PENNINGTON v. BERRYHILL

Filing 11

MEMORANDUM ORDER - The decision of the Commissioner is AFFIRMED and plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income are DENIED. The clerk is directed to enter judgment in favor of the Commissioner and close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on 2/16/2018. (djb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
RONALD O. PENNINGTON, JR.,
Plaintiff,
v.

Case No. 3:17cv403-CJK

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
______________________________/
MEMORANDUM ORDER
This case is before the court pursuant to 42 U.S.C. § 405(g) for review of the
final determination of the Commissioner of Social Security (“Commissioner”)
denying Ronald Pennington Jr.’s applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34, and
Supplemental Security Income (“SSI”) under Title XVI, 42 U.S.C. §§ 1381-33. The
parties consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)
and Federal Rule of Civil Procedure 73 for all proceedings in this case, including
entry of final judgment. Upon de novo review of the record before the court, I
conclude the Commissioner did not err by declining to remand Pennington’s case to
the ALJ after the Appeals Council received Dr. Groom’s evaluation. The decision

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of the Commissioner, therefore, will be affirmed and the applications for DIB and
SSI denied.
ISSUE ON REVIEW
Mr. Pennington, who will be referred to as claimant, plaintiff, or by name,
claims the Appeals Council erred by failing to remand the case to the ALJ for
consideration of new and material evidence. (Doc. 9).
PROCEDURAL HISTORY
On June 4, 2014, plaintiff protectively filed applications for DIB and SSI,
claiming disability beginning January 1, 2007, due to “head injury/headaches,”
“learning/can’t stay focused,” and asthma. T. 73, 83.1 The Commissioner denied
the applications initially and on reconsideration. T. 93-94, 116-17. After a hearing
on February 23, 2016, the ALJ found claimant not disabled under the Act. T. 26-34,
40. Claimant requested review by the Appeals Council and submitted additional
medical evidence. T. 1-4. The Appeals Council denied the request for further review
on May 24, 2017, and, as a result, the ALJ’s decision became the final determination
of the Commissioner. T. 1-4. The Commissioner’s determination is now before the
court for review.

1

The administrative record filed by the Commissioner consists of 9 volumes (docs. 7-2 through
7-10) and has 493 consecutively-numbered pages. References to the record will be by “T.,” for
transcript, followed by the page number.

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FINDINGS OF THE ALJ
In his written decision, the ALJ made several findings relative to the issues
raised in this appeal:
•

Claimant meets the insured status requirements of the Act through June

30, 2013. T. 28.
•

Claimant has not engaged in substantial gainful activity since January

1, 2007, the alleged onset date. T. 28.
•

Claimant has one severe impairment, asthma. T. 28.

•

Claimant has the residual functional capacity (“RFC”) to perform a

reduced range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).
Claimant can lift/carry 10 pounds frequently and 20 pounds occasionally; sit for a
total of about 6 hours in an 8-hour workday; stand/walk for a total of about 6 hours
in an 8-hour workday; should avoid concentrated exposure to fumes, odors, dusts,
gases, poor ventilation, etc.; and avoid concentrated exposure to hazards (machinery,
heights, etc.). T. 30.
•

Claimant is capable of performing past relevant work as a security

guard. Alternatively, he is capable of performing work as a silver wrapper, electrical
assembler, and merchandise marker. T. 32-33.
•

Claimant has not been under a disability, as defined in the Act, from

January 1, 2007, through May 26, 2016. T. 33.

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STANDARD OF REVIEW
“[A] court may review, under sentence four of section 405(g), a denial of
review by the Appeals Council. When no new evidence is presented to the Appeals
Council and it denies review, then the [ALJ’s] decision is necessarily reviewed as
the final decision of the Commissioner, but when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). “[T]he Appeals Council ‘must
consider new, material, and chronologically relevant evidence’ that the claimant
submits.” Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir.
2015) (quoting Ingram, 496 F.3d at 1261).

“[U]nder the [Social Security]

regulations, whether evidence [submitted to the Appeals Council] meets the new,
material, and chronologically relevant standard ‘is a question of law subject to . . .
de novo review.’” Id. at 1321 (quoting Threet v. Barnhart, 353 F.3d 1185, 1191
(10th Cir. 2003)).
FACT BACKGROUND AND MEDICAL HISTORY
At the hearing before the ALJ, Mr. Pennington testified about his health, daily
activities, and work history. He has an 11th-grade education and is married with 2
children. T. 44. He can read and write. T. 45. Due to breathing problems, he
stopped working full-time in landscaping in August 2006. T. 45-46. He believes he

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is disabled due to the breathing problems and headaches. T. 46. The headaches
occur 35 to 40 times a month, and usually last from 3 to 4 hours. T. 48. When the
headaches begin, plaintiff stops what he is doing and lays down.

