Terrell v. Anderson et al
Filing
31
ORDER Affirming the decision of the Commissioner. Signed by Magistrate Judge Alan J. Baverman on 9/24/18. (hfm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LARRY T.,
Plaintiff,
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,1
Defendant.
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CIVIL ACTION FILE NO.
1:15-cv-00960-AJB
O R D E R A N D O P I N I O N2
Plaintiff brought this action pursuant to §§ 205(g) and 1631(c) of the Social
Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review
of the final decision of the Commissioner of the Social Security Administration (“the
Commissioner”) denying his application for Supplemental Security Income (“SSI”)
1
Nancy A. Berryhill was the Acting Commissioner of Social Security
beginning January 23, 2017. However, her acting status ended as a matter of law
pursuant to the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. Pursuant to
Fed. R. Civ. P. 17(d), a public officer who sues or is sued in an official capacity may
be designated by official title rather than by name. Since Ms. Berryhill no longer is the
Acting Commissioner, the Clerk is DIRECTED to identify Defendant by the official
title rather than by name.
2
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. (See [Doc. 25] and Dkt. Entry dated 9/19/2017). Therefore, this Order
constitutes a final Order of the Court.
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and Disability Insurance Benefits (“DIB”).3 For the reasons set forth below, the
undersigned
AFFIRMS
the
final
decision
of
the
Commissioner
and
DENIES Plaintiff’s request for remand pursuant to sentence six of 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
On February 3, 2011, Plaintiff filed his application for SSI and DIB alleging a
disability onset date of October 15, 2008. [Record (hereinafter “R”) 136-52]. These
claims were denied initially on June 22, 2011, and upon reconsideration on
November 10, 2011. [R87-107]. Thereafter, Plaintiff filed a written request for
hearing. [R108]. Plaintiff appeared and testified, unrepresented, at a hearing before an
Administrative Law Judge (“ALJ”), where a vocational expert (“VE”) also testified.
3
Title XVI of the Act, 42 U.S.C. § 1381, et seq., provides for SSI for the
disabled, whereas Title II of the Social Security Act provides for federal DIB,
42 U.S.C. § 401, et seq. The relevant law and regulations governing the determination
of disability under a claim for DIB are nearly identical to those governing the
determination under a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4
(11th Cir. June 2, 2005) (citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4
(11th Cir. 1986)). Title 42 U.S.C. § 1383(c)(3) renders the judicial provisions of
42 U.S.C. § 405(g) fully applicable to claims for SSI. In general, the legal standards
to be applied are the same regardless of whether a claimant seeks DIB, to establish a
“Period of Disability,” or to recover SSI. However, different statutes and regulations
apply to each type of claim. Many times parallel statutes and regulations exist for DIB
and SSI claims. Therefore, citations herein should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations of
statutes or regulations found in quoted court decisions.
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[R32-86]. On June 28, 2013, the ALJ denied Plaintiff’s application for disability
benefits. [R12-28]. Plaintiff then filed an appeal with the Appeals Council, which was
denied on February 5, 2015, making the ALJ’s decision the final decision of the
Commissioner. [R1-3].
Plaintiff subsequently filed this action on April 2, 2015, seeking review of the
Commissioner’s decision. [Docs. 1-1, 5]. After service of process, the answer and
transcript were filed on August 11, 2017. [Docs. 18, 19]. On September 19, 2017,
Plaintiff, now represented, filed a brief arguing for reversal of the Commissioner’s
decision, [Doc. 26], and on November 13, 2017, the Commissioner filed a response in
support of the decision, [Doc. 28], to which Plaintiff replied, [Doc. 29]. The matter is
now before the Court upon the administrative record, and the parties’ pleadings and
briefs,4 and it is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).
II.
PLAINTIFF’S CONTENTIONS
Plaintiff claims that reversal and remand are required because:
1.
The hypothetical which the ALJ posed to the VE
insufficiently defined Plaintiff’s limitations.
4
Neither party requested oral argument. (See Dkt.).
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2.
The ALJ failed to develop a full and fair record.
3.
The Court should remand under sentence six of 42 U.S.C.
§ 405(g) so that the Commissioner can address new and
material evidence.
[Doc. 26 at 3].
III.
STATEMENT OF FACTS
A.
Background
Plaintiff was born in 1957 and was 51 years old on the alleged onset date.
[R136]. He completed high school and two years of college. [R189]. Plaintiff worked
in the past as a construction laborer, telecommunication worker, and sales person. [Id.].
He alleged disability due to pain in his lower back and both legs, impairment of left
index finger, and depression. [R188].
B.
Lay testimony
Plaintiff was unrepresented during the administrative hearing and, although the
ALJ explained that he had the right to request a continuance in order to obtain
representation, he stated that he wished to waive his right to representation and go
forward with the hearing. [R34-36].
Plaintiff testified that he was unable to work due to pain in his left leg, lower
back, and right hip. [R49-50]. He noted that he could not sit or stand for more than an
4
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hour at a time. [R49]. Plaintiff also stated that he developed glaucoma while working
in his last job as a telemarketer. [R52]. He explained that if he tried to stare at a
computer for too long, a headache develops over both eyes. [R54].
In response to questions about his earnings for calendar year 2009, Plaintiff
indicated that he had not worked since 2008, but the ALJ noted that his tax records
showed $11,026 in self-employment income for 2009. [R45-48]. The ALJ asked
Plaintiff to contact the Internal Revenue Service to clarify this issue. [R82-85]. After
the hearing, Plaintiff sent the ALJ a copy of his tax return for 2009, along with a letter
clarifying his testimony at the hearing. [R178-83, 246]. He wrote that he did work for
a telemarketing company for the first four months of 2009. [R246]. He was terminated
because he started taking too many days off of work due to his pain. [Id.]. He stated
that he had testified incorrectly because his mother had died that same year and he was
confused about the timeline. [Id.].
C.
Medical records
1.
Treatment records
In October 2008, Plaintiff saw Dr. Shantu Kumar, a primary care physician, at
the Atlanta VA Medical Center (“the VA”). [R496-502]. He reported that he was
feeling depressed over his mother’s death earlier that year and described chronic pain
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in his left leg that began in 1974, when he was serving in the Navy. [R496]. He was
referred for a mental health evaluation and was put on a trial of Tramadol5 for his leg
pain. [R500-01].
Plaintiff returned for a follow-up in January 2010. [R408-10]. He requested
medications to treat his leg pain. [R409]. Plaintiff also complained of insomnia, and
Dr. Kumar gave him a prescription for Trazodone.6 [Id.]. Other problems addressed
during this visit included blurred vision and hearing loss. [R411].
