affect the decision about
whether you were disabled beginning on or before March 11, 2015.” (Tr. 2.)

3

CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).
.

.

.

The severity of the claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the criteria of listings 12.04
and 12.06. In making this finding, the undersigned has considered
whether the “paragraph B” criteria are satisfied. To satisfy the “paragraph
B” criteria, the mental impairments must result in at least two of the
following: marked restriction of activities of daily living; marked difficulties
in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every four months, each lasting for at least
2 weeks.
In activities of daily living, the claimant has mild restriction. During the
psychological assessment under Dr. Tocci, the claimant had an
appropriate appearance. She also independently bathed and dressed
herself, feed herself, used the toilet, prepared meals, performed
household chores, cared for her children, drove a car, shopped in stores,
attended church, managed her own finances, read the Bible, and played
volleyball. Thus, the claimant demonstrated the mental ability to initiate,
sustain, and complete activities independent of direction or supervision.
While the claimant’s impairments may interfere with complex activities, the
claimant’s performance of a simple routine remained appropriate, effective
and sustainable.
In social functioning, the claimant has moderate difficulties. The claimant
demonstrated cooperative behavior, normal speech, good eye contact,
and responsive facial expressions during her assessment with Dr. Tocci,
even though her mood was “gloomy”. She also displayed a pleasant and
cooperative behavior during her assessments with Dr. Travis. The
claimant further interacted with her children, regularly attended church,
and shopped in stores. Thus, the undersigned determined she has
retained the ability to communicate clearly, demonstrate cooperative
behaviors, and sustain some social contact with others, based upon the
preponderance of the evidence.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant did incorrectly calculate change during
the examination with Dr. Tocci. However, her orientation,
concentration/attention, memory, fund of information, abstract thinking,
4

thought processes, and insight/judgment remained intact. She also
demonstrated having average intelligence. During treatment records, she
denied problems with attention and concentration. Therefore, given such
evidence, the undersigned determined the claimant could sustain the
focus, attention, and concentration necessary to permit the timely and
appropriate completion of tasks commonly found in routine and repetitive,
not detailed or complex, work settings.
As for the episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration. The
record revealed no extended psychiatric hospitalizations or frequent
altering of psychotropic medications during this period of adjudication.
Thus, there was no loss of adaptive functioning manifested by the
claimant’s inability to perform activities of daily living, maintain social
relationships, or maintain concentration, persistence, or pace. Therefore,
the undersigned determined the claimant has not had any episodes of
decompensation within one year, or an average of once every four
months, each lasting for at least 2 weeks, to support this functional
limitation.
The above finding[s] are supported by the opinion of the state agency
medical consultant, whose opinion is supported by the record and is
entitled to great weight.
.

.

.

The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
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. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
5.
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b). The claimant cannot climb ladders, ropes or scaffolds.
She cannot kneel, crouch or crawl. She should avoid all exposure to
cold, unprotected heights and hazardous machinery. The claimant
can perform simple, routine and repetitive tasks involving simple
work related decisions with few, if any, work place changes. She
should avoid all direct contact with the general public. Work can be
5

around co-workers but with only occasional interaction with coworkers.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p
and 96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—i.e.,
an impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques—that could reasonably be expected to
produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity,
persistence, and limiting effects of the claimant’s symptoms to determine
the extent to which they limit the claimant’s functioning. For this purpose,
whenever statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire case
record.
.

.

.

The claimant alleged back pain, Raynaud’s syndrome, and depression
have continued to affect her ability to work. She stated her constant and
severe (an 8 on a 10 point scale) back pain was the most limiting
impairment. She claimed the onset of her back pain occurred in 2009. She
reported a 3 to 4 year history of radiation of the pain into and numbness of
the left leg. In addition, the claimant testified that Raynaud’s syndrome has
affected both of her hands ramping[] pain and an inability to extend her
right ring finger; these symptoms have been present for the past 5 to 6
years. She also testified that she has problems with gripping things over
the last five to six months, along with an inability to open jars. The
claimant stated she has had an 8 to 9 year history of daily numbness in
her feet; she attributed this symptom [] to Raynaud’s syndrome.
Furthermore, the claimant testified that she has been depressed for [the]
last six to seven years. She stated her mental symptoms consisted of
social isolation, avoidance of public places, fear of driving, crying
6

episodes, hearing voices (for four to five years occurring three to four
times per week), and sleep difficulties (sleeping a total of four to five hours
per day). She stated her sleep problems stemmed from her physical
allegations and the need to check on her autistic son at night. The
claimant testified that she has taken medications for anxiety and
depression, and she admitted that these medications have helped her
symptoms “a lot.”
As to limitations, the claimant testified that she has been limited to lifting a
gallon of milk for the last four years. She also alleged she could only walk
15 minutes and sit 15 to 20 minutes.
The claimant testified that she lived in a trailer with her three children, the
youngest child being six years old. On a typical day, she testified to doing
the following activities: waking up, getting the kids up for school,
driving/dropping the kids off at school, going back home, cleaning the
kitchen and doing the dishes, reading the Bible for 10 to 15 minutes, and
crying while thinking upon things from her past. She claimed her sister did
her hair, because she experienced elbow pain. She reported her mother
and grandmother often prepared meals. She, however, admitted she
cooked chicken and rice on the Friday prior to the hearing. The claimant
testified that she shopped once per week (in the mornings to avoid
people), washed light dishes, and washed/ironed clothes. She claimed her
daughter primarily swept, mopped, and vacuumed. She alleged she last
swept/mopped one year ago (2014). The claimant testified that she
attended a two-hour church service every Sunday and Bible study on
Wednesdays, once or twice each month. The claimant also stated she
attended choir practice on a Saturday each month and sang in the choir
once per month. She reported she has attended the same church since
she was five or six years old, and she stated that she has felt confortable
around the church members.
At the outset, the claimant’s routine daily activities are consistent with the
residual functional capacity. The claimant admitted to living with and being
the primary caretaker of her minor children. She stated she prepared their
meals, provided them with clean clothes, played with them, and drove
them to school. She also performed light household chores, including
washing dishes, cleaning the kitchen, making the beds, washing clothes,
and cleaning the bathroom. She even admitted that she shopped in
stores, read the Bible, for 10 to 15 minutes, counted change, handled a
savings account, used a checkbook, played volleyball, walked, and
traveled. The claimant also socialized amongst others while attending twohour church services every Sunday and Bible study on[c]e or twice per
month. She further completed a disability form by understanding and
concentrating on each question and recalling situations before providing
7

