Bigglest v. Colvin

Filing 14

Report and Recommendation affirming the Commissioners decision re 1 Notice of Removal filed by Carolyn Colvin, (Objections to R&R due by 8/18/2017). Signed by Magistrate Judge G. R. Smith on 8/4/17. (wwp) Modified on 8/4/2017 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JAMES A. BIGGLEST,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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CV416-340

REPORT AND RECOMMENDATION

Pro se plaintiff James Bigglest seeks judicial review of the Social
Security Administration’s denial of his application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI).
I.

GOVERNING STANDARDS
In social security cases, courts
. . . review the Commissioner’s decision for substantial evidence.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. (quotation omitted). . . . “We may
not decide the facts anew, reweigh the evidence, or substitute our
judgment for that of the Commissioner.” Winschel, 631 F.3d at
1178 (quotation and brackets omitted). “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) (quotation

omitted).

Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).
The burden of proving disability lies with the claimant. Moore v.

Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The ALJ applies
. . . a five-step, “sequential” process for determining whether a
claimant is disabled. 20 C.F.R. § 404.1520(a)(1). If an ALJ finds
a claimant disabled or not disabled at any given step, the ALJ does
not go on to the next step. Id. § 404.1520(a)(4). At the first step,
the ALJ must determine whether the claimant is currently
engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i).
At the second step, the ALJ must determine whether the
impairment or combination of impairments for which the claimant
allegedly suffers is “severe.” Id. § 404.1520(a)(4)(ii). At the third
step, the ALJ must decide whether the claimant’s severe
impairments meet or medically equal a listed impairment. Id.
§ 404.1520(a)(4)(iii). If not, the ALJ must then determine at step
four whether the claimant has the RFC 1 to perform her past
relevant work. Id. § 404.1520(a)(4)(iv). If the claimant cannot
perform her past relevant work, the ALJ must determine at step
five whether the claimant can make an adjustment to other work,
considering the claimant’s RFC, age, education, and work
experience. An ALJ may make this determination either by
applying the Medical Vocational Guidelines or by obtaining the
testimony of a [Vocational Expert (VE)].

Stone v. Comm’r. of Soc. Sec. Admin., 596 F. App’x, 878, 879 (11th Cir.
At steps four and five, the ALJ assesses the claimant’s residual functional
capacity (RFC) and ability to return to her past relevant work. Phillips v. Barnhart,
357 F.3d 1232, 1238 (11th Cir. 2004). RFC is what “an individual is still able to do
despite the limitations caused by his or her impairments.” Id. (citing 20 C.F.R.
§ 404.1545(a); Moore v. Comm’r of Soc. Sec., 478 F. App’x 623, 624 (11th Cir. 2012).
“The ALJ makes the RFC determination based on all relevant medical and other
evidence presented. In relevant part, the RFC determination is used to decide
whether the claimant can adjust to other work under the fifth step.” Jones v.
Comm’r of Soc. Sec., 603 F. App’x 813, 818 (11th Cir. 2015) (quotes and cite omitted).
1

2

2015) (footnote added).

II.

ANALYSIS
Bigglest, who was 55 years old when his DIB and SSI claims were

denied, alleges disability beginning October 1, 2010. Tr. 30, 39, 173.
He completed three years of college and has past work experience as a
university coordinator, city parking service officer, city recreational
leader, and security guard. Tr. 44, 50, 220-30. After a hearing, the
ALJ issued an unfavorable decision.

Tr. 30-39.

He found that

Bigglest’s degenerative disc disease of the cervical spine, degenerative
joint disease of the left knee, and degenerative joint disease of the right
foot with a bunion constituted severe impairments but did not meet or
medically equal a Listing. Tr. 33-34. The ALJ found that he retained
the RFC for medium work 2 except he could not engage in constant
bilateral overhead reaching.

Tr. 34. 3

Plaintiff, he determined, was

2

Medium work is defined as work that involves lifting no more than 50 pounds at a
time, with frequent lifting or carrying objects that weigh 25 pounds. 20 C.F.R.
§ 404.1567(c).
3

Plaintiff had originally alleged that chronic foot and knee pain precluded him from
working. Tr. 35 & 195. After the hearing, he submitted written statements alleging
entirely new impairments: difficulty in communicating, anger management problems,
paranoia, impatience, hyperglycemia, hypertension, impaired vision, and fatigue.
Tr. 35, 265-66, 269-70, 385-87. He explained he had not previously alleged that he
suffered from these impairments due to his “pride” and offered no explanation as to
how any of them, either singly or in combination, prevented him from full-time work.
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capable of performing his past work as a security guard, parking
enforcement officer, and recreation counselor and thus not disabled
through March 25, 2015 (the date of the decision). Tr. 38-39.
Bigglest appealed to the Appeals Council (tr. 17-19 & 26-27),
alleging disabling mental impairments precluded him from working and
providing additional records in support of his claim from the Veterans
Administration (VA). Tr. 2, 6, 7-23, 181, 271-72, 391-94. The records
included (1) treating records dated before the date of the decision, which
did not provide any basis for changing the ALJ’s decision; and
(2) treating records dated after the date of the decision. See id. The
Appeals Council considered the first set of medical records but declined
to consider the second, as the “new information is about a later time” and
“does not affect the decision about whether [he was] disabled beginning
on or before March 25, 2015.” Tr. 2. It then denied Bigglest’s request
for review, concluding that there was no basis to review the ALJ’s
decision. Tr. 1-4.

