Clark v. Commissioner of Social Security
OPINION AND ORDER affirming the decision of the Commissioner of Social Security. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 9/15/2016. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CAROL ANN CLARK,
Case No: 8:15-cv-1077-T-MRM
COMMISSIONER OF SOCIAL
OPINION AND ORDER
This cause is before the Court on Plaintiff Carol Ann Clark’s Complaint (Doc. 1) filed on
May 4, 2015. Plaintiff seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying her claim for a period of disability, disability
insurance benefits, and supplemental security income. The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and
the parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
Social Security Act Eligibility, the ALJ Decision, and Standard of Review
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the
burden of persuasion through step four, while the burden shifts to the Commissioner at step five.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
On June 24, 2011, Plaintiff filed an application for disability insurance benefits and for
supplemental security income asserting an onset date of December 24, 2010. (Tr. at 59, 200-12).
Plaintiff’s applications were denied initially on October 17, 2011, and on reconsideration on
December 14, 2011. (Tr. at 59, 60, 79, 80). A hearing was held before Administrative Law
Judge (“ALJ”) Roseanne Dummer on June 5, 2013. (Tr. at 32-58). The ALJ issued an
unfavorable decision on June 24, 2013. (Tr. at 15-26). The ALJ found Plaintiff not to be under a
disability from December 24, 2010, through the date of the decision. (Tr. at 25).
On December 2, 2014, the Appeals Council denied Plaintiff’s request for review. (Tr. at
4-8). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on May 4, 2015. 1
This case is ripe for review. The parties consented to proceed before a United States Magistrate
Judge for all proceedings. (See Doc. 16).
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 2 An ALJ must determine
On April 2, 2015, the Appeals Council granted Plaintiff additional time to file a civil action.
(Tr. at 1-2). Plaintiff was granted thirty (30) days from the date she received the Appeals
Council’s letter to file her appeal with the United States District Court. (Tr. at 1-2).
Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform his past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through March 31,
2011. (Tr. at 17). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since December 24, 2010, the alleged onset date. (Tr. at
17). At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
history of prolapsing mitral valve leaflet syndrome, history of bipolar affective disorder,
generalized anxiety disorder, major depressive disorder, and obesity. (Tr. at 17). At step three,
the ALJ determined that Plaintiff did 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, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926). (Tr. at 17). At step four, the ALJ determined that Plaintiff has the residual functional
capacity (“RFC”) to avoid heavy work. The ALJ found Plaintiff could lift/carry 50 pounds
occasionally and 25 pounds frequently; is able to sit for six of eight hours; can stand/walk for six
of eight hours; should avoid concentrated exposure to pulmonary irritants such as fumes, odors,
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
dusts, gases, and poor ventilation; and secondary to mental limitations, is able to perform simple,
routine, repetitive type tasks. (Tr. at 18).
The ALJ determined that Plaintiff is unable to perform any past relevant work. (Tr. at
24). Considering Plaintiff’s age, education, work experience, and RFC, the ALJ found that there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Tr.
at 24). Specifically, the ALJ found that Plaintiff was able to perform the following medium
exertional level jobs: (1) kitchen helper, DOT # 318.687-101; (2) cleaner, DOT # 381.687-108;
and (3) dining room attendant, DOT # 311.677-108. The ALJ also determined that Plaintiff was
able to perform the following light exertional level jobs: (1) cashier II, DOT # 211.462-010; (2)
ticketer/merchandise marker, DOT # 229.587-018; and (3) ticket taker, DOT # 344.667-010.
920. 3 (Tr. at 25). The ALJ concluded that Plaintiff was not under a disability from December
24, 2010, through the date of the decision. (Tr. at 25).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson, 402 U.S. at 401).
“DOT” refers to the Dictionary of Occupational Titles.
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); and Barnes v. Sullivan,
932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at
1560; accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the
entire record to determine reasonableness of factual findings).
On appeal, Plaintiff raises two issues. As stated by Plaintiff, they are:
(1) The ALJ’s decision was in error in failing to develop the record regarding the
claimant’s visual impairments.