the appropriate answers. Overall, these daily activities suggested the
claimant could sustain work within the realms of the residual functional
capacity. Thus, such evidence undermined the claimant’s assertion of not
being able to work entirely.
Pursuant to Social Security Ruling 02-1p, the undersigned did consider
the physical effects of obesity and its potential to contribute to
musculoskeletal, respiratory, and cardiovascular impairments. However,
the record reflected no[] significant deficits compromising the claimant’s
body systems or her ability to work. She weighed 178 pounds at 64 inches
with a body mass index of 30.55. Although the treating physician, Dr.
Travis, noted right elbow tenderness on examination, the claimant
maintained a full range of motion of all joints with good muscle mass
(bilaterally) and no signs of atrophy or deformities. Thus, such evidence
did not substantiate the claimant’s debilitating back pain radiating to her
left leg, in which Dr. Travis only prescribed a non-narcotic medication,
Tramadol, for pain relief. The claimant also did not provide testimony
regarding any knee complaints, and Dr. Travis’ examination did not
support this allegation either. The claimant’s heart had a regular rate and
rhythm, and her lungs remained clear to auscultation and percussion. The
record essentially reflected no evidence of residuals from hypertension,
including no stroke or any cardiovascular-related events. There were also
no recurring crises or advancing organ damage related to uncontrolled
blood pressure. In fact, the claimant’s hypertension warranted only
conservative treatment with medication. Hence, the record suggested
obesity has not eliminated the claimant’s ability to perform routine
movement and necessary physical activities within a light work
environment with the above-noted limitations addressed in the residual
functional capacity. Thus, the residual functional capacity stated herein
would accommodate the claimant’s obesity, in spite of her physical
allegations.
Given the claimant’s allegations of bilateral hand numbness, the record
reflected no clear interpretation of the electromyogram and nerve
conduction studies. Dr. Ubogu provided no summarization of his findings
to substantiate carpal tunnel syndrome or neuropathy occurring in the
claimant’s bilateral hands. Thus, there was essentially no evidence to
warrant manipulative limitations or signs of atrophy. In fact, Dr. Ubogu
noted the claimant had no neurological diagnosis. An examination
revealed negative Tinel’s sign and no sensory deficits [and] full range of
motion. Examinations have shown full range of motion of all joints, all
muscles functioning well and no atrophy. Thus, there is no medically
determinable impairment due to carpal tunnel syndrome or numbness of
the hands.

8

Although the claimant alleged she has exhibited crying spells, hearing
voices, self-isolation, anxiety, and a depressed mood, she testified to
having good outcomes with psychotropic medications. She stated her
medications have “helped a lot”. Treatment records support this testimony.
In November 2014, the claimant noted that she was less depressed and
less anxious and she was doing “OK” with medication. A mental status
examination by the claimant’s mental health counselor also reflects the
claimant’s appropriate appearance, adequate affect/mood, calm motor
activity, adequate judgment and insight, and normal thoughts with no
deficits in orientation or speech. There was also no evidence or mention of
any hallucinations during the examination. In fact, the claimant denied
having any psychological problems when she later visited Dr. Travis. She
also presented a pleasant and cooperative demeanor with good hygiene.
The above evidence implied the claimant’s medication regiment was
effective at controlling her mental symptoms. She has denied adverse
medication side effects during treatment. Thus, the mental limitations set
forth in the residual functional capacity would aid in the claimant’s
transition into the workforce. Such mental health success with medications
supported the claimant’s testimony.
The undersigned further considered the opinion evidence in accordance
with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p,
96-5p, 96-6p and 06-3p.
The undersigned [accorded] significant weight to the State agency’s
psychological consultant, Dr. Donald Hinton. He opined that the claimant’s
affective and anxiety disorders were severe. Thus, he concluded the
claimant’s functional limitations were as follows: mild restrictions in daily
activities; moderate difficulties in social functioning; moderate difficulties in
maintaining concentration, persistence, or pace; and no episodes of
decompensation, each of extended duration. He also opined that the
claimant could understand, remember, and carry out simple instructions;
interact with the general public as a form of routine contact, but not as a
part of usual job assignments. In support of Dr. Hinton’s opinions, the
claimant engaged in [a] wide range of daily activities[,] including caring for
minor children, handling her own finances, playing volleyball, preparing
meals, performing household chores, driving, attending church regularly,
and shopping in stores. Although she reported having social difficulty with
some family members, along with a tendency [to] isolate herself from
others, she remained pleasant and cooperative during her assessment
with Dr. Travis. The claimant’s mental health counselor also did not note
any deficits in the claimant’s speech, affect/mood, orientation, motor
activity, thoughts, insight, or judgment while she adhered to prescribed
treatment. There was further no evidence of inpatient psychiatric treatment
due to her alleged mental complaints. Hence, Dr. Hinton’s opinions were
consistent and supportive of the record presented at the hearing level.
9

Dr. Travis opined the claimant would be limited to less than sedentary
work with manipulative, postural and environmental limitations. Yet, she
did not state an objective basis to substantiate her conclusions. Dr. Travis’
own examination, on the same date she completed the medical source
statement, showed no [ab]normal findings with the exception of cold
fingers with cyanosis. Thus, there was essentially no deformities or
swelling. She had good muscle mass, full range of motion in all joints, and
no sign of atrophy. The claimant also engaged in various daily activities,
as stated earlier. Therefore, the undersigned warranted little weight to Dr.
Travis’ opinions.
Dr. Tocci opined that the claimant has a global assessment of functioning
score of 55, indicating moderate mental symptoms. The Commissioner
specifically declined to endorse the GAF scale for use in disability
programs, and stated that the GAF scale “does not have a direct
correlation to the severity requirements in our mental disorders listings”.
Although her GAF opinion did somewhat support the record, it remained of
little value in assessing the claimant’s mental health record overall. Thus,
the undersigned assigned little weight to her GAF score.
In sum, the medical evidence of record and the claimant’s daily activities
supported the residual functional [capacity] assessment. The claimant[‘s]
statements/testimonies were not fully credible after a thorough review of
the record in its entirety. Most opinion evidence supported the record as a
whole during this period. Therefore, the undersigned finds the claimant
has retained the ability to perform work consistent with the residual
functional capacity established in this decision.
6.
The claimant is capable of performing past relevant work as a
fusing machine tender and a hand packager. This work does not
require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565 and
416.965).
The claimant was born on June 6, 1977 and was 35 years old, which is
defined as a younger individual, on the amended onset date (20 CFR
404.1563 and 416.963). The claimant has at least a high school education
and is able to communicate in English (20 CFR 404.1564 and 416.964).
She has acquired work skills through her past relevant work (20 CFR
404.1568 and 416.968). She performed this work at the substantial gainful
activity level within the past 15 years. Consequently, such work lasted
long enough for her to learn how to do the job (20 CFR 404.1565(a) and
416.965(a)). The earnings record, claimant’s work history, and her
testimony supported the duration, recency, and income threshold

10

requirements for her past relevant work (20 CFR 404.1574, 404.1575,
416.974, and 416.975).
Thus, based upon the Dictionary of Occupational Titles (DOT), Michael C.
McClanahan, Ph.D., an impartial vocational expert, has classified the
claimant’s past relevant work as the following:
(1) Fusing Machine Tender (DOT 583.685-046), which is
considered light, unskilled work with a specific vocational
preparation (SVP) of two; and
(2) Hand Packager (DOT 559.687-074), which is considered light,
unskilled work with an SVP of two.
Pursuant to SSR 00-4p, the undersigned finds the vocational expert’s
testimony is consistent with the information contained in the Dictionary of
Occupational Titles.
Accordingly, in comparing the light residual functional capacity with the
physical and mental demands of this work, the undersigned finds the
claimant is able to perform it[] as performed and as generally performed in
the national economy. This finding is based on the testimony of the
vocational expert.
7.
The claimant has not ben under a disability, as defined in the
Social Security Act, from [November 5, 2012], through the date of
this decision (20 CFR 404.1520(f) and 416.920(f)).
(Tr. 97, 98, 98-99, 100 & 101-05 (most internal citations omitted)).
II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform h[is] past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.