Id. The ALJ found the new allegations “not credible” and “not supported by the
record,” noting both that plaintiff had never mentioned these impairments in the 21
months his application was pending or at the hearing when given the opportunity to
speak, and that the only evidence in the record even hinting at these impairments was
a single 2007 eye exam that showed mild farsightedness (which was itself contradicted
by other evidence in the record finding no visual impairment). Tr. 36-37.
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Plaintiff disagrees, arguing that (1) the Appeals Council 4 erred by
failing to fully consider his VA records. Docs. 10 & 13. “With a few
exceptions, the claimant is allowed to present new evidence at each stage
of this administrative process,” including before the Appeals Council.

Ingram v. Comm’r, 496 F.3d 1253, 1261 (11th Cir. 2007).
The Appeals Council has the discretion not to review the ALJ’s
denial of benefits. See 20 C.F.R. § 416.1470(b). But it “must consider
new, material, and chronologically relevant evidence” that the claimant
submits. Ingram, 496 F.3d at 1261; Washington v. Comm’r, 806 F.3d
1317, 1320 (11th Cir. 2015) (same); see also 20 C.F.R. §§ 404.970(b),
416.1470(b).

When the Appeals Council accepts and considers

additional evidence, then denies review, it is not “required to provide a
detailed rationale for denying review.” Mitchell v. Comm’r, 771 F.3d
780, 784 (11th Cir. 2014). And when the Appeals Council “erroneously

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Once again, Bigglest argues that Nancy Berryhill, Acting Commissioner of Social
Security, is personally responsible for reviewing his record and the new evidence and
her personal failure to do so invalidates all administrative proceedings. That is
incorrect. The administration has several steps of review, none of which involves Ms.
Berryhill. First, there is an initial review by agency reviewing physicians,
reconsideration by new agency reviewing physicians, then an administrative hearing
before an ALJ (who issues the written decision), review by the Appeals Council, and
finally review by this Court. Ms. Berryhill is merely the named defendant. She is
not personally involved at any step, and her failure to personally review Bigglest’s
records has absolutely no bearing whatsoever on the merits of the case.
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refuses to consider evidence, it commits legal error and remand is
appropriate.” Washington, 806 F.3d at 1320.
Plaintiff’s VA records from before the date of the ALJ’s decision
were fully considered by the Appeals Council, entered into the record,
and ultimately found not material -- meaning, they did not “provide a
basis for changing the [ALJ]’s decision.”

Tr. 2; see also tr. 6, 191,

271-72, 391-94. The Appeals Council did not have any duty to explain
its finding, to reweigh the evidence of record, or otherwise recapitulate
the ALJ’s decision. Mitchell, 771 F.3d at 784 (the Appeals Council is
“not required to provide a detailed rationale for denying review.”).
And while treatment occurring after the date of the ALJ’s decision
may be chronologically relevant, it must also be material. Washington,
806 F.3d at 1323. Here, the Appeals Council rejected as chronologically
irrelevant Bigglest’s post-decision treating records.

Tr. 2; see also

tr. 7-23. Those records reflect plaintiff’s VA prescription for fluoxetine
HCL (Prozac), attendance records for an anger management support
group, diagnosis of an “unspecified anxiety disorder,” an advertisement
for a PTSD support group (not an attendance record), and plaintiff’s own
letter explaining that his military duty in England during Operation

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Desert Storm exposed him to mentally disturbed and affected soldiers as
well as other traumatic events. Tr. 7-23. Bigglest doesn’t explain what
impairments, precisely, these records relate back to, aside from
concluding that they must. See docs. 10 & 13. But even if the Court
credits plaintiff’s argument that these records ‘relate back’ to his
condition prior to the ALJ’s March 25, 2015, decision, they are
immaterial.
Treatment records are material if “there is a reasonable possibility”
that they “would change the administrative result.” Hyde v. Bowen,
823 F.2d 456, 459 (11th Cir. 1987). These records do not even hint at a

disabling mental impairment, much less establish that plaintiff’s
post-hearing

allegations

of

“difficulty

in

communicating,

anger

management problems, paranoia, impatience,” (tr. 35) or any other
mental impairment create functional limitations on his ability to work.

See 42 U.S.C. § 423(d)(5)(A) (plaintiff bears the ultimate burden of
proving disability); 20 C.F.R. §§404.1512(a), (c), 416.912(a), (c) (plaintiff
must provide evidence proving his disability). Plaintiff argues that they
are of utmost relevance to the ALJ’s decision but offers no explanation
about how these records would have altered anything in the ALJ’s

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decision at any step of the sequential analysis. Docs. 10 & 13.
Here, the evidence neither clearly ‘relates back’ to the relevant
period nor is material to the outcome of the case. The Appeals Council
thus did not err by declining to consider it. Washington, 806 F.3d at
1321.
III.

CONCLUSION
Because the ALJ’s decision is supported by substantial evidence in

the record, the Commissioner’s final decision should be AFFIRMED.
This report and recommendation (R&R) is submitted to the district
judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and
this Court’s Local Rule 72.3. Within 14 days of service, any party may
file written objections to this R&R with the Court and serve a copy on all
parties. The document should be captioned “Objections to Magistrate
Judge’s Report and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for consideration by the
assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and

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recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x 542,
545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
August, 2017.

9

4th

day of