T. 48-49.

Medication offers only partial relief. T. 50.
Claimant can bathe and dress himself, as well as shop for groceries, cook, and
perform chores. T. 50. He experiences frustration related to his inability to complete
tasks. T. 55. Due to difficulties with concentration, he can only read a newspaper
for 10 minutes before needing a break. T. 55.
In September 1990, at age 16, plaintiff suffered a brain injury in a fourwheeler accident. T. 43, 56. He remained in a coma for over 2 weeks and underwent
about a year of rehabilitation. T. 56. After the accident, plaintiff says mentally
“everything wasn’t quite as sharp as it was before.” T. 56-57. At the hearing,
plaintiff denied experiencing memory problems or problems with math and reading.
T. 57.
The ALJ issued the decision denying benefits on May 26, 2016. T. 34. On
June 10, 2016, Kevin Groom, Ph.D., conducted a neuropsychological evaluation of
claimant. T. 19-21. Mr. Pennington reported the details of the four-wheeler accident
and his recovery. T. 19. At the time of the evaluation, plaintiff was participating in
vocational rehabilitation due to problems running his landscaping business. T. 19.
The business included “irrigation and landscaping jobs but as the jobs became bigger

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and more complex, [plaintiff] could not manage the financial aspects of the
business.” T. 19. A mental status examination revealed claimant was “disoriented
to the exact date but oriented in all other spheres.” T. 20. Intelligence testing showed
a verbal comprehension score of 76, a perceptual reasoning score of 71, a working
memory score of 63, a processing speed score of 71, and a full-scale IQ of 65. T.
21. The results placed claimant in “the mild range of intellectual disability.” T. 21.
Mr. Pennington asked the Appeals Council to review the ALJ’s May 26, 2016,
decision and submitted Dr. Groom’s June 10, 2016, evaluation to support the
request. T. 14-16, 19-21, 189-90. The Appeals Council denied the request for
review on May 24, 2017; it concluded the evaluation did “not relate to the period at
issue” and did “not affect the decision about whether [claimant was] disabled
beginning on or before May 26, 2016.” T. 1-2.
ANALYSIS
“With a few exceptions, the claimant is allowed to present new evidence at
each stage of this administrative process.” Ingram, 496 F.3d at 1261; see also 20
C.F.R. §§ 404.900(b), 416.1400(b). “If a claimant presents evidence after the ALJ’s
decision, the Appeals Council must consider it if it is new, material, and
chronologically relevant.” Hargress v. Soc. Sec. Admin., Comm’r, 874 F.3d 1284,
1290 (11th Cir. 2017) (citations omitted). “Evidence is material if a reasonable
possibility exists that the evidence would change the administrative result.” Id. at

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1290-91. “New evidence is chronologically relevant if it relates to the period on or
before the date of the [ALJ’s] hearing decision.” Id. at 1291 (quotation omitted).
“The Appeals Council must grant the petition for review if the ALJ’s ‘action,
findings, or conclusion is contrary to the weight of the evidence,’ including the new
evidence.” Id. (quoting Ingram, 496 F.3d at 1261).
Mr. Pennington says Dr. Groom’s evaluation is chronologically relevant
because the cognitive limitations identified by the evaluation create “a rebuttable
presumption that those limitations arose before age 22.” (Doc. 9, p. 8) (citing
Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)). The Commissioner disagrees,
claiming the evaluation is not chronologically relevant because Dr. Groom did not
review plaintiff’s past medical records and the evaluation shows plaintiff’s condition
worsened after the ALJ’s decision.
The Commissioner correctly notes Dr. Groom’s evaluation advances certain
findings that appear nowhere in the medical evidence presented to the ALJ. For
example, the evidence predating the ALJ’s decision indicates claimant was
cooperative and oriented to person, place, and time. T. 329, 335-36, 374. Dr.
Groom, however, noted claimant was “disoriented to the exact date” and plaintiff
reported experiencing “some problems with having a short temper.” T. 19-20.
Furthermore, the evaluation does not indicate Dr. Groom reviewed any of plaintiff’s
medical records.

Dr. Groom also stated he “was unable to speak to any of

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[claimant’s] family members who may have known the course of [claimant’s]
rehabilitation and describe the changes in personality and cognitive abilities.” T. 21.
While the argument that plaintiff’s condition worsened is not entirely
persuasive, the Commissioner does distinguish plaintiff’s case from cases where
evidence submitted to the Appeals Council was found to be chronologically relevant.
Cf. Washington, 806 F.3d at 1322 (finding opinion of doctor who examined claimant
after ALJ’s decision chronologically relevant when claimant told doctor he
experienced the same symptoms throughout life, doctor reviewed medical records
predating ALJ’s decision that documented those symptoms, and there was no
assertion or evidence claimant’s cognitive skills declined after the ALJ’s decision);
see also Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553-54 (11th Cir. 2016)
(finding additional evidence was not chronologically relevant when nothing
indicated medical provider reviewed past medical records and evidence
demonstrated a worsening of symptoms after the ALJ’s decision).
Nevertheless, even assuming the evaluation is chronologically relevant,
plaintiff has not shown it is material—i.e., a reasonable possibility exists that the
evidence would change the ALJ’s decision. In his decision, the ALJ stated:
The claimant alleges residuals from closed head injury [resulting] from
an accident in September 1990. Although the evidence in the 1990’s
document some cognitive deficits related to the accident, there are no
objective findings of a brain disorder or medically assigned limitations
due to such condition that is based on objective evidence of record.