11

Watkins v. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9,
2012)4 (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden, at the fourth step, of proving that she is unable to perform
her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating
whether the claimant has met this burden, the examiner must consider the following four
factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age, education and work history.
Id. at 1005. Although “a claimant bears the burden of demonstrating an inability to return
to her past relevant work, the [Commissioner of Social Security] has an obligation to
develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). If a plaintiff proves that she cannot do his past relevant work, it then
becomes the Commissioner’s burden—at the fifth step—to prove that the plaintiff is
capable—given her age, education, and work history—of engaging in another kind of
substantial gainful employment that exists in the national economy. Phillips, supra, 357
F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529
U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform her past relevant
work as a fuser and hand packager, is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla and means such relevant evidence as a
4

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.

12

reasonable mind might accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether
substantial evidence exists, we must view the record as a whole, taking into account
evidence favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).5 Courts are precluded, however, from
“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence preponderates against the
Commissioner’s findings, [a court] must affirm if the decision reached is supported by
substantial evidence.’” Id. (quoting Crawford v. Commissioner of Social Sec., 363 F.3d
1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Zanders asserts four reasons the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ erred in failing to assign substantial weight to the opinions of the treating
physician, Dr. Judy Travis; (2) the ALJ erred in failing to accord substantial weight to the
opinion of

Dr. Nina Tocci, a consultative examiner; (3) the ALJ erred in failing to

conduct a full and fair hearing; and (4) the ALJ erred in failing to accurately consider the
side effects of medications. In addition to these issues, Plaintiff contends that the
Appeals Council failed to adequately examine additional evidence submitted to it.
A.

Opinions of Plaintiff’s Treating Physician, Dr. Judy Travis.

On

October 11, 2013, Dr. Travis completed both a Physical Medical Source Statement

5

This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

13

(“PCE”) and a Clinical Assessment of Pain (“CAP”) form. On the PCE, Travis indicated
that Zanders can sit for two hours at a time and a total of six hours in an eight-hour
workday, stand and walk two hours at a time and walk for a total of four hours in an
eight-hour workday,6 frequently lift and carry up to five pounds, occasionally lift and
carry up to 20 pounds, frequently use the hands for simple grasping and occasionally
for fine manipulation and pushing and pulling of arm controls, frequently use the feet for
pushing and pulling of leg controls, frequently stoop, crouch, kneel, crawl, and reach
overhead, occasionally climb and balance, and she has a moderate limitation with
respect to exposure to chemicals, noise, vibration, and dust, fumes and gases. (Tr. 60405.) Travis did not specifically identify any specific diagnoses on the PCE; instead, she
simply indicated that the limitations noted would be expected from the type and severity
of the diagnoses in Zanders’ case. (Id. at 606; compare id. with Tr. 604-05.) On the
CAP, Travis again did not identify the specific impairments being treated or Plaintiff’s
specific symptoms; she simply indicated that: (1) pain is present to such an extent as to
be distracting to adequate performance of daily activities; (2) physical activity—such as
walking, standing, bending, lifting, etc.—would greatly increase Plaintiff’s pain so as to
cause distraction from or total abandonment of task; (3) there are either some
medication side effects only mildly troublesome to Plaintiff or significant side effects
which may limit effectiveness of work duties or performance of everyday tasks; (4) pain
medications may cause some limitations but not to such a degree as to create serious
problems in most instances; and (5) little improvement can be expected in regard to
Plaintiff’s pain and the pain is likely to worsen with time. (Tr. 607-08.) Travis also
6

Travis failed to indicate for how many total hours in an eight-hour workday that
Plaintiff can walk. (See Tr. 604.)

14

indicated on this form that she had not treated Plaintiff with injections, nerve stimulation
or bio-feedback. (Id. at 608.)
The law in this Circuit is clear that an ALJ “’must specify what weight is given to a
treating physician’s opinion and any reason for giving it no weight, and failure to do so is
reversible error.’” Nyberg v. Commissioner of Social Sec., 179 Fed.Appx. 589, 590-591
(11th Cir. May 2, 2006) (unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (other citations omitted). In other words, “the ALJ must give the
opinion of the treating physician ‘substantial or considerable weight unless “good cause”
is shown to the contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan. 15,
2014), quoting Phillips, supra, 357 F.3d at 1240 (other citation omitted); see Nyberg,
supra, 179 Fed.Appx. at 591 (citing to same language from Crawford v. Commissioner
of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Good cause is shown 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.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible
error. Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21,
2010) (per curiam).
In this case, the ALJ accorded little weight to the opinions set forth on the PCE
Dr. Travis completed (Tr. 105).
Dr. Travis opined the claimant would be limited to less than sedentary
work with manipulative, postural and environmental limitations. Yet, she
did not state an objective basis to substantiate her conclusions. Dr. Travis’
own examination, on the same date she completed the medical source
statement, showed no [ab]normal findings with the exception of cold
15

fingers with cyanosis. Thus, there was essentially no deformities or
swelling. She had good muscle mass, full range of motion in all joints, and
no sign of atrophy. The claimant also engaged in various daily activities,
as stated earlier. Therefore, the undersigned warranted little weight to Dr.
Travis’ opinions.
(Id.)
The ALJ is absolutely correct in concluding that Dr. Travis’ own medical records
do not support her October 11, 2013 RFC assessment. As noted by the ALJ, Dr. Travis’
physical examination findings on October 11, 2013 do not support her RFC
assessment, Travis’ only abnormal musculoskeletal finding being cold fingers with
cyanosis (Tr. 613); otherwise, there were no other abnormal musculoskeletal findings
(see id. (“Symmetrical. No deformities. No swelling. Good muscle mass bilaterally. Full
range of motion of all joints. All muscles functioning well. No atrophy noted.”)).
Moreover, Travis’ objective examination findings from the amended onset date
(November 5, 2012) up to the date of the hearing decision (March 11, 2015) are
consistent with respect to their failure to reveal any significant musculoskeletal findings
(see Tr. 537 & 541 (physical examinations on July 24, 2013 and August 26, 2013 reflect
the same exact objective findings as noted on October 11, 2013); Tr. 543 (no
musculoskeletal examination performed on March 27, 2013 because Zanders had no
complaints); Tr. 548 (physical examination on January 4, 2013 reflects the same exact
objective findings as noted on October 11, 2013); Tr. 616 & 621 (physical examinations
on November 1, 2013 and February 14, 2014 reflect the same exact objective findings
as noted on October 11, 2013); Tr. 625 & 629 (physical examinations on June 16, 2014
and July 30, 2014 reflect some tenderness over the right elbow pronator but otherwise
there was no deformity, no swelling, good muscle mass bilaterally, full range of motion