(2) The Appeals Council erred in failing to remand the case after receipt of new
and material evidence.
(Doc. 24 at 5, 7). The Court will discuss each issue in turn.
A. Duty to develop record
Plaintiff argues that the even though Plaintiff is clearly not blind, the ALJ failed to
develop the record concerning Plaintiff’s reduced vision acuity. The Commissioner responds
that Plaintiff provided no basis for requiring the ALJ to further develop the record concerning
Plaintiff’s alleged visual impairments. 4
Plaintiff frames this issue as the ALJ erred in failing to develop the record as to Plaintiff’s
alleged vision limitation. The law cited by Plaintiff, however, concerns Plaintiff’s credibility.
The Court notes that the ALJ found Plaintiff not to be fully credible, and did find that the
credibility of her statements concerning the intensity, persistence and the limiting effects of her
symptoms to be poor. (Tr. at 21, 24). Although the ALJ did not find Plaintiff to be fully
credible, this credibility determination did not appear to be directed at the issue of Plaintiff’s
vision. The ALJ stated, Plaintiff “has poor near vision, but uses reading glasses.” (Tr. at 19).
A plaintiff bears the burden of proving she is disabled, and is responsible “for producing
evidence in support of h[er] claim.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003)
(citing 20 C.F.R. § 416.912(a)). However, an ALJ “has a basic duty to develop a full and fair
record.” Id. (citing 20 C.F.R. § 416.912(d)); see also 20 C.F.R. § 404.1545(a)(3) (“However,
before we make a determination that you are not disabled, we are responsible for developing
your complete medical history, including arranging for a consultative examination(s) if
necessary, and making every reasonable effort to help you get medical reports from your own
Even though the ALJ has a duty to develop the record, a plaintiff must show prejudice
before a court will find that a plaintiff’s “right to due process has been violated to such a degree
that the case must be remanded to the Secretary for further development of the record.” Brown
v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (citing Kelley v. Heckler, 761 F.2d 1538, 1540
(11th Cir. 1985)). To determine if prejudice exists, the Court must determine if the record
contains evidentiary gaps which will result in unfairness or clear prejudice. Id. (citing Smith v.
Schweiker, 677 F.2d 826, 830 (11th Cir. 1982)).
A court must keep in mind that it must affirm an ALJ’s decision if there exists “‘such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.’”
Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (quoting Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotation omitted)). A
court may not “‘decid[e] the facts anew, mak[e] credibility determinations, or re-weigh[ ] the
evidence.’” Id. (quoting Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)). “Even if
This statement by the ALJ did not contradict Plaintiff’s testimony. The Court finds that the first
issue concerns the ALJ’s duty to develop the record.
the evidence preponderates against the Commissioner’s findings, [a court] must affirm if the
decision reached is supported by substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158-59 (11th Cir. 2004). A court must “‘scrutinize the record as a whole to
determine if the decision reached is reasonable and supported by substantial evidence.’” Henry
v. Comm’r of Soc. Sec., 802 F.3d at 1267 (citing MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986)).
The record contains two instances when Plaintiff’s vision was mentioned. Plaintiff
testified that that her vision is “terrible.” (Tr. at 44). She claimed that when she had insurance,
she obtained glasses due to her “bad problems” with her eyes “for close up and for reading” but
her “far away” vision was good. (Tr. at 44). Plaintiff now uses “readers” or reading glasses
when she reads. (Tr. at 44). The second instance was during a consultative physical
examination conducted on September 24, 2011 by Christopher Cook, D.O. (Tr. at 350-57). Dr.
Cook found: “[p]upils were equally round and reactive to light. Extraocular movements were
intact. Visual acuity appeared grossly normal with intact visual fields by confrontation. Visual
acuity on the left was 20/70 and on the right was 20/50.” (Tr. at 352). Dr. Cook did not
diagnose Plaintiff with any visual limitations. (Tr. at 350-357). In her decision, the ALJ
included a brief acknowledgment that Plaintiff claimed she has poor near vision, but that she
uses reading glasses. (Tr. at 19).