In December 2010, Plaintiff saw Dr. Diana Sodiq, a rehabilitation specialist.
[R322-23]. He noted that he had pain in his left shin that occasionally radiated to his
thigh and his leg. [Id.]. A physical examination showed that he had a normal gait and
a full range of motion in his spine. [R323]. Dr. Sodiq discussed further workups, such
5
Ultram (tramadol) is in a class of medications called opiate (narcotic)
analgesics and is used to relieve moderate to moderately severe pain. MedlinePlus,
Tramadol, http://medlineplus.gov/druginfo/meds/a695011.html (last visited 9/23/18).
6
Trazodone is a serotonin modulator typically used to treat depression.
MedlinePlus, Trazodone, https://medlineplus.gov/druginfo/meds/a681038.html (last
visited 9/23/18).
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as a CT scan7 or an EMG,8 but Plaintiff’s main request was for pain medication.
[R324]. He was reluctant to try Gabapentin9 because he did not want a “nerve
medication,” but he endorsed a good response to Percocet10 in the past. [Id.]. Dr. Sodiq
prescribed Tramadol and noted that Plaintiff would be switched to hydrocodone if the
Tramadol was not effective. [Id.].
During 2011, Plaintiff continued to follow up at the VA for medical care.
In January, a physical therapist trained him to use a cane for ambulation. [R316-17].
7
Computed tomography (“CT”) imaging uses x-ray equipment to make
cross-sectional pictures of the body.
MedlinePlus, CT Scans,
http://www.nlm.nih.gov/medlineplus/ctscans.html (last visited 9/23/18).
8
“EMG” is an abbreviation for electromyogram. PDR Med. Dictionary 569
(1 ed. 1995). Electromyography measures the response of muscles and nerves to
electrical activity. It is used to help determine conditions that might be causing muscle
weakness, such as nerve disorders.
KidsHealth, Electromyography,
http://kidshealth.org/parent/general/sick/emg.html (last visited 9/23/18).
st
9
Gabapentin, also known by the brand name Neurontin, is often used to
help control certain types of seizures in patients who have epilepsy. Gabapentin is also
used to relieve the pain of postherpetic neuralgia (the burning, stabbing pain or aches
that may last for months or years after an attack of shingles) and restless legs syndrome.
MedlinePlus, Gabapentin, https://medlineplus.gov/druginfo/meds/a694007.html (last
visited 9/23/18).
10
Percocet is a combination of oxycodone and acetaminophen and is a
narcotic analgesic used to relieve moderate-to-severe pain. MedlinePlus, Oxycodone,
https://medlineplus.gov/druginfo/meds/a682132.html (last visited 9/23/18).
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The next month, an x-ray showed that Plaintiff had mild spondylosis11 in his lumbar
spine at L3-L4. [Id.]. He was given a prescription for oxycodone.12 [R452-53].
In March 2011, Plaintiff was evaluated for admission into a VA program
designed to assist homeless veterans. [R427-30, 432-37]. A social worker noted that
he was casually dressed and had a well-kept appearance. [R434]. He denied any
suicidal ideation or psychosis. [Id.]. He reported feeling some depression over the
death of his mother three years previously. [R435]. However, his mood was euthymic
and his affect was appropriate. [R436]. The social worker noted that Plaintiff “cannot
work the way he likes secondary to his leg.” [Id.]. The next month, Plaintiff was given
a housing voucher. [R568].
In August 2011, Plaintiff saw Dr. Andrew Geller for treatment of his lower back
pain. [R551]. Plaintiff noted that the pain was worse with bending, side flexion, and
extension. [Id.]. A physical examination showed that Plaintiff had 5/5 strength in his
upper and lower extremities, and +2 deep tendon reflexes. [Id.]. His paraspinal
11
“Spondylosis” refers to stiffening vertebra and is “often applied
nonspecifically to any lesion of the spine of a degenerative nature.” PDR Med.
Dictionary 1656 (1st ed. 1995).
12
Oxycodone is a narcotic used to relieve pain. MedlinePlus, Oxycodone,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682132.html (last visited
9/23/18).
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muscles13 were tender to palpitation. [Id.]. In addition, he had a reduced range of
motion in his spine due to muscle spasms. [Id.]. Dr. Geller prescribed Sulindac14 and
a TENS unit15 trial for his low back, and ordered an MRI of Plaintiff’s lumbar spine.16
[Id.].
Over the next month, Plaintiff participated in several physical therapy sessions,
with good results. [R546-50]. Later in August, Plaintiff checked in with a VA social
worker, Ms. Mali Collis-Abdulla. [R545]. He stated that he was doing well and
13
Paraspinal means adjacent to the spinal column. See Merriam-Webster
M e d i c a l
D i c t i o n a r y ,
P a r a s p i n a l ,
http://www2.merriam-webster.com/cgi-bin/mwmedsamp?book=Medical&va=sample
(last visited 9/23/18).
14
Sulindac is a nonsteroidal anti-inflammatory drug (NSAID) used to treat
mild to moderate pain and help relieve symptoms of arthritis (e.g., osteoarthritis and
rheumatoid arthritis) or acute gout, such as inflammation, swelling, stiffness, and joint
p a i n
s u c h
a s
s p o n d y l i t i s .
S u l i n d a c ,
https://www.mayoclinic.org/drugs-supplements/sulindac-oral-route/description/drg20069763 (last visited 9/23/18).
15
“TENS” is an acronym for transcutaneous electric nerve stimulation,
which is a method to reduce pain with electrical impulses. Nat’l Osteoporosis Found.,
Protecting Your Fragile Spine 11, available at
https://cdn.nof.org/wp-content/uploads/2016/02/Protecting-Your-Fragile-Spine.pdf (last
visited 9/23/18).
16
A lumbar magnetic resonance imaging scan is a non-invasive way to create
detailed pictures of the part of the spine that runs though the lower back. See
M e d l i n e P l u s ,
L u m b a r
M R I
s c a n ,
http://www.nlm.nih.gov/medlineplus/ency/article/007352.htm (last visited 9/23/18).
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“continues to rent out his truck to people moving” but that the people sometimes do not
realize that he personally is not going to help them move. [Id.].
In October 2011, Plaintiff told Ms. Collis-Abdulla that he was doing well and did
not have any suicidal or homicidal ideation. [R726]. He noted that he is often not at
home because he rents his truck out to other people. [Id.]. Plaintiff was alert and welloriented, and spoke with a normal rate, tone, and volume. [R727].