16

of all joints, and no atrophy noted); Tr. 723 (physical examination on January 22, 2015
revealed grinding of both knees with extension and flexion but otherwise no deformities
or swelling, good muscle mass bilaterally, no muscle atrophy, and full range of motion of
all joints); and Tr. 727 & 730 (physical examinations on December 18, 2014 and
November 3, 2014 reflect no deformities or swelling, good muscle mass bilaterally, full
range of motion of all joints, and all muscles functioning well, with no atrophy noted)). In
light of these insignificant objective medical findings, this Court cannot find that the ALJ
erred in affording little weight to the various opinions set forth on Dr. Travis’ PCE. See
Gilabert, supra, 396 Fed.Appx. at 655 (good cause exists for not affording a treating
physician’s opinion substantial or considerable weight where the treating physician’s
opinion is inconsistent with her own medical records).7
B.

Opinion of Consultative Examiner Dr. Nina Tocci. Plaintiff next

contends that the ALJ reversibly erred in failing to give substantial weight to the opinion
of consultative examiner Dr. Nina Tocci that “[a]fter one year of weekly psychotherapy
with a psychologist, Ms. Zanders would be capable of returning to employment and/or
nursing school[]” (Tr. 474-75). (Doc. 15, at 6-7.) Plaintiff points out that the ALJ wholly
failed to discuss this particular opinion of Dr. Tocci in her administrative decision and,

7

Although the Plaintiff sets forth Travis’ CAP findings in her brief (see Doc. 15, at
3), she does not thereafter argue that the ALJ failed to give these findings appropriate weight.
Presumably, this is because Plaintiff nowhere argues (or establishes) that the ALJ improperly
analyzed her complaints of disabling pain. (See Doc. 15.) Nonetheless, the undersigned would
simply note Plaintiff’s lack of argument in this regard and, further, that Travis’ failure to “tie” her
pain assessment to specific impairments/diagnoses makes it impossible for this Court to “credit”
the findings set forth on that form, particularly in light of Plaintiff’s daily activities and the mostly
normal observations by the physicians who physically examined her during the period from
November 5, 2012 to March 11, 2015.

17

therefore, obviously failed to either discredit that opinion or indicate the weight she was
affording the opinion. (See id.)
There can be little question but that “[w]eighing the opinions and findings of
treating, examining, and non-examining physicians is an integral part of the process for
determining disability.” Kahle v. Commissioner of Social Sec., 845 F.Supp.2d 1262,
1271 (M.D. Fla. 2012). In general, “the opinions of examining physicians are given more
weight than those of non-examining physicians, treating physicians are given more
weight than those of physicians who examine but do not treat, and the opinions of
specialists are given more weight on issues within the area of expertise than those of
non-specialists.” McNamee v. Social Sec. Admin., 164 Fed.Appx. 919, 923 (11th Cir.
Jan. 31, 2006). In assessing the medical evidence, “[t]he ALJ must state with
particularity the weight given to different medical opinions and the reasons therefor[,]”
Romeo v. Commissioner of Social Sec., 2017 WL 1430964, *1 (11th Cir. Apr. 24, 2017)
(citing Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)),
and the ALJ’s stated reasons must be legitimate and supported by the record, see
Tavarez v. Commissioner of Social Sec., 638 Fed.Appx. 841, 847 (11th Cir. Jan. 7,
2016) (finding that the “ALJ did not express a legitimate reason supported by the record
for giving [the consulting physician’s] assessment little weight.”).
In this case, the ALJ certainly stated with particularity the weight she was
affording Dr. Tocci’s opinion regarding Plaintiff’s GAF score (see Tr. 105 (“[T]he
undersigned assigned little weight to [Dr. Tocci’s] GAF score.”));8 however, as Plaintiff

8

Plaintiff makes no argument that the ALJ erred with respect to her analysis of
Tocci’s GAF score. (See Doc. 15, at 6-7.)

18

points out, the ALJ did not make any mention of Dr. Tocci’s summary statement that
“[a]fter one year of weekly psychotherapy with a psychologist, Ms. Zanders would be
capable of returning to employment and/or nursing school.” (See id.; compare id. with
Tr. 474-75.) The Court finds that any error in this regard was merely harmless given that
Tocci’s statement in this regard is not a medical opinion but, instead, relates to Zanders’
ability to work fulltime in a competitive environment (see id.); therefore, the ALJ was not
required to afford that opinion any weight since it “goes to” a dispositive issue reserved
to the Commissioner. Compare Kelly v. Commissioner of Social Sec., 401 Fed.Appx.
403, 407 (11th Cir. Oct. 21, 2010) (“A doctor’s opinion on a dispositive issue reserved
for the Commissioner, such as whether the claimant is ‘disabled’ or ‘unable to work,’ is
not considered a medical opinion and is not given any special significance, even if
offered by a treating source[.]”) with Lanier v. Commissioner of Social Sec., 252
Fed.Appx. 311, 314 (11th Cir. Oct. 26, 2007) (“The ALJ correctly noted that the opinion
that Lanier was unable to work was reserved to the Commissioner.”).9

9

Furthermore, nothing about Tocci’s objective observations of Plaintiff’s mental
status—that is, she was fairly groomed, had good eye contact, responsive/sad facial
expressions, a cooperative attitude toward the examiner; an appropriate, normal and labile
affect; she was oriented to time, place, person, and situation; she demonstrated focused
attention and concentration; she had adequate memory; she demonstrated a good fund of
information and comprehension; she demonstrated thought content appropriate to mood and
circumstances and a logical thought organization; she demonstrated some insight into her
behavior, fair social judgment in her consideration of two social dilemmas, and was capable of
making informed personal and financial decisions; and appeared to be functioning within the
average range of intellectual ability (Tr. 473-74)—are in any manner inconsistent with the ALJ’s
mental residual functional capacity assessment (compare id. with Tr. 100 (“The claimant can
perform simple, routine and repetitive tasks involving simple work related decisions with
few, if any, work place changes. She should avoid all direct contact with the general
public. Work can be around co-workers but with only occasional interaction with coworkers.”)) or the ultimate determinate that Plaintiff retains the residual functional capacity to
perform the mental requirements of her past work as a fuser and hand packager (see Doc. 104).

19

C.

