RAY v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

ORDER remanding the case for further administrative proceedings. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 10-2-18. (bdd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
TIM RAY,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CASE NO. 3:18-CV-6-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law Judge’s
(“ALJ’s”) determination, denied Plaintiff’s applications for disability insurance benefits
finding that he is not disabled within the meaning of the Social Security Act and
Regulations. Plaintiff contends that the Commissioner’s decision was in error and seeks
review under the relevant provisions of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). All
administrative remedies have been exhausted. Both parties filed their written consents for
all proceedings to be conducted by the United States Magistrate Judge, including the entry
of a final judgment directly appealable to the Eleventh Circuit Court of Appeals pursuant
to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).

“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner. 1 Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s factual
findings. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). However, even
if the evidence preponderates against the Commissioner’s decision, it must be affirmed if
substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that he is unable to perform his
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden is
a heavy one and is so stringent that it has been described as bordering on the unrealistic.
Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). 2 A Plaintiff seeking Social

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Credibility determinations are left to the Commissioner and not to the courts. Carnes v. Sullivan,
936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the courts to
resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (per
curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered prior to
October 1, 1981.
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Security disability benefits must demonstrate that he suffers from an impairment that
prevents him from engaging in any substantial gainful activity for a twelve-month period.
42 U.S.C. § 423(d)(1). In addition to meeting the requirements of these statutes, in order
to be eligible for disability payments, a Plaintiff must meet the requirements of the
Commissioner’s regulations promulgated pursuant to the authority given in the Social
Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working. Id. If not, the Commissioner determines whether the Plaintiff has an impairment
which prevents the performance of basic work activities. Id. Second, the Commissioner
determines the severity of the Plaintiff’s impairment or combination of impairments. Id.
Third, the Commissioner determines whether the Plaintiff’s severe impairment(s) meets or
equals an impairment listed in Appendix 1 of Part 404 of the Regulations (the “Listing”).
Id. Fourth, the Commissioner determines whether the Plaintiff’s residual functional
capacity can meet the physical and mental demands of past work. Id. Fifth and finally, the
Commissioner determines whether the Plaintiff’s residual functional capacity, age,
education, and past work experience prevent the performance of any other work. In
arriving at a decision, the Commissioner must consider the combined effects of all of the
alleged impairments, without regard to whether each, if considered separately, would be
disabling. Id. The Commissioner’s failure to apply correct legal standards to the evidence
is grounds for reversal. Id.
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ADMINISTRATIVE PROCEEDINGS
Plaintiff Timothy A. Ray filed an application for disability insurance benefits on
August 1, 2014, alleging he became disabled to work on September 8, 2008. His claim
was denied initially on October 30, 2014, and upon reconsideration on February 4, 2015.
He timely requested an evidentiary hearing before an ALJ on March 18, 2015, and a
hearing was held on November 14, 2016. Plaintiff appeared at the hearing with his attorney
and gave testimony as did an impartial vocational expert (“VE”). Tr. 18. On January 12,
2017, the ALJ issued an unfavorable decision denying his claims. Tr.15-30. Plaintiff
sought review from the Appeals Council and submitted additional medical evidence to
support his request. The Appeals Council denied review on November 6, 2017. Tr. 1214, 1-6. Having exhausted the administrative remedies available to him under the Social
Security Act, Plaintiff brings this action seeking judicial review of the Commissioner’s
final decision denying his application for benefits.
STATEMENT OF FACTS AND EVIDENCE
Plaintiff’s insured status for disability insurance benefits expired on September 30,
2011, when he was forty-nine years old. The ALJ determined he was an individual “closely
approaching advanced age.” 3 Finding 7, Tr. 24; 20 C.F.R. § 404.1563. He has past relevant
work as a product assembler and landscape laborer. Finding 6, Tr. 24.

