Edwards v. Astrue et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge William T. Moore, Jr on 9/14/2012. (loh)

tiC
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA 2012Sp tt
SAVANNAH DIVISION
DOROTHY LOUISE EDWARDS,
Plaintiff,
CASE NO. CV411-162

V.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

ORDER
Before the Court is the Magistrate Judge's Report and
Recommendation (Doc. 18) , to which objections have been
filed (Doc. 20) . After a careful de novo review of the
record, the Court finds Plaintiff's objections without
merit.

Accordingly, the Report and Recommendation is

ADOPTED as the Court's Opinion in this case and
Plaintiff's appeal is DISMISSED.

The Clerk of Court is

DIRECTED to close this case.
In her objections, Plaintiff contends that the
Magistrate Judge's Report and Recommendation "rested on a
misapprehension of [Plaintiff's] position," by finding
that the Administrative Law Judge ("AU") did not err by
failing to pose a complete hypothetical to the vocational
expert.

(Doc. 20 at 1.)

Citing to Winschel v. Comm'r of

Soc. Sec., 631 F. 3d 1176, 1180-81, Plaintiff alleges that
"substantial evidence does not support the AL's step-five
finding that [Plaintiff] could work as a hand packager and
a housekeeper." Despite Plaintiff assertions, Winschel
found that 'when medical evidence demonstrates that a
claimant can engage in simple, routine tasks or unskilled
work despite limitations in concentration, persistence,
and pace, courts have concluded that limiting the
hypothetical to include only unskilled work sufficiently
accounts for such limitations."

Winschel, 631 F.3d at

1180 (citations omitted) . In so holding, Winschel was
ultimately remanded because the ALJ there failed to
indicate whether the claimant could perform simple,
repetitive tasks or unskilled work. id. at 1181. At
present, and contrary to Plaintiff's objections, the AU
found that Plaintiff could perform simple, repetitive
tasks and the ALJ included unskilled work in the
hypothetical posed to the vocational expert.
2.)

(See Doc. 6-

Thus, bound by Winschel, Plaintiff's objection is

without merit.'

1

The Court also notes, as does the report and
recommendation, that any error did not prejudice the
Plaintiff and is harmless. (Doc. 18 at 6.) See Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983)

2

Additionally, Plaintiff objects to the Magistrate
Judge's recommendation that the Appeals Council denial was
proper. (Doc. 20 at 4.) According to Plaintiff, the
Court should reverse the Appeals Council's denial of
review and remand the case for rehearing because new
evidence requires additional consideration. (Id. at 5.)
A district court "must consider evidence not
submitted to the [AU] but considered by the [Appeals
Council] when [it] reviews . . . the final decision of the
Commissioner of Social Security denying benefits." Ingram
v. Comm'r of Soc. Sec., 496 F.3d 1253, 1262 (11th Cir.
2007). Further, "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." Id. Where new evidence "is not
probative of whether [Plaintiff] was disabled during the
specific time under review," the Appeals Council may deny
review.

Leiter v. Comm'r of Soc. Sec., 377 F. App'x 944,

950 (11th Cir. 2010) .

The onus remains on Plaintiff to

demonstrate when and how any new condition developed.
Here, Plaintiff has failed to do so. After a careful
review, the Court cannot find that the new evidence
renders the denial of Plaintiff's benefits erroneous.
Thus, the Appeals Council's denial of review is supported

3

by substantial evidence, as explained in the report and
recommendation.

1_Il

SO ORDERED this 7 day of September 2012.

WILLIAM T. MOORE,
UNITED STATES DISTICT COURT
SOUTHERN DISTRICT OF GEORGIA

4