Whether the ALJ Failed to Develop a Full and Fair Record. It is clear

that the ALJ essentially “shut down” the initial hearing in this case on August 25, 2014
(see Tr. 133-43) once it became clear that some evidence was missing from the record,
including that there were no diagnostic results contained on a report of NCV/EMG
testing (see id. at 141-43). 10 In closing that initial hearing, the ALJ made the following
comment: “[T]hat will give you [counsel] plenty of time . . . to get pharmacy records,
updated treatment records[.] [I]f for some reason the impression from the nerve
conduction study[,] there is not one, let me know and I’ll consider what we need to do
with that. Whether we need to have a medical expert or not.” (Tr. 143.) Plaintiff’s
counsel advised the ALJ, by letter dated September 2, 2014, that there was still no
diagnostic impression on the NCV/EMG (see Tr. 647) and during the administrative
hearing on February 9, 2015, the following occurred:
ATTY: . . . I think one of the biggest issues [from the first hearing
with respect to whether the evidence was fully developed] w[as] . . . the
NC[V] Base Studies that were done by UAB and the[re] not being a
diagnosis on the actual test results. And I got all of the records from UAB
and written to you to say there’s still no diagnosis on the actual test
results. They were forwarded to Dr. Travis, since she’s the one who
referred Ms. Zanders to UAB for the test.
ALJ: It looks like Dr. Travis’s most recent records don’t show any
evidence – I mean there’s no current evidence of carpal tunnel in the
diagnosis.
ATTY: Right. There’s no mention of even the [N]CV test results in
her records either, so . . . .
(Tr. 115-16.) The ALJ entered her opinion after the hearing without obtaining an opinion
for a medical expert, through a consultative examination, regarding whether the test
10

The nerve conduction studies were performed on December 19, 2013. (Tr. 633-

34.)

20

revealed evidence of carpal tunnel syndrome (see Tr. 103 (“Given the claimant’s
allegations of bilateral hand numbness, the record reflected no clear interpretation of the
electromyogram and nerve conduction studies. Dr. Ubogu provided no summarization of
his findings to substantiate carpal tunnel syndrome or neuropathy occurring in the
claimant’s bilateral hands. Thus, there was essentially no evidence to warrant
manipulative limitations or signs of atrophy. In fact, Dr. Ubogu noted the claimant had
no neurological diagnosis. An examination revealed negative Tinel’s sign and no
sensory deficits[, with] full range of motion. Examinations have shown full range of
motion of all joints, all muscles functioning well and no atrophy. Thus, there is no
medically determinable impairment due to carpal tunnel syndrome or numbness of the
hands.”)). As a result, Plaintiff contends that the ALJ erred in failing to fully and fairly
develop the record, arguing a consultative examination was necessary for the ALJ to
make an informed decision (Doc. 15, at 8-9).
Plaintiff is certainly correct that the regulations provide for a consultative
examination when additional evidence is needed that is not contained in the records of
her medical sources, where the evidence available from other sources cannot be
obtained for a reason beyond the claimant’s control (such as the noncooperation of a
medical source), or when there is an indication of a change in condition that is likely to
affect her ability to work, but the current severity of her impairment is not established.
See, e.g., 20 C.F.R. § 404.1519a(b)(1), (2) & (4) (2016). However, the regulations also
provide that if information sufficient to make an informed disability decision can be
obtained from the claimant’s treating physicians and other medical sources, a
consultative examination will not be necessary, compare, e.g., 20 C.F.R. § 404.1512(e)

21

(“Generally, we will not request a consultative examination until we have made every
reasonable effort to obtain medical evidence from your own medical sources.”) with,
e.g., 20 C.F.R. § 404.1517 (“If your medical sources cannot or will not give us sufficient
medical evidence about your impairment for us to determine whether you are disabled
or blind, we may ask you to have one or more physical or mental examinations or
tests.”) and 20 C.F.R. § 404.1519a(a) (“If we cannot get the information we need from
your medical sources, we may decide to purchase a consultative examination.”), and
the Eleventh Circuit has consistently determined that an ALJ “is not required to order a
consultative examination as long as the record contains sufficient evidence for the
administrative law judge to make an informed decision.” Ingram v. Commissioner of
Social Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (citation omitted).
Initially, it need be noted that there is no evidence to suggest that Dr. Ubogu’s
diagnostic impression of the studies was unavailable to Plaintiff for a reason beyond her
control; that is, there is nothing to suggest that Plaintiff attempted to obtain Dr. Ubogu’s
diagnostic impression but was unable to obtain it because of a lack of cooperation on
Dr. Ubogu’s end. Rather, all that happened is that Plaintiff again obtained the records of
the studies from UAB and noted the lack of a diagnostic impression. (See Tr. 647.)
Beyond this failure to act on Plaintiff’s part, there is simply no evidence of record
generated by Dr. Travis after the nerve conduction studies on December 19, 2013 to
substantiate carpal tunnel syndrome or numbness of the hands caused by carpal tunnel
syndrome.11 Instead, Plaintiff’s office visits to Dr. Travis on February 14, 2014, May 16,

11

After all, it was Dr. Travis who ordered the nerve conduction studies on
November 1, 2013. (See Tr. 618 (“Instructions: BILATERAL UPPER LIMBS NERVE
CONDUCTION STUDIES.”)).

(Continued)
22

2014, July 30, 2014, November 3, 2014, December 18, 2014, and January 22, 2015,
reveal no assessment of carpal tunnel syndrome or numbness of the hands associated
with carpal syndrome (see Tr. 621, 625, 629, 723, 727 & 730) and, importantly, reflect
no musculoskeletal or neurologic problems with the hands beyond the notation on one
visit (on February 14, 2014) of cold fingers with cyanosis (see id.). Indeed, Plaintiff’s
neurologic examination was consistently normal. (See id. (“Cranial nerves II-XII intact.
Deep tendon and superficial reflexes are active and equal bilaterally. Sensorium
clear.”)). Given that the physician who ordered the nerve conduction studies generated
no evidence after those studies were conducted to suggest that Plaintiff had carpal
tunnel syndrome or numbness caused by carpal runnel syndrome, this Court simply
cannot find that the ALJ reversibly erred in failing to develop the record by ordering a
consultative examination in this case. Cf. Childers v. Social Sec. Admin., Commissioner,
521 Fed.Appx. 809, 815 (11th Cir. Jun. 6, 2013) (“Failure to fulfill this duty, however,
only necessitates a remand if ‘the record reveals evidentiary gaps which result in
unfairness or clear prejudice.’”). In other words, such an examination was not necessary
in order for the ALJ to make an informed decision because the records from Dr. Travis
are sufficient to establish that Plaintiff either does not suffer from carpal tunnel
syndrome or numbness of the hands as a result of carpal tunnel syndrome or, at the
very least, do not supply any evidence supportive of manipulative limitations caused by
carpal tunnel syndrome resulting in a more restrictive RFC determination than the
finding made by the ALJ in this case. Accordingly, a remand is not necessary with
respect to Plaintiff’s third assignment of error.

23

D.