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Accordingly, the evidence does not establish disability based on a
closed head injury, on or before June 30, 2013, as a severe impairment.
T. 32 (internal citations omitted).

Plaintiff suggests Dr. Groom’s evaluation

provides the objective evidence of a brain disorder the ALJ noted was lacking.
Contrary to Mr. Pennington’s claim, Dr. Groom’s evaluation does not
contradict the ALJ’s conclusions regarding plaintiff’s RFC and ability to work.
First, claimant has not articulated how the evaluation undermines the ALJ’s
determination claimant could perform his past relevant work as a security guard.2
Although Dr. Groom diagnosed major neurocognitive disorder and testing yielded
results suggesting mild intellectual disability, these findings do not necessarily
correspond to any work-related mental limitations. See Moore v. Barnhart, 405 F.3d
1208, 1213 n.6 (11th Cir. 2005) (“[T]he mere existence of these impairments does
not reveal the extent to which they limit [the] ability to work or undermine the ALJ’s
determination in that regard.”). Moreover, plaintiff’s implicit claim that these
limitations are longstanding undermines his position, as set out below.
Assuming the cognitive limitations were present since before plaintiff turned
22, the record shows after reaching that age he was able to work full-time as a

2

Plaintiff does not contend the ALJ’s decision—based on the record before the ALJ as of May 26,
2016—was unsupported by substantial evidence. That argument is deemed abandoned. See
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will not
be addressed.”).
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security guard and manage a landscaping business. T. 45-46, 215. Claimant does
not argue, or identify medical evidence suggesting, he experienced a decline in
mental functioning during, or subsequent to, the period he was able to perform these
jobs. Claimant’s ability to perform these tasks despite any cognitive limitations
supports the ALJ’s determination that claimant was not disabled.
Furthermore, Dr. Groom did not indicate Mr. Pennington was incapable of
working. Dr. Groom stated:
Despite all of his limitations, he has shown capability of operating a
small business for several years. Ultimately management of the
business became too complex. I do think that he likely took on projects
that were beyond his scope to handle. If he were to try to manage [a]
landscape business again, he would need to keep this very small with
just a few employees and would need assistance from a small business
development center. If he chooses not to try this again, he would
certainly meet criteria for social security disability by virtue of his
cognitive deficits.
T. 21. 3 Similarly, Dr. Groom declared, “If [plaintiff] is going to apply for work, he
would likely need help with résumé building and interviewing skills. His biggest
asset is his work history and practical skills.” T. 21.
These statements do not suggest Dr. Groom believed claimant was incapable
of performing substantial gainful activity. Read in the light most favorable to
plaintiff, the statements simply reflect Dr. Groom’s belief that plaintiff may struggle
with the complex organizational aspects of running a small business. Nothing in Dr.

3

Dr. Groom does not explain how plaintiff’s cognitive deficits meet the criteria for disability.

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Groom’s evaluation casts doubt on the ALJ’s finding that Mr. Pennington can
perform the mental tasks required in semiskilled work as a security guard, or
unskilled work as a silver wrapper, electrical assembler, or merchandise marker.
Plaintiff relies on Lipscomb v. Comm’r of Soc. Sec., 199 F. App’x 903 (11th
Cir. 2006) to argue remand is appropriate. Lipscomb, however, is distinguishable
from the present case. The new evidence in Lipscomb, a questionnaire completed
by an orthopedic surgeon after the ALJ’s decision, came from a treating source; Dr.
Groom, however, examined claimant on only one occasion. See 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2) (noting treating source opinions are generally given
more weight than examining source opinions, because treating sources “are likely to
be the medical professionals most able to provide a detailed, longitudinal picture of
your medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from
reports of individual examinations”). And unlike Dr. Groom, the doctor in Lipscomb
reviewed a variety of medical records predating the ALJ’s decision and expressly
“indicated that his questionnaire answers related to his perception of Lipscomb’s
condition as it existed prior to the ALJ’s decision.” Lipscomb, 199 F. App’x at 907.
Most importantly, the ALJ in Lipscomb had “heavily relied” on the surgeon’s
previous medical reports and opinions when determining the claimant’s RFC. Id.

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Because the facts in Lipscomb are distinguishable from those present here, it does
not support Mr. Pennington’s request for remand.
In sum, plaintiff has not shown a reasonable probability Dr. Groom’s
evaluation would undermine the conclusion that the denial of benefits was supported
by substantial evidence. See Ingram, 496 F.3d at 1262 (“[W]hen a claimant properly
presents new evidence to the Appeals Council, a reviewing court must consider
whether that new evidence renders the denial of benefits erroneous.”). Because the
Groom assessment would not change the ALJ’s decision, the Appeals Council did
not commit reversible error by denying review.
Accordingly, it is ORDERED:
1.

The decision of the Commissioner is AFFIRMED and plaintiff’s

applications for Disability Insurance Benefits and Supplemental Security Income are
DENIED.
2.

The clerk is directed to enter judgment in favor of the Commissioner

and close the file.
DONE AND ORDERED this 16th day of February, 2018.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No. 3:17cv403-CJK