In November 2011, Plaintiff saw VA rehabilitation specialist, Dr. Sushma
Chandan, and VA resident, Dr. Rajeev Valvani. [R715]. He continued to complain of
back pain that was radiating into his left leg. [Id.]. A recent MRI showed that he had
an annular tear and disc protrusion at L5-S1, which was contacting the descending S1
nerve root. [R717]. A physical examination showed that Plaintiff had a normal gait
pattern and was able to heel and toe walk. [R718]. He had increased pain with
flexion17 and extension of his lumbar spine. [Id.]. He had 5/5 strength in his lower
extremities, and his sensation was intact to light touch. [Id.]. Plaintiff told the doctors
that the only medication that had worked for his pain was oxycodone. [Id.]. A drug
screen performed during this visit tested positive for marijuana. [R712]. After learning
17
Flexion refers to the bending of the spine “so that the concavity of the
curve looks forward.” PDR Med. Dictionary 663 (1st ed. 1995).
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of the results, Plaintiff acknowledged that he used marijuana to control his pain “about
once a month or so.” [R713]. He explained that all of the pain medications which he
had tried except for Lortab18 caused him to have “horrible dreams.” [Id.]. Due to the
positive drug test, Dr. Chandan declined to prescribe any pain medications. [R707].
In December 2011, Plaintiff told Ms. Collis-Abdulla that he was planning to put
his truck up for sale due to financial issues. [R705]. Otherwise, he was doing well.
[Id.]. Plaintiff noted that he continued to earn funds from renting the truck out, and did
not want to do anything to jeopardize his application for VA disability benefits. [Id.].
In a January 2012 follow-up appointment with Dr. Chandan, Plaintiff
complained of an aching, intermittent pain in his groin and hip. [R701]. Physical
examination showed that Plaintiff had sacroiliac tenderness and a limited range of
motion in his right hip. [R701-02]. He had normal muscle strength and normal deep
tendon reflexes in his legs. [R702]. Dr. Chandan prescribed Lodine.19 [Id.]. Later that
18
Lortab is an opioid pain medication that contains a combination of
acetaminophen and hydrocodone and is used to relieve moderate to severe pain.
Drugs.com, Lortab, http://www.drugs.com/lortab.html (last visited 2/23/18).
19
Lodine (etodolac) is an NSAID that works by reducing hormones that
cause inflammation and pain in the body. Lodine is used to treat mild to moderate pain,
o s t e o a r t h r i t i s , o r r h e u ma t o i d ar t h r i t i s .
Dr u g s . c o m, L o d i n e ,
https://www.drugs.com/lodine.html (last visited 9/24/18).
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month, Plaintiff cancelled a mental health appointment because had “a chance to drive
a car to Cincinnati and make a little money.” [R696]. In February, Plaintiff told
Ms. Collis-Abdulla that he had “a job today loading a mattress at Goodwill.” [R689].
He denied any significant mental health problems. [R690].
In April 2012, Plaintiff visited the VA for x-rays of his lower extremities.
[R627]. The imaging showed small bilateral bone spurs in both of Plaintiff’s ankles.
[Id.]. In addition, there were mild degenerative changes in the bones of both of his feet.
[R628-29].
Plaintiff returned to the VA a couple of weeks later for an ophthalmology checkup. [R673-77, 756-60]. An examination showed that he had a moderate degree of
glaucoma, which was worse on the right eye as compared to the left. [R676, 759]. He
also had a developing cataract in the right eye but that it did not affect his activities of
daily living. [R676, 760]. Plaintiff was given a prescription for Latanoprost.20 [R676,
759].
20
Latanoprost comes as eye drops which are used to treat glaucoma (a
condition in which increased pressure in the eye can lead to gradual loss of vision) and
ocular hypertension (a condition which causes increased pressure in the eye).
Latanoprost is in a class of medications called prostaglandin analogs. It lowers pressure
in the eye by increasing the flow of natural eye fluids out of the eye.
https://medlineplus.gov/druginfo/meds/a697003.html (last visited 9/23/18).
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Later that month, Plaintiff told Ms. Collis-Abdulla that he was “doing OK.”
[R755]. He reported having “a little business here and there moving furniture.” [Id.].
His attention and concentration were sufficient, and his memory was intact. [R756].
He had a normal mood, an appropriate affect, and relevant thought processes. [Id.].
His judgment was intact, and his insight was fair. [Id.].
In August 2012, Plaintiff told Ms. Collis-Abdulla that he was doing well.
[R648]. He had visited his sister the previous month and was looking forward to
returning to Ohio for his niece’s wedding. [R648-49]. Ms. Collis-Abdulla noted that
Plaintiff was dressed appropriately and was neatly groomed. [R649]. His memory was
intact and his attention and concentration were sufficient. [Id.]. His thought content
was relevant and his judgment was within normal limits. [Id.]. His insight into his
condition was fair. [Id.].
The next month, Plaintiff told Ms. Collis-Abdulla about his niece’s wedding.
[R647]. He stated that it had been hard for him to visit Ohio since his mother had died.
[Id.]. His living situation was under control, and he was enjoying his relationship with
his family. [Id.]. A mental status examination was within normal limits. [R647-48].
Finally, in November 2012, Plaintiff returned to the VA with complaints of eye
pain. [R732-33]. He stated that his pain had started after he ran out of eye drops the
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prior week. [R732]. The attending physician renewed Plaintiff’s prescription for
latanoprost and referred him to the eye clinic for further treatment. [R733]. The notes
from this visit show that Plaintiff was using a cane for balance. [Id.].
2.
Consultative examinations
Dr. Dianne Bennett-Johnson saw Plaintiff for a consultative examination in
April 2011. [R249-56]. His chief complaints were an old left leg injury and worsening
lower back pain. [R253]. Plaintiff noted that he was given a cane at the VA and used
it both inside and outside of his home. [Id.]. Plaintiff also stated that his left index
finger was non-functional due to an injury that he suffered in 1996. [Id.]. In addition,
he described a history of depression. [R253-54].
On examination, Dr. Bennett-Johnson noted that Plaintiff was not in acute
distress. [R254]. He was walking with a single-point cane, but was able to ambulate
without it. [Id.]. He had a limited range of motion in his lumbar spine, and his left
index finger was fixed in a flexed position. [R255]. Plaintiff’s mood appeared to be
depressed and irritable. [Id.]. Plaintiff walked with a slow gait that was slightly listing
to the left side. [Id.]. Dr. Bennett-Johnson’s diagnoses included chronic leg pain,
greater on the left than the right; lumbar pain with radiation to the right hip; a left index
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finger injury; uncomplicated hypertension; depression; and diminished hearing with the
use of a hearing aid. [Id.].