Medication Side Effects. Plaintiff contends that she complained to her

physicians about side effects attendant to her psychiatric medications (compare Doc.
15, at 9 with Tr. 489, 516, 565 & 748) and since the record contains no evidence
contradicting her allegations of side effects, her hearing allegations (see Tr. 139 (“My
mouth is always dry, stomach ache, sometimes I have to be careful like when I go
places, because if I take the medicine, it upsets my stomach and I have to use the
bathroom. It makes me sleepy and groggy and dizzy.”)) must be accepted as true and
the decision denying benefits should be reversed (see Doc. 15, at 10), given that the
administrative decision “is silent on the ALJ’s evaluation of these side effects in her
assessment of the RFC.” (Id. at 9.)
The Eleventh Circuit has long made clear that “[i]t is conceivable that the side
effects of medication could render a claimant disabled or at least contribute to a
disability.” Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981). Consequently, as
noted by Plaintiff (Doc. 15, at 9-10), the ALJ must consider medication side effects in
evaluating a claimant’s credibility about symptoms, see, e.g., 20 C.F.R. §
404.1529(c)(3)(iv) (“Since symptoms sometimes suggest a greater severity of
impairment than can be shown by objective medical evidence alone, we will carefully
consider any other information you may submit about your symptoms. . . . Factors
relevant to your symptoms, such as pain, which we will consider, include: . . . [t]he type,
dosage, effectiveness and side effects of any medication you take or have taken to
alleviate your pain or other symptoms[.]”), and in determining the claimant’s RFC, see
SSR 96-8p (“The RFC assessment must be based on all of the relevant evidence in the
case record, such as: . . . restrictions imposed by the mechanics of treatment (e.g., . . .

24

side effects of medication[.]”). This makes sense, of course, because “when there is
evidence in the record that the claimant is taking medications, and it is conceivable that
the ‘side effects of medication could render a claimant disabled or at least contribute to
a disability,’ the ALJ has an obligation to elicit testimony or make findings on the effects
of the medications on the ability to work[.]” Leiter v. Commissioner of Social Sec.
Admin., 377 Fed.Appx. 944, 949 (11th Cir. May 6, 2010), quoting Cowart, supra, 662
F.2d at 737.
The undersigned concludes that the ALJ did not commit reversible error in her
treatment of Plaintiff’s alleged medication side effects. What is crucial to understand
with respect to this assignment of error is that Plaintiff is simply incorrect in arguing that
her medication side effects testimony is directed to the psychiatric medication she takes
(see Doc. 15, at 9). Instead, a review of the hearing testimony, which is cited in
Plaintiff’s brief (id.), comes from Plaintiff’s first hearing on August 25, 2014 (see Tr. 133143), not her second hearing on February 9, 2015 (see Tr. 112-132), and it is clear that
Zanders’ August 25, 2014 testimony was directed to the medication she was then taking
for her back pain, not the medication she was taking to combat her depression and
anxiety (see Tr. 139 (“Q And if we look at a zero to ten scale, how would you classify
your back pain? A About seven to eight. Q And has it been a seven to eight for the last
four or five years? A Yes, ma’am. Q And are you taking any pain medication? A I take
Lyrica, Tylenol and muscle relaxer. Q And do you have any side effects to any of the
medications that you take? A Yes, ma’am. Q What side effects? A My mouth is always
dry, stomach ache, sometimes I have to be careful like when I go places, because if I
take the medicine[] it upsets my stomach and I have to use the bathroom. It makes me

25

sleepy and groggy and dizzy.”)). Against this backdrop, and with the further realization
that the ALJ’s decision only makes reference to the hearing (and testimony) conducted
on February 9, 2015 (compare Tr. 95 with Tr. 101-02), it is perfectly understandable
why the ALJ makes absolutely no reference to any medication side effects testimony
since the represented Zanders gave no testimony during her second administrative
hearing that medication side effects contribute to her disability (see Tr. 112-132). In
other words, because the testimony that matters is that given at the hearing on
February 9, 2015,12 and the represented claimant did not mention her medication side
effects in response to the ALJ’s questions about why she could not work (see Tr. 11721), the ALJ did not have to inquire into any alleged side effects and certainly did not
have to specifically evaluate or discredit medication side effect testimony that was not
given. Compare Burgin v. Commissioner of Social Sec., 420 Fed.Appx. 901, 904 (11th
Cir. Mar. 30, 2011) (“Where a represented claimant raises a question as to the side
effects of medications, but does not otherwise allege the side effects contribute to the
alleged disability, we have determined the ALJ does not err in failing ‘to inquire further
into possible side effects.’ Cherry v. Heckler, 760 F.2d 1186, 1191 n.7 (11th Cir. 1985).
Further, if there is no evidence before the ALJ that a claimant is taking medication that
causes side effects, the ALJ is not required to elicit testimony or make findings
12

Plaintiff has not cited any case law establishing that the ALJ was required to
evaluate medication side effect testimony given at the “partial” hearing six months earlier, on
August 25, 2014, particularly since that testimony was directed to the pain medications she was
then taking and there is no evidence of record that Dr. Travis reported any side effects from
Zanders’ medications or that Zanders complained to Dr. Travis about any side effects (see Tr.
611-30 & 721-31). See, e.g., Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (where
represented claimant did not complain about medication side effects, other than an isolated
mention that they might be responsible for causing her headaches, and where the record did not
disclose concerns about side effects from her doctors, substantial evidence supported the
determination that the effects did not present a significant problem).

26

regarding the medications and their side effects. . . . The record establishes the ALJ did
not err by failing to consider the alleged side effects of Burgin’s medications. Because
Burgin was represented by counsel at his hearing, the ALJ was not required to inquire in
detail about his alleged side effects. . . . Moreover, because there was no evidence
Burgin was experiencing side effects form his medication, the ALJ was not required to
make findings regarding his side effects when assessing his subjective complaints.”)
with Colon ex rel. Colon v. Commissioner of Social Sec., 411 Fed.Appx. 236, 238 (11th
Cir. Jan. 25, 2011) (“[W]here a represented claimant makes a similar statement, but
does not otherwise allege that the side effects contribute to the alleged disability, we
have determined that the ALJ does not err in failing ‘to inquire further into possible side
effects.’ Cherry v. Heckler, 760 F.2d 1186, 1191 n.7 (11th Cir. 1985). The ALJ noted
the obligation to consider the side effects of Mr. Colon’s medications when assessing
his subjective complaints and summarized the limited evidence in the record about the
side effects. While Mr. Colon had reported some side effects from his medications in a
disability report and his lawyer had given the ALJ a list of Mr. Colon’s medications and
their side effects, Mr. Colon did not mention his medication side effects in response to
the ALJ’s questions about why he could not return to work. Because Mr. Colon was
represented at his hearing, the ALJ was not required to inquire further into Mr. Colon’s
alleged side effects[.]”). And given that Plaintiff’s specific assignment of error in this
regard is premised upon the ALJ’s failure to discount the medication side effect
testimony given on August 25, 2014, such that this testimony must be accepted as true
(see Doc. 15, at 9-10), this Court can reach no other conclusion but that this assignment
of error need be overruled, not only because the only testimony that matters is that

27

given at the February 9, 2015 hearing (and Plaintiff gave no medication side effect
testimony) but, as well, because the medication side effect testimony from the initial
hearing (on August 25, 2014) has no substantiation in the record.13
E.