Plaintiff argues that based on her testimony and on the consultative examination finding
that Plaintiff’s visual acuity of 20/70 on the left and 20/50 on the right, Plaintiff’s visual acuity
“could impact the claimant’s ability to perform some types of jobs.” (Doc. 24 at 6).
Accordingly, Plaintiff concludes that the ALJ should have developed the record further as to
Plaintiff’s visual acuity.
Plaintiff failed to meet her burden of showing prejudice. Even though Plaintiff testified
as to her visual problems and a consultative examiner found Plaintiff’s eyesight to be less than
20/20, Plaintiff failed to show that she had any limitations related to her vision especially in light
of her ability to use reading glasses to correct the condition. In addition, the ALJ considered the
evidence in the record concerning any limitations as to Plaintiff’s vision and did not find that
Plaintiff’s vision limited her abilities to perform work. Further, Plaintiff did not specify how her
alleged vision limitations actually impacted her ability to perform the jobs specified by the ALJ.
Rather, Plaintiff speculates that her vision could impact a job.
Lastly, Plaintiff claims that the ALJ should have included some visual limitations in the
hypothetical to the vocational expert. However, an ALJ is only required to ask hypothetical
questions that pose the limitations she found severe, but the ALJ did not find Plaintiff’s visual
limitations to be severe. See Nation v. Barnhart, 153 F. App’x 597, 599 (11th Cir. 2005). After
considering the evidence as a whole including all evidence in the record concerning Plaintiff’s
vision limitations, the Court finds that the record supports the ALJ’s decision that Plaintiff’s
vision did not impact her ability to perform work. Therefore, the ALJ did not err in failing to
develop the record further concerning Plaintiff’s alleged visual limitations.
B. Appeals Council
Plaintiff argues that the Appeals Council erred in failing to reconsider the ALJ’s decision
based on the new evidence submitted by Plaintiff. Plaintiff submitted mental health records from
Bay Care Behavioral Health. The Commissioner responds that the Appeals Council properly
considered the additional evidence and determined that the additional evidence did not provided
a basis for changing the ALJ’s decision.
A plaintiff is generally permitted to present new evidence at each stage of her
administrative process. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007);
20 C.F.R. § 404.900(b). Evidence submitted for the first time to the Appeals Counsel is
determined under a Sentence Four analysis. Id. An Appeals Council must consider new and
material evidence that “‘relates to the period on or before the date of the administrative law judge
hearing decision’ and must review the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.’” Id. (quoting 20 C.F.R.
§§ 404.970(b), 416.1470(b)). New evidence is considered material and thereby warranting a
remand if “‘there is a reasonable possibility that the new evidence would change the
administrative outcome.’” Id.
Plaintiff submitted the records from “BayCare Behavioral Health from May 7, 2013
through September 18, 2013” to the Appeals Council. (Tr. 422-39). Specifically, Plaintiff
focuses on the Psychiatric Evaluation conducted on September 18, 2013, by Fay Cannon, M.D.
(Tr. 422-25). In the Evaluation, Dr. Cannon included a subjective history of Plaintiff’s mental
health as provided by Plaintiff. (Tr. at 422-23). Dr. Cannon observed Plaintiff to have good
grooming and hygiene; to be reasonably pleasant and cooperative; to have a slightly elevated
mood; to have a moderate degree of anxiety; to have coherent and spontaneous speech; to be
goal-directed; to be alert, oriented, and able to attend to the interview; to have fair logic,
judgment, and insight; and to have a good memory. (Tr. at 424). Dr. Cannon assigned a global
assessment functioning of 50. (Tr. at 424). 5 Dr. Cannon considered Plaintiff’s medications and
“Although GAF scores frequently have been cited in Social Security disability benefits
determinations, the Commissioner has declined to endorse the GAF scale for use in the Social
Security and SSI disability programs, and has indicated that GAF scores have no direct
correlation to the severity requirements of the mental disorders listings.” Wilson v. Astrue, 653
recommended some changes. (Tr. at 424). Dr. Cannon concluded that Plaintiff was currently
receiving case management services that should continue, she appeared to present minimal
immediate danger to herself or others through violence, and her prognosis was fair. (Tr. at 425).