In June 2011, Dr. William Hand, a non-examining medical consultant, completed
a residual functional capacity assessment for the state agency. [R263-70]. Dr. Hand
determined that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently.
[R264]. He found that Plaintiff could sit, stand, or walk for six hours in an eight-hour
workday. [Id.]. He concluded that Plaintiff did not have any postural or manipulative
limitations. [R265-66].
In October 2011, Dr. Bettye Stanley, a non-examining state agency physician,
completed a physical RFC questionnaire. [R602-09]. She determined that Plaintiff
could lift 20 pounds occasionally and up to 10pounds frequently. [R603]. Dr. Stanley
indicated that Plaintiff could sit, stand, or walk for up to six hours in an eight-hour
workday. [Id.].
D.
Vocational expert’s testimony
At the hearing before the ALJ, the VE testified that assuming a hypothetical
person with Plaintiff’s characteristics could lift 20 pounds occasionally and 10 pounds
frequently; could sit, stand, or walk for six out of eight hours, but would need to switch
positions every hour or two; and would have “limited use of the non-dominant index
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finger,” which would not affect the person’s ability to lift, but which “could affect jobs
with fine manipulation,” such as those that require keyboarding skills, could perform
Plaintiff’s past work as a telemarketer (DOT number # 299.357-014) or a telephone
sales operator (DOT number #235.662-026), and that his observations were consistent
with the Dictionary of Occupational Titles. [R69, 71-72]. The VE further testified that
those jobs could still be performed if the individual were limited to superficial contact
with coworkers, and would have to use a cane in the workplace. [R72].
E.
Newly-submitted evidence
Attached to his brief in this court, Plaintiff submitted evidence that he had not
previously submitted either to the ALJ or the Appeals Council. First, he submitted
documentation from the VA showing that he has been diagnosed with AL
Amyloidosis,21 which ailment was described by Dr. Maria Ribeiro of the VA’s
21
In general, amyloidosis is caused by the buildup of an abnormal protein
called amyloid. Amyloid is produced in bone marrow and can be deposited in any
tissue or organ. The specific cause of the condition depends on the type of amyloidosis
a person has. AL amyloidosis (immunoglobulin light chain amyloidosis) is the most
common type and can affect the heart, kidneys, skin, nerves and liver. Previously
known as primary amyloidosis, AL amyloidosis occurs when the bone marrow
produces abnormal antibodies that cannot be broken down. The antibodies are
deposited in tissues as amyloid, interfering with normal function. Mayo Clinic, Patient
Care & Health Information, Diseases and Conditions,
https://www.mayoclinic.org/diseases-conditions/amyloidosis/symptoms-causes/syc20353178 (last visited 9/24/18).
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Hematology/Oncology Department as “terminal.” [Doc. 26-1 at 2]. According to
Dr. Ribeiro, Plaintiff first was diagnosed with this condition in January 2015 and began
undergoing chemotherapy the following month. [Id.]. Both Dr. Ribeiro and Dr. Chunzi
Xia, also in the VA Hematology/Oncology Department, noted that his AL amyloidosis
was likely caused by his exposure to Agent Orange while serving on the USS Saratoga
after that ship returned from a combat deployment in Vietnam. [Id. at 2-3].
Plaintiff also submitted his own letter responding to his social worker’s
statements about his work activity. [Doc. 26-2 at 2]. In the letter, Plaintiff denies that
he ever used his truck to supplement his income, and he states that the reference to
picking up furniture at Goodwill referred to an incident where his wife purchased a
bunk bed and he drove the truck to pick it up. [Id.]. Plaintiff notes in the letter that his
wife22 loaded the bed onto the truck by herself, without his assistance. [Id.]. He states
that his social worker must have misunderstood what he said to her during their
conversation. [Id.].
IV.
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact:
22
The Court notes that, on his applications for benefits [R136, 146], and his
June 2011 psychiatric examination with Dr. Storms, [R258], Plaintiff stated that he had
never been married.
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1.
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2014.
2.
The claimant has not engaged in substantial gainful activity
since October 15, 2008, the alleged onset date
(20 CFR 404.1571 et seq., and 20 CFR 416.971 et seq.).
3.
The claimant has the following severe impairments: mild
lumbar spondylosis; chronic lower left leg pain; a[] history of
a L [left] hand injury affecting the L [left] index finger; and
a rash of an unknown origin (20 CFR 404.1520(c) et seq.,
and 20 CFR 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 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926).
...
5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a
limited range of light work as defined in
20 CFR 404.1567(b) and 416.967(b). The claimant’s ability
to perform the full range of light work is compromised
because the claimant needs to have the option of alternating
between sitting and standing at his workstation every hour or
two. In addition, the claimant has limited use of his nondominant index finger that could affect jobs with fine
manipulation, but does not affect lifting or carrying. With
regard to postural limitations, the claimant can occasionally
climb ladders, ropes or scaffold[s], occasional stooping, and
frequently climb ramps and stairs. In addition, the claimant
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is limited to frequent balancing, kneeling, crouching, and
crawling. The claimant would do best in an environment
where there is only superficial contact with co-workers.
...
6.
The claimant is capable of performing past relevant work as
a telemarketer or telephone operator. This work does not
requite the performance of work-related activities precluded
by the claimant’s residual functional capacity
(20 CFR 404.1565 and 20 CFR 416.965).
...
7.
The claimant has not been under a disability, as defined in
the Social Security Act, since October 15, 2008, through the
date of this decision (20 CFR 404.1520(f) and
20 CFR 416.920(f)).
[R17-23].
The ALJ assigned significant weight to Dr. Johnson’s opinion as to Plaintiff’s
physical capabilities, because she found that the opinion was consistent with the
treatment notes, the state agency medical consultants’ opinions, and Plaintiff’s activities
of daily living. [R22]. The ALJ accorded great weight to the opinions of state agency
medical consultants–Drs. Stanley and Hand–because they were consistent with
treatment notes, Dr. Johnson, the evidence as a whole, and Dr. Chandan’s determination
on November 9, 2011 that Plaintiff’s gait and station were normal. [Id.]. However the
ALJ gave greater weight to Dr. Stanley’s opinion “because the medical evidence
19
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2)
supports the additional limitations she described” but, ultimately, found Plaintiff
“further limited than both doctors opined.” [Id.].
The ALJ determined that Plaintiff’s statements about “the intensity, persistence,
and limiting effects” of his symptoms were not entirely credible. [R20]. The ALJ
observed that Plaintiff’s leg pain was intermittent and that he only needed medication
for occasional episodes of pain. [R22]. In addition, the ALJ noted that the “records
contain numerous references to the claimant working as a furniture mover” and renting
out his truck to others. [Id.].