New Evidence Submitted to the Appeals Council. Zanders contends

that the Appeals Council failed to adequately examine the additional evidence submitted
to it, more specifically, those records supplied by Dr. Kevin Thompson, an orthopedic
surgeon, relative to her right elbow and right knee. (Compare Doc. 15, at 11-12 with Tr.
46-77 & 83-86.) In particular, the Plaintiff criticizes the Appeals Council for “lumping” Dr.
Thompson’s records together with the other evidence submitted by her on appeal in
making the following determination: “We also looked at evidence from various sources.
There is medical evidence, dated September 11, 2015 through February 25, 2016
received from West Alabama Mental Health Center (36 pages); medical evidence, dated
May 5, 2015 through February 18, 2016 received from University Orthopaedic Clinic (34
pages); and medical evidence, dated February 26, 2016 received from Travis Clinic (2
pages). The Administrative Law Judge decided your case through March 11, 2015. This
13

The undersigned also cannot agree with the Plaintiff that the ALJ’s decision “is
silent” with respect to “evaluation of [alleged] side effects in her [the ALJ’s] assessment of the
RFC.” (Doc. 15, at 9.) Indeed, the ALJ in this case cited to Plaintiff’s specific record denials of
“adverse medication side effects” with respect to her psychiatric medication (Tr. 103 & 105
(citing Exhibit 25F, pp. 4, 6 & 11)) in support of the evaluation of the credibility of Plaintiff’s
various statements vis-à-vis the RFC determination. Therefore, even if plaintiff is correct that the
records from West Alabama Mental Health Center contain some complaints of medication side
effects (see Tr. 516 & 565 (notes reflect discussion between Zanders and the therapist about
medication side effects but no specific delineation of the exact side effects); Tr. 489 (Zanders
reported tiredness, headache and upset stomach but there is no specific link between these
complaints and her psychiatric medications); Tr. 748 (note reflecting Zanders voiced complaints
of dry mouth and occasional drowsiness but that no adverse reactions were observed)), those
records are also replete with record denials of adverse medication side effects (see, e.g., Tr.
549, 557, 567-68, 661, 665, 668, 678, 735-37, 742, & 746), such that this Court would
necessarily have to determine that the ALJ’s RFC assessment (which is inclusive of citation to
some of the record denials of adverse medication side effects) is supported by substantial
evidence.

28

new information is about a later time. Therefore, it does not affect the decision about
whether you were disabled beginning on or before March 11, 2015.” (Tr. 2.) According
to Plaintiff, the Appeals Council erred in its review of the new evidence because “the
allegations of both elbow and knee pain were made in the underlying claim. (Tr. 420,
421, 423, 433, 627, 629, 654, 657, 690, 692, 705, 707, 709, 713, 716, 720, 723, 725)[.]”
(Doc. 15, at 12.)
The Eleventh Circuit has made clear that “[w]ith few exceptions, the claimant is
allowed to present new evidence at each stage of th[e] administrative [review]
process[,]” including before the Appeals Council. Ingram, supra, 496 F.3d at 1261. And
while the Appeals Council has the discretion not to review the ALJ’s denial of benefits,
Flowers v. Commissioner of Social Sec., 441 Fed.Appx. 735, 745 (11th Cir. Sept. 30,
2011), it “must consider new, material, and chronologically relevant evidence” submitted
by the claimant. Ingram, supra, 496 F.3d at 1261; see also 20 C.F.R. § 404.970(b) (“If
new and material evidence is submitted, the Appeals Council shall consider the
additional evidence only where it relates to the period on or before the date of the
administrative law judge hearing decision.”).
The new evidence is material if it is “relevant and probative so that there is
a reasonable possibility that it would change the administrative result.”
Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987) (citations omitted). It is
chronologically relevant if “it relates to the period on or before the date of
the [ALJ] hearing decision.” 20 C.F.R. § 404.970(b). If these conditions are
satisfied, the Appeals Council [] must then review the case to see whether
the ALJ’s “action, findings, or conclusion is contrary to the weight of the
evidence currently of record.” Id.
Ring v. Berryhill, 2017 WL 992174, *4 (N.D. Ala. Mar. 15, 2017).
In Flowers, supra, the Eleventh Circuit made clear that “[w]hen a claimant
properly presents new evidence, and the Appeals Council denies review, the Appeals
29

Council must show in its written denial that it has adequately evaluated the new
evidence.” 441 Fed.Appx. at 745 (citation omitted). Indeed, “[i]f the Appeals Council
merely ‘perfunctorily adhere[s]’ to the ALJ’s decision, the Commissioner’s findings are
not supported by substantial evidence and we must remand ‘for a determination of [the
claimant’s] disability eligibility reached on the total record.’” Id., quoting Epps v. Harris,
624 F.2d 1267, 1273 (5th Cir. 1980). The panel in Flowers ultimately concluded that the
Appeals Council did not adequately consider the new evidence submitted by the
claimant because “apart from acknowledging that Flowers had submitted new evidence,
the Appeals Council made no further mention of it or attempt to evaluate it.” Id.
However, since the decision in Flowers, subsequent panels of the Eleventh
Circuit have indicated that where the Appeals Council accepts a claimant’s new
evidence but denies “review because the additional evidence fail[s] to establish error in
the ALJ’s decision[,]” that administrative body adequately evaluates the new evidence.
Mitchell v. Commissioner, Social Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014); see
also Beavers v. Social Sec. Admin., Commissioner, 601 Fed.Appx. 818, 822 (11th Cir.
Feb. 9, 2015) (“Here, the Appeals Council denied Worthy’s petition for review, stating,
as it did in Mitchell, that it had considered Worthy’s reasons for disagreeing with the
ALJ’s decision and her new evidence, but found that the new evidence did not provide a
basis for changing the ALJ’s decision. Under Mitchell, no further explanation was
required of the Appeals Council.”). Indeed, the Mitchell panel noted that the Appeals
Council “was not required to provide a detailed rationale for denying review.” 771 F.3d
at 784; see also id. at 784-85 (“We note that our conclusion that the Appeals Council is