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The Court notes that the regulations define a person “closely approaching advanced age” as one
aged 50-54 years old. 20 C.F.R. § 404.1563(d). However, the Court believes the ALJ likely found
Plaintiff to be in the “closely approaching advanced age” category based on the regulatory
statement that the Commissioner “will not apply the age categories mechanically in a borderline
situation.” 20 C.F.R. § 404.1563(b).
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In conducting the five-step sequential analysis for the determination of disability set
forth in 20 C.F.R. § 404.1520(a) the ALJ found at step two that Plaintiff has the severe
impairments of episodic pancreatitis, diabetes, hypertriglyceridemia, hypertension,
episodic gastritis, gastroesophageal reflux disease and a history of left scapular pain. 20
C.F.R. § 404.1520(c); Finding 3, Tr. 20. At step three, she found that these impairments,
considered both alone and in combination with one another, neither meet nor medically
equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding 4, Tr. 21.
Between steps three and four, the ALJ formulated a residual functional capacity assessment
(“RFC”) which permits Plaintiff to engage in light work as defined in 20 C.F.R. §
404.1567(b) with additional exertional, postural, and environmental limitations. Finding
5, Tr. 21-24. At step four, she found that this RFC prevents Plaintiff from resuming his
past relevant work. Finding 6, Tr. 24. The ALJ found, at step five, that there are jobs
available to Plaintiff in the national economy which he can perform within his restricted
RFC and therefore found him to be not disabled. Findings 10 and 11, Tr. 24-25.
DISCUSSION
Plaintiff’s only assertion of error is that the Appeals Council erred in not reviewing
his claim after he submitted what he contends is new, material and chronologically relevant
opinion evidence from his treating physician which he says creates a “reasonable
possibility” of changing the administrative result. Pl.’s Br. 1, ECF No. 11.

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Commissioner responds that her regulations require review and remand only when new
evidence that is material and chronologically relevant creates a “reasonable probability”
that it would change the outcome of the decision. Def.’s Br. 4, ECF No. 12.
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The evidence at issue is a “Chronic Pancreatitis Medical Assessment Form”
prepared on March 2, 2017, by Veronica Patterson, M.D., who treated Plaintiff during the
relevant period of September 2008 through September 2011. Tr. 12-14. In denying review,
the Appeals Council referenced this evidence but, as its only basis for not considering it,
stated it “does not show a reasonable probability that it would change the outcome of the
decision.” Tr. 2.
The Court agrees with the Commissioner that the applicable standard for granting
review by the Appeals Council is the “reasonable probability” that the outcome of the case
would be different if the new evidence were considered. The Commissioner’s rules make
that clear and were made effective January 17, 2017. Ensuring Program Uniformity at the
Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg.
90987-01, 2016 WL 7242991 (Dec. 16, 2016); 20 C.F.R. § 404.970(a)(5). However, the
Court finds that were this new evidence properly considered, there is a reasonable
probability that the administrative result would be different.
In her decision, the ALJ stated that there were “no treating source opinions relating
to the claimant’s capacity for work or suggestive of disability” in the record before her. Tr.
23. The new evidence is exactly that. Further, the longitudinal record of Dr. Patterson’s
treatment of Plaintiff is long and extensive. Dr. Patterson’s records are well-supported by
objective testing over a period of at least three years, all of which fall within the period
under adjudication. She provides the evidence the ALJ expressly found missing and her
evidence is, under the Commissioner’s regulations, entitled to “great” or “controlling
weight” when well-supported by other substantial evidence. 20 C.F.R. § 1527(d)(2); SSR
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96-2p, 1996 WL 374188 (July 2, 1996). Given the ALJ’s statement about the lack of
evidence, offered by a treating source, of the limiting effects of the impairments she found
Plaintiff to have, evidence of those limiting effects from the doctor who has cared for
Plaintiff and treated those impairments is more likely than not to cause the ALJ to find
Plaintiff disabled. The Appeals Council erred in its decision and remand to the
Commissioner for further proceedings is ordered.
CONCLUSION
For the reasons explained above, this case is remanded for further administrative
proceedings consistent with this opinion.
SO ORDERED, this 2nd day of October, 2018.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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