The ALJ also concluded that Plaintiff had been “less than candid in his
statements to medical providers and this Administrative Law Judge.”
[R23].
Specifically, the ALJ noted that Plaintiff denied using marijuana during one visit, but
later tested positive for that substance. [Id.]. The ALJ also noted that the record was
“replete with references to the claimant renting his truck out and moving furniture,”
recounting Plaintiff’s statements that
he continued to earn funds from renting his truck out, but did not want to
do anything that would jeopardize his pending disability claims with the
VA. . . . [indicating] that [he] was aware that he was earning income and
that reporting he is doing so could impact his claim for disability.
[Id.]. The ALJ also observed that Plaintiff denied working in 2009, but his tax return
“clearly shows substantial income for 2009.” [Id.].
20
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Based on the above RFC and the VE testimony, the ALJ determined that
Plaintiff could return to his past relevant work as a telemarketer or telephone operator.
[R23-24]. Therefore, the ALJ found that Plaintiff was not disabled. [R24].
V.
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he is
unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.”
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The impairment or
impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
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See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability.
See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999). The claimant must prove at step one that he is not undertaking
substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments that significantly limits his ability to perform basic
work-related activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At
step three, if the impairment meets one of the listed impairments in Appendix 1 to
Subpart P of Part 404 (Listing of Impairments), the claimant will be considered
disabled without consideration of age, education, and work experience.
See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At step four, if the claimant
is unable to prove the existence of a listed impairment, he must prove that his
impairment
prevents
performance
of
past
relevant
work.
See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the regulations
direct the Commissioner to consider the claimant’s residual functional capacity, age,
education, and past work experience to determine whether the claimant can perform
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other work besides past relevant work.
See 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). The Commissioner must produce evidence that there is other work
available in the national economy that the claimant has the capacity to perform.
Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant must prove an
inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the
sequential
evaluation
ceases
and
further
inquiry
ends.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy.
Doughty,
245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superseded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
VI.
SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
23
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2)
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
24
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unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.
Barron v. Sullivan,
924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
Also, a “court must consider evidence not submitted to the [ALJ] but considered
by the Appeals Council when that court reviews the Commissioner’s final decision.”
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1258 (11th Cir. 2007). In
reviewing this additional evidence, the court must evaluate whether this “new evidence
renders the denial of benefits erroneous.” Id. at 1262. This means that the court must
“determine whether the Appeals Council correctly decided that the ‘[ALJ’s] action,
findings, or conclusion is [not] contrary to the weight of the evidence currently of
record.’ ” Id. at 1266-67 (quoting 20 C.F.R. § 404.970(b)).
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VII. CLAIMS OF ERROR
A.
Whether the hypothetical posed to the VE sufficiently defined
Plaintiff’s limitations.
Plaintiff claims that the ALJ failed to develop the record because the hypothetical
question posed to the VE did not adequately define his manipulative limitations.
[Doc. 26 at 17]. Although Plaintiff acknowledges that the ALJ noted that Plaintiff had
a serious injury in his left index finder which caused it to be permanently fixed in a
flexion position and limited his fine motor skills such as keyboarding, he submits that
the ALJ erred by not identifying whether this posed frequent, occasional, or no
fingering with his left hand. [Id.]. Plaintiff claims that this is a serious omission
because, with occasional or no fingering, Plaintiff would be unable to perform his past
work. [Id. (citing DICOT 299.357-014, 1991 WL 672624 (telephone solicitor)23;
DICOT 235.662-022, 1991 WL 672175 (telephone operator)24)].
23
The DOT for this position indicates it requires a finger and manual
dexterity level of 4 (defined as “lowest 1/3 excluding bottom 10%”) and frequent
fingering (defined as “exists 1/3 to 2/3 of the time”). DICOT 299.357014,1991 WL 672624.
24
The DOT for this position indicates it requires a finger and manual
dexterity level of 3 (defined as “middle 1/3 of the population”) and frequent fingering
(defined as “exists 1/3 to 2/3 of the time”). DICOT 235.662-022, 1991 WL 672175.
26
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The Commissioner first responds that Plaintiff injured his left finger in 1996 but
continued to work as a telemarketer and telephone operator from 1998 until 2008,
belying his claims that his injured left finger prevented him from performing his past
work. [Doc. 28 at 15-16]. However, the ALJ did not offer this as a reason for not
assessing Plaintiff with particular fingering limitations.
[R21].
As such, the
Commissioner proffers an impermissible post-hoc rationalization. See Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (“We decline . . . to affirm simply
because some rationale might have supported the ALJ’s conclusion. Such an approach
would not advance the ends of reasoned decision making.”).
Second, the Commissioner asserts that Plaintiff has cited to no evidence showing
that he may be limited to occasional or no fingering and, in, fact, the record does not
support these limitations. [Id. at 16]. Third, the Commissioner responds that Drs. Hand
and Stanley assessed Plaintiff with no manipulative limitations. [Id. at 17]. Plaintiff
replies that this does not excuse the ALJ’s failure to define Plaintiff’s limitations with
sufficient particularity. [Doc. 29 at 3].
In forming the RFC, “[e]ach function [(i.e., sitting, standing, walking, lifting,
carrying, pushing, and pulling)] must be considered separately . . . , even if the final
RFC assessment will combine activities. . . .” SSR 96-8p. However, “when there is no
27
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allegation of a physical or mental limitation or restriction of a specific functional
capacity, and no information in the case record that there is such a limitation or
restriction, the adjudicator must consider the individual to have no limitation or
restriction with respect to that functional capacity.” SSR 96-8p. The claimant is
generally responsible for providing the evidence used by the Commissioner to make a
finding about the claimant’s RFC, but before making a determination that the claimant
is not disabled, the Commissioner is responsible for developing a complete medical
history, including arranging for a consultative examination if necessary.
20 C.F.R. § 416.945(a)(3).
Here, the Commissioner is correct that Plaintiff has pointed to no records
indicating fingering limitations. However, the ALJ observed that “Dr. Johnson noted
the claimant had reduced grip in his left hand, which could affect his left hand’s ability
to grip and pinch. Consequently, limitations from this impairment are reflected in the
residual functional capacity.” [R21 (internal citations omitted)]. The ALJ then went
on to incorporate that limitation in the RFC as “limited use of his non-dominant index
finger that could affect jobs with fine manipulation but does not affecting lifting or
carrying.” [R19 ([citing R71-72])].
The VE testified that a person with those
28
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restrictions could perform Plaintiff’s past work as a telemarketer or a telephone sales
operator and that his observations were consistent with the DOT. [R69, 72].