30

not required to explain its rationale for denying a request for review is consistent with
the holdings of other circuits that have considered this issue.”).
These subsequent panel cases leave the viability of Flowers somewhat
questionable given that, as noted by the court in Flowers, the Appeals Council “stated
that it had considered Flowers’s reasons for her disagreement with the ALJ’s decision
and her additional evidence[]” but “concluded ‘that this information does not provide a
basis for changing the Administrative Law Judge’s decision.’” 441 Fed.Appx. at 740.
This, of course, is the exact Appeals Council rationale upheld by later Eleventh Circuit
panels in Mitchell and Beavers without need for further explanation/evaluation.
Compare id. with Mitchell supra, 771 F.3d at 784-85 and Beavers, supra, 601 Fed.Appx.
at 822.
With these principles in mind, the Court turns to Plaintiff’s arguments relative to
the Appeals Council’s treatment of Dr. Thompson’s treatment records which, as
aforesaid, was, as follows: “We also looked at evidence from various sources. There is
medical evidence, dated September 11, 2015 through February 25, 2016 received from
West Alabama Mental Health Center (36 pages); medical evidence, dated May 5, 2015
through February 18, 2016 received from University Orthopaedic Clinic (34 pages); and
medical evidence, dated February 26, 2016 received from Travis Clinic (2 pages). The
Administrative Law Judge decided your case through March 11, 2015. This new
information is about a later time. Therefore, it does not affect the decision about whether
you were disabled beginning on or before March 11, 2015.” (Tr. 2.) According to
Plaintiff, these statements are inappropriate and do not demonstrate that the ALJ
adequately evaluated the new evidence obtained from Dr. Thompson, thereby requiring

31

remand. (Doc. 15, at 11 (citing Flowers, supra, in arguing that the Appeals Council
failed to show in its written denial that it had adequately evaluated the new evidence)).
This Court cannot agree with Plaintiff’s very general argument because, as alluded to
earlier, Eleventh Circuit panel opinions subsequent to Flowers have called into question
any remaining viability of Flowers, compare Mitchell, supra, 771 F.3d at 784-85 with
Beavers, 601 Fed.Appx. at 822; therefore, this Court cannot agree with any suggestion
by Zanders that the language utilized by the Appeals Council was inappropriate and
does not demonstrate that it adequately evaluated the new evidence, see Beavers,
supra. This conclusion is confirmed by more recent cases in which district courts have
given no indication that language all but identical to that utilized by the Appeals Council
in this case amounts to perfunctory language that does not demonstrate
adequate/meaningful evaluation of the new evidence. Compare Putman v. Colvin, 2016
WL 5253215, *10-11 (N.D. Ala. Sept. 22, 2016) (distinguishing Flowers and “automatic
remand” in a case in which the Appeals Council, in addition to stating “’this information
does not provide a basis for changing the [ALJ’s] decision[,]’” also “went on to explain
that the ALJ ‘decided your case through March 31, 2013, the date you were last insured
for disability benefits. This new information is about a later time. Therefore, it does not
affect the decision about whether you were disabled at the time you were last insured
for disability benefits.’”) with Matos v. Colvin, 2015 WL 5474486, *5 (M.D. Fla. Sept. 17,
2015) (“The Appeals Council determined that the December 2012 opinion of Dr. Reeves
did not provide a basis for changing the ALJ’s decision because: ‘The Administrative
Law Judge decided your case through December 31, 2010, the date you were last
insured for disability benefits. This new information is about a later time. Therefore, it

32

does not affect the decision about whether you were disabled at the time you were last
insured for disability benefits.’ . . . Here, the opinion is dated almost two years after the
date last insured and there is no indication from Dr. Reeves that the limitations he found
in 2012 were present two years earlier. Indeed, there is a dearth of evidence prior to the
expiration of Plaintiff’s insured status that could support these limitations. The only
evidence Plaintiff cites is a November 29, 2010 x-ray which revealed moderate
degenerative changes, soft tissue swelling and ossified bodies along the medial joint [].
There is no finding of the ‘significant subtalar joint arthrosis’ presented two years later.
The Appeals Council applied proper standards of law and its conclusion is supported by
substantial evidence.”); see Hunter v. Colvin, 2013 WL 1219746, *4 (S.D. Ala. Mar. 25,
2013) (“Here, the Appeals Council could have meaningfully addressed the plaintiff’s
new evidence by, for example, specifically rejecting it because (in its view) the new
evidence did not relate to the period at issue.”). Implicit in Putman and Matos is the
recognition that the Appeals Council’s language, which is identical to the language used
by the Appeals Council in this case (save that instead of referencing the date last
insured, the Appeals Council referenced the date of the hearing decision, March 11,
2015), is directed to materiality and/or chronological relevance and, therefore, is not an
inadequate/perfunctory evaluation of the evidence requiring remand under Flowers and
its progeny. See Putman, supra, at *10-11; Matos, supra, at *5.14 Accordingly, Plaintiff’s
argument in this regard fails.

14

This Court simply cannot discern any error with the Appeals Council evaluation of
the evidence presented to it by Dr. Thompson in this case. It is clear, as aforesaid, that “[n]ew
evidence is chronically relevant if ‘it relates to the period on or before the date of the
administrative law judge hearing decision.’” Stone v. Social Sec. Admin., Commissioner, 658
Fed.Appx. 551, 553 (11th Cir. Oct. 19, 2016) (citation omitted). It is also clear that “[u]nder

(Continued)
33

There being no other claims of error asserted, the Court finds that the
Commissioner’s final decision denying Zanders benefits is due to be affirmed.
CONCLUSION
In light of the foregoing analysis, it is ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff benefits be affirmed.
DONE and ORDERED this the 28th day of August, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

certain circumstances, medical examinations conducted after the ALJ’s decision may still be
chronically relevant, if they relate back to a time on or before the ALJ’s decision.” Id., citing
Washington v. Social Sec. Admin., Commissioner, 806 F.3d 1317, 1320 (11th Cir. 2015). The
undersigned has thoroughly reviewed the medical examination evidence from Dr. Thompson
that was submitted to the Appeals Council (see Tr. 46-77 & 83-86) and simply finds nothing
therein which “ties” that evidence to a time on or before the ALJ’s (see id.) and, indeed, there is
nothing contained in Thompson’s records that would appear to undermine the ALJ’s RFC
determination. While Plaintiff may well have occasionally complained of right elbow and knee
pain to her treating and examining physicians (see, e.g., 420 (elbow pain); 627 (elbow pain);
690 (elbow pain); 705 (elbow pain); 709 (soreness of elbow); 716 (right elbow pain); 721 & 723
(bilateral knee pain with grinding on extension and flexion); 725 (elbow pain)) during the
relevant time period, these complaints were minor compared to Plaintiff’s symptomatic
complaints about her back and hands and, indeed, at the hearing on February 9, 2015, Zanders
made no mention of her right elbow or knee pain in describing those conditions which contribute
to her disability, though given an open avenue to do so (see Tr. 122 (Q Anything else that we
haven’t talked about that you’d like to tell me? A No, ma’am.”); compare id. with id. at Tr. 117122 (Plaintiff identified back pain as her most severe impairment, which produced numbness in
her left leg, and then identified Raynaud’s disease in her hands, anxiety, depression, and
problems with her feet as additional conditions which interfere with her ability to work)). And
because the records from Dr. Thompson include no express reference to Zanders’ knee and
elbow condition and symptoms before the ALJ’s decision, this Court cannot find that Zanders
has shown that Thompson’s records are chronologically relevant, nor has she established that
the manner in which the Appeals Council evaluated the evidence presented to it from Dr.
Thompson was so inadequate or perfunctory as to require remand under Flowers and its
progeny.

34