To require remand for new evidence submitted to the Appeals Council, Plaintiff must
show that the new evidence submitted to the Appeals Council relates to the period on or before
the date of the administrative law judge’s hearing decision. The ALJ’s decision was decided on
June 24, 2013. The Psychiatric Evaluation was conducted on September 18, 2013, almost three
months after the date of the ALJ’s decision. Dr. Cannon evaluated Plaintiff for the first time on
September 18, 2013 and, thus, has no history of medical treatment with Plaintiff. Dr. Cannon
does not indicate in the Psychiatric Evaluation that the evaluation relates to a period of time prior
to the date of the Psychiatric Evaluation and Plaintiff fails to present any arguments that this
Psychiatric Evaluation relates to a time on or before the ALJ’s decision. After consideration of
the Psychiatric Evaluation, the Court finds that the Psychiatric Evaluation does not relate to a
period of time on or before the ALJ’s hearing decision.
Although the Court finds the Psychiatric Evaluation not chronologically relevant, the
Court will continue its analysis as to whether there is a reasonable possibility that the Psychiatric
Evaluation would change the administrative outcome. Plaintiff asserts that the ALJ found
Plaintiff to have mild limitations in social functioning and moderate limitations in concentration.
Plaintiff concludes that if the ALJ had the additional information from the Psychiatric
Evaluation, there is a reasonable probability that the decision of the ALJ would have been
different. Plaintiff relies mostly on Plaintiff’s subjective complaints to Dr. Cannon concerning
F. Supp. 2d 1282, 1293 (M.D. Fla. 2009) (internal quotation marks omitted) (citing Wind v.
Barnhart, 133 F. App’x 684, 692 (11th Cir. 2005)).
her mood swings, periods of depression, irritability, her reluctance to get out of bed, and her
claim to sleep all day. (Doc. 7 at 7, Tr. at 422).
The ALJ found Plaintiff to have mild restrictions in activities of daily living; mild
difficulties in social functioning; moderate difficulties with concentration, persistence or pace;
and no episodes of decompensation. (Tr. at 18). Dr. Cannon’s Psychiatric Evaluation found
Plaintiff had a moderate degree of anxiety and fair insight. (Tr. at 424). Plaintiff fails to indicate
how Dr. Cannon’s findings – when not including Plaintiff’s subjective complaints – would
change the ALJ’s determination of Plaintiff’s mental limitations. Further, the ALJ considered
Plaintiff’s mental health record, including Plaintiff’s lack of therapy and counseling, as well as
Plaintiff’s subjective complaints. (Tr. at 23). Even though the ALJ found Plaintiff’s credibility
to be poor, the ALJ took Plaintiff’s subjective complaints into consideration and limited
Plaintiff’s RFC to simple, routine, and repetitive type tasks, finding that this limitation was
favorable to Plaintiff. (Tr. at 23). Plaintiff failed to show how Dr. Cannon’s Psychiatric
Evaluation would result in any change to Plaintiff’s RFC or any other finding by the ALJ. The
Court carefully considered Dr. Cannon’s Psychiatric Evaluations and finds that even if it were
chronologically relevant, there is no reasonable possibility that this new evidence would change
the administrative outcome. Therefore, the Court finds that the Appeals Council did not err in its
decision to deny Plaintiff’s request for review. 6
Plaintiff mentions that the Appeals Council failed to provide an explanation for its decision to
deny Plaintiff’s request for review. The Appeals Council is “not required to provide a detailed
rationale for denying review.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 784 (11th
Cir. 2014). Thus, the Appeals Council did not err in failing to explain its decision.
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decisions of the ALJ and the Appeals Council are supported by substantial
evidence and decided upon proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. §405(g). The Clerk is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on September 15, 2016.
Copies furnished to:
Counsel of Record
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