Plaintiff’s contention that the VE’s testimony conflicted with the DOT, despite
the VE’s explicit affirmation to the contrary, was not raised during the hearing.
[Doc. 11 at 19 (citing Higgins v. Comm’r of Soc. Sec., No. 6:11-cv-1221-Orl-KRS,
2012 WL 4327666, at *6 (M.D. Fla. Sept. 20, 2012))]. While this is may be
attributable to Plaintiff’s pro se status, even assuming arguendo that there was a
conflict between the VE’s testimony and DOT, the VE’s testimony controls. Jones v.
Apfel, 190 F.3d 1224, 1230 (11th Cir. 1999). But see Rodriguez v. Comm’r Soc. Sec.,
No. 6:17-cv-1374-Orl-22GJK, 2018 WL 840129, at *4-5 (M.D. Fla. Jan. 25, 2018)
(holding that SSR 00-4p instructs the ALJ to elicit a reasonable explanation” for any
conflict between the DOT and the VE’s testimony before relying on the VE). Even if
this Court applies SSR 00-4p, as explained in Rodriguez, the ALJ did not err because
she specifically asked the VE to identify and explain any inconsistency between the
DOT and his testimony. [R69]. As such, the hypothetical posed to the VE stated
Plaintiff’s limitations with sufficient particularity and the ALJ’s reliance on VE
findings that may conflict with the DOT is permissible given the VE’s testimony.
Consequently, the Court finds no reversible error in the Commissioner’s conclusion
29
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2)
that Plaintiff’s left hand limitations did not preclude his past work as a telemarketer or
a telephone sales operator.
Second, Plaintiff claims that the ALJ erred by not accounting for his vision
impairment and finding that his glaucoma was non-severe. [Doc. 26 at 17-18].
Specifically, Plaintiff opines that the finding that his glaucoma was non-severe is not
supported by the evidence because the most recent treatment records showed that
Plaintiff had moderately blurred vision in both eyes and was developing a cataract.
[Id. at 18 (citing [R676, 759])]. The Commissioner responds that substantial evidence
supports the ALJ’s findings that Plaintiff’s vision impairments were not severe because
a mere diagnosis does not establish evidence of a severe impairment, and further that
Plaintiff’s treatment records reflect that he was merely prescribed night-time eyedrops
and his glaucoma did not affect his ability to work or activities of daily living.
[Doc. 28 at 18-19]. Plaintiff replies that the most recent treatment notes show that his
“glaucoma affects his ability to perform basic work activities” because he had
moderately blurred vision in both eyes and a developing cataract. [Doc. 29 at 4].
The Commissioner has the better end of the argument, as even the recent records
cited by Plaintiff note that his glaucoma does not affect his activities of daily living.
[R676, 760].
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Consequently, the Court concludes that Plaintiff has not shown reversible error
in the Commissioner’s finding that Plaintiff’s visual impairments are non-severe.
B.
Whether the ALJ failed to develop the record regarding
Plaintiff’s physical limitations.
Plaintiff claims that the ALJ failed to develop the record because, although she
found Plaintiff was not entirely credible because he worked during his alleged disability
period, she did not question Plaintiff about this during the hearing or give him a chance
to explain himself, and ignored his explanatory statement concerning his 2009 tax
return. [Doc. 26 at 19-20]. The Commissioner responds, first, that the Plaintiff has not
shown that additional testimony had a reasonable possibility of altering the ALJ’s
decision, as Plaintiff did not challenge the ALJ’s determination of Plaintiff’s
credibility25 and Plaintiff’s medical records, testimony, and 2009 tax returns reflect that
he worked after his alleged onset date, at least by driving his truck to help others move.
[Doc. 28 at 20-21].
25
While Plaintiff does not challenge this assertion, the Court observes that
Plaintiff’s arguments suggest that he is, essentially, challenging the ALJ’s credibility
determination by contesting the ALJ’s factual bases for her credibility choices. As a
result, the Court will examine both the factual bases and whether the ALJ’s credibility
determination was supported by substantial evidence.
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Plaintiff replies that the ALJ’s only articulated bases for determining Plaintiff’s
reported subjective impairments were not entirely credible were: (1) two treatment
notes wherein Plaintiff described his pain as intermittent; (2) “numerous references to
. . . working as a furniture mover[;]” and (3) a lack of candor in his statements
regarding alleged work activity. [Doc. 29 at 7]. Plaintiff submits that two of these
reasons “rested, in large part, on the ALJ’s finding that [Plaintiff] worked after his
alleged onset date” which his explanation disproves. [Id.].
As a preliminary matter, the ALJ’s duty to develop the record “rises to a special
duty26 when an unrepresented claimant unfamiliar with hearing procedures appears
before him.” Cowart v. Schweiker, 662 F.2d 731, 734-35 (11th Cir. 1981) (quoting
Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. July 17, 1981)). “By implication, where
counsel has been waived, the special duty to develop the record does not take effect.”
Robinson v. Astrue, 235 Fed. Appx. 725, 727 (11th Cir. Apr. 11, 2007). In the absence
of the special duty, a plaintiff must make a more specific showing of prejudice of the
26
Under this special duty, the ALJ must: (1) “scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant facts”; and
(2) “be ‘especially diligent in ensuring that favorable as well as unfavorable facts and
circumstances are elicited.’ ” Cowart, 662 F.2d at 734-35 (quoting Cox v. Califano,
587 F.2d 988, 991 (9th Cir. 1978)). To warrant remand for the ALJ’s failure to develop
the record, there must be a showing of prejudice. Brown v. Shalala, 44 F.3d 931, 935
(11th Cir. 1995) (citing Kelley v. Heckler, 761 F.2d 1538, 1540 n.2 (11th Cir. 1985)).
32
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failure to develop the record. Kelley, 761 F.2d at 1540 n.2; see also Brown,
44 F.3d at 935. This means that a plaintiff must make a “showing of such a clear
prejudice or unfairness . . . caused by . . . lack of counsel as would warrant a
reconsideration of . . . [her] claims” by the Commissioner. Clark, 652 F.2d at 404
(quoting Cross v. Finch, 427 F.2d 406, 409 (5th Cir. 1970)). Here, Plaintiff was
unrepresented but waived his right to representation, and, as a result, there was no
special duty and Plaintiff must show prejudice caused by his lack of counsel.
Additionally, where an ALJ decides not to credit a claimant’s testimony
regarding subjective allegations of disability, she must articulate explicit and adequate
reasons for doing so. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). Be that
as it may, in rejecting such testimony, the ALJ does not need to refer specifically to
each piece of evidence in her decision, so long as the decision “is not a broad rejection”
that does not allow the reviewing court to determine that the ALJ considered the
claimant’s medical condition as a whole. Dyer, 395 F.3d at 1211.
Here, the ALJ clearly considered Plaintiff’s 2009 employment earnings and,
indeed, the record reflects that she questioned Plaintiff about the discrepancy between
it and his reported work history, [R36-37], even going so far as explaining the
discrepancy in his testimony and reported earnings and advising him to submit his tax
33
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2)
return for that year, [R45-48], and referring to this evidence in her decision, [R17]. In
fact, the ALJ gave Plaintiff the benefit of the doubt and concluded that although
Plaintiff worked after his alleged onset date, the work did not rise to the level of
substantial gainful employment. [Id.]. As a result, the Court finds no error in
developing the record with respect to Plaintiff’s post-2009 work history.
However, Plaintiff also claims he was prejudiced because the ALJ did not ask
him about provider notes indicating that he worked part-time, but relied on them in
determining that Plaintiff was not fully credible. [Doc. 26 at 20]. More specifically,
Plaintiff submits that the only bases for the ALJ’s credibility determination–other than
treatment notes–were“numerous references to . . . working as a furniture mover” and
Plaintiff a lack of candor in his statements regarding alleged work activity.
[Doc. 29 at 7]. This is simply not true.
First, the ALJ referred to treatment notes not only describing Plaintiff as a
furniture mover, but also renting out his truck. [R22-23]. Second, the ALJ explained
that Plaintiff also was “less than candid is his statements to medical practitioners and
this” ALJ because, in addition to “renting out his truck and moving furniture” he:
(1) denied using marijuana but only admitting it, and providing an explanation, after
it was indicated on a urinary drug screen and (2) “stated he continued to earn funds
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2)
from renting his truck out, but did not want to do anything that would jeopardize his
pending disability claims with the VA . . . [indicating] that [he] was aware that he was
earning income and that reporting he is doing so could impact his claim for disability.”
[R23].
The Court observes that, other than the statement included with this
appeal–explaining that one treatment note reflects that his wife had him using the truck
to transport a bunk bed from Goodwill–Plaintiff has not offered any argument
whatsoever that explains the multiple instances in his treatment records where he
reported income from using his truck. The Court further observes that, although
Plaintiff claims that his wife made him work, the record is replete with references to the
fact that Plaintiff has never been married and lives alone. Even if the Court accepts as
true that Plaintiff did have a wife who asked him to transport a bunk bed from
Goodwill, this does not explain his initial dishonesty with medical providers regarding
marijuana usage nor does it explain his desire to under-report income to attain
disability.
As a result, the Court finds that the ALJ’s credibility determination was not an
impermissible rejection of Plaintiff’s testimony, as Plaintiff seems to suggest, but was
instead a detailed, generally well-reasoned explanation. See Dyer, 395 F.3d at 1210-11;
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Holt, 921 F.2d at 1223; SSR 96-7p. Consequently, the Court is not persuaded that
allowing Plaintiff to explain treatment notes about earning additional income would
have altered the credibility determination and finds that, to the extent this was error, it
was harmless and not grounds for reversal. See Walker v. Bowen, 826 F.2d 996, 1002
(11th Cir. 1987) (applying harmless error analysis in Social Security case); Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying harmless error analysis where the
ALJ made an incorrect statement of fact); Young v. Astrue, No. 8:09-cv-1056,
2010 WL 4340815, *4 (M.D. Fla. Sept. 29, 2010) (an error is harmless if it “do[es] not
affect the ALJ’s determination that a claimant is not entitled to benefits.”).
Accordingly, the Court finds no reversible error in the ALJ’s credibility determination.
C.
Whether remand is appropriate under sentence six of
42 U.S.C. § 405(g).
As a preliminary matter, under sentence six of 42 U.S.C. § 405(g), a court may
remand for the Commissioner to consider additional evidence, “but only upon a
showing that there is new evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a prior proceeding.” See
Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996); Freeman v. Comm’r, Soc. Sec.
Admin., No. 2:16-CV-1956-TMP, 2018 WL 3997237, at *3 (N.D. Ala. Aug. 21, 2018).
Therefore, a case will be remanded based on new evidence when: (1) the evidence is
36
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2)
new and non-cumulative; (2) “the evidence is material such that a reasonable possibility
exists that the new evidence would change the administrative result”; and (3) “good
cause exists for the applicant’s failure to submit the evidence at the appropriate
administrative level.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). Evidence
is new when it is created after the administrative hearing and the ALJ’s decision, and
it is non-cumulative when there is no similar evidence in the administrative record. See
Butler v. Barnhart, 347 F. Supp. 2d 1116, 1124 (M.D. Ala. 2003); see also Vega v.
Comm’r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001) (finding evidence was new
and non-cumulative when a doctor discovered claimant’s herniated disc and performed
the corrective surgery in May 1997, after the ALJ rendered his decision in 1996).
A claimant shows good cause by establishing that the evidence did not exist until after
the administrative proceedings. Butler, 347 F. Supp. 2d at 1124-25; see also Vega,
265 F.3d at 1218-19 (indicating that good cause was shown because the discovery of
the herniated disc took place after the ALJ’s decision); Hyde v. Bowen, 823 F.2d 456,
459 (11th Cir. 1987) (“[B]ecause this new evidence did not exist at the time of the
administrative proceedings [claimant] has established good cause for failure to submit
the evidence at the administrative level.”). In addition, new evidence must relate to the
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time period prior to the ALJ’s decision.
See Archer v. Comm’r of Soc. Sec.,
176 Fed. Appx. 80, 82 (11th Cir. Apr. 14, 2006).
First, Plaintiff seeks remand so that the Commissioner can consider his
AL Amyloidosis. [Doc. 26 at 21-22]. Plaintiff acknowledges that he was not
diagnosed with this condition until two years after his hearing but, because it is a
progressive impairment, “it is likely” that he “was experiencing symptoms of this
condition at the time of his hearing in 2013.” [Id. at 22]. Plaintiff submits that, where
it may be possible to infer that a claimant’s condition began prior to the date of first
recorded diagnosis, “the ALJ should ‘call on the services of a medical advisor’ to
evaluate when the claimant’s disability commenced.”
[Id. (citing SSR 83-20,
1983 WL 31249, at *3)]. Plaintiff claims that” there is a reasonable probability that a
medical expert would find” that he had this condition prior to the ALJ’s decision, it is
material and he has good cause for not submitting it, as the diagnoses did not occur
until 2015. [Id. at 23].
The Commissioner responds that Plaintiff cites no evidence that he actually had
AL Amyloidosis or experienced symptoms before the ALJ’s decision and, even if he
did, a mere diagnosis does not establish a work-related limitation. [Doc. 28 at 23]. The
Commissioner also claims that Plaintiff’s reliance on SSR 83-20 is misplaced as it is
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2)
applicable only after there is a finding of disability and it is necessary to determine
when the disability began. [Id. at 23 (citing Caces v. Comm’r, Soc. Sec. Admin.,
560 Fed. Appx. 936, 939 (11th Cir. Mar. 27, 2014); SSR 83-20; Klawinski v. Comm’r
of Soc. Sec., 391 Fed. Appx. 772, 776 (11th Cir. Aug. 6, 2010))]. Plaintiff replies that
he anticipates no dispute concerning his disability and his speculation is “informed
speculation.” [Doc. 29 at 9].
Plaintiff’s AL Amyloidosis diagnosis did not exist at the time of the hearing
before the ALJ. Therefore, it was new and Plaintiff had good cause for not submitting
it, and thus, the only relevant inquiry is whether it was material or “a reasonable
possibility exists that the new evidence would change the administrative result[.]”
Falge, 150 F.3d at 1323.
Even accepting, as Plaintiff argues, that this condition was progressive,
Plaintiff–who is now represented by counsel–has the burden of proving that he is
disabled by identifying medical and other evidence that shows he is disabled.
20 C.F.R. § 404.1512(a); see also Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003) (holding that despite ALJ’s duty to fully develop the record, “the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence to in support of his claim.”). However, the
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2)
evidence attached to Plaintiff’s brief makes no assertion that it caused the symptoms
he asserts are disabling. As discussed in Part VII(A) supra, a mere diagnosis is
insufficient to show disability.
Moreover, Plaintiff is not entitled to additional opinions from medical experts
under SSR 83-20 because the issue is not when a disability arose due to
AL Amyloidosis, but whether he was disabled under the Social Security Act at all.
Caces, 560 Fed. Appx. at 939; see also Klawinski, 391 Fed. Appx. at 776 (“We
conclude that the ALJ did not contravene SSR 83-20 because the ALJ ultimately found
that Klawinski was not disabled, and SSR 83-20 only required the ALJ to obtain a
medical expert in certain instances to determine a disability onset date after a finding
of disability.”).
In addition, the Court’s scheduling order made clear that requests for the Court
to remand the case to the Commissioner to consider new evidence must attach the
evidence to be considered on remand:
. . . [I]f the remand is for the purpose of taking additional evidence, such
evidence must be attached to the brief, or, if such evidence is in the form
of a consultative examination sought at government expense, Plaintiff
must make a proffer of the nature of the evidence anticipated to be
obtained.
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[Doc. 20 at 2-3, ¶ 1(c)].
Here, although, Plaintiff attached evidence of his
AL Amyloidosis diagnosis to his brief, the evidence does not demonstrate that AL
Amyloidosis had any affect whatsoever on his ability to work.27 In addition, to the
extent that Plaintiff seeks additional medical opinions related to his AL Amyloidosis
diagnosis and any impact it has on his ability to work (particularly during the period
when he was insured), he made no proffer of what disabling symptoms he anticipated
linking to AL Amyloidosis.
As a result, Plaintiff has not shown that the new diagnosis relates back to his
allegedly disabling symptoms during the relevant period. See Wilson v. Apfel,
179 F.3d 1276, 1279 (11th Cir. 1999) (holding new evidence following disability period
was irrelevant because it was two years after ALJ decision). Accordingly, Plaintiff fails
to show that his diagnosis is material and the Court concludes that remand under
sentence six of 42 U.S.C. § 405(g) is not warranted.
27
The exhibit reflects that Plaintiff was diagnosed with AL Amyloidosis on
February 4, 2015; that there is documented involvement of his GI tract, and suspected
involvement of the liver and spleen; and that as of the date of the March 18, 2015 letter,
he was receiving chemotherapy and his “condition is considered terminal and
incurable.” Dr. Ribeiro wrote that Plaintiff was a Vietnam War era veteran and was
exposed to Agent Orange, and “AL Amyloidosis is a presumptive Agent Orange
disability.” [Doc. 26-1 at 2].
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Second, Plaintiff claims that remand is warranted to consider his written
statement that he “never rented out his truck or moved furniture for pay or profit.”
[Doc. 26 at 23]. Plaintiff claims that this is new evidence because it was not previously
submitted to the ALJ, material because it could have altered her assessment of
Plaintiff’s credibility, and he had good cause for not submitting it earlier because he
was not represented. [Id. at 23-24]. The Commissioner responds that Plaintiff’s
assertion regarding his letter is pure speculation. [Id.].
As explained Part VII(B) supra, it is not reasonable to conclude that Plaintiff’s
explanation that one treatment note reflects that his wife had him using the truck to
transport a bunk bed from Goodwill would alter the ALJ’s credibility determination in
light of multiple instances in his treatment records where he reported income from
using his truck, the ALJ’s conclusion that Plaintiff was initially dishonest with medical
providers regarding marijuana usage, discrepancies concerning his work history
between his testimony and 2009 tax returns, and his stated desire to under-report
income to attain disability. As a result, the Court concludes that Plaintiff’s letter is not
material.
In addition, the information contained in Plaintiff’s letter is not new, nor was
there good cause for not offering it until his appeal to district court. While Plaintiff
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may not have written the letter until after the ALJ’s decision and while he was
unrepresented, his letter amounts to an explanation and is not in the same vein as the
types of medical records that courts commonly consider under sentence six. First,
although Plaintiff claims he did not realize that his treatment records contained
references to his part-time employment and that the ALJ would rely on them, [Doc. 26
at 24], he was aware of them after the ALJ issued her decision. Second, Plaintiff was
able to request review by the Appeals Council, [R10], and correspond with it, [R4], and
he could have included this information in his administrative appeal. Third, the “good
cause” requirement is to prevent manipulation of the administrative process by
discouraging a claimant from withholding evidence until after an adverse administrative
decision is issued. Milano v. Bowen, 809 F.2d 763, 767 (11th Cir. 1987). That is
precisely what Plaintiff seeks to do here. Accordingly, Plaintiff has failed to show that
his explanation was new, material, or that there was good cause for not submitting it
earlier. As a result, the Court DENIES remand under sentence six.
VIII. CONCLUSION
For all of the above reasons, the final decision of the Commissioner is
AFFIRMED and the Court DENIES Plaintiff’s request for remand under sentence six
of 42 U.S.C. § 405(g).
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The Clerk is DIRECTED to enter judgment for Defendant.
IT IS SO ORDERED and DIRECTED, this the 24th day of September, 2018.
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