Glissen v. Commissioner of Social Security
MEMORANDUM OPINION. Signed by Magistrate Judge Roy Percy on 2/22/17. (cs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ALISHA JOY GLISSEN
CIVIL ACTION NO.: 1:16-CV-92-RP
COMMISSIONER OF SOCIAL SECURITY
Plaintiff Alisha Joy Glissen has applied for judicial review under 42 U.S.C. § 405(g) of
the Commissioner of Social Security’s decision denying her application for disability insurance
benefits (DIB) under Title III of the Social Security Act, 42 U.S.C. §§ 416(i), 423. Docket 1.
Plaintiff filed an application for benefits on August 10, 2012, alleging disability beginning on
July 20, 2012. Docket 7 at 164-65.
The agency administratively denied Plaintiff’s claim initially on October 24, 2012 and on
reconsideration on December 18, 2012. Id. at 111-13, 116-17. Plaintiff then requested an
administrative hearing, which Administrative Law Judge (ALJ) Rebecca Sartor held on June 11,
2014. Id. at 119-20, 125-27. The ALJ issued an unfavorable decision on August 25, 2014. Id. at
39-49. The Appeals Council denied Plaintiff’s request for review on April 11, 2016. Id. at 1-4.
Plaintiff timely filed this appeal from the April 11, 2016 decision, the undersigned held a hearing
on January 19, 2017, and it is now ripe for review.
Because both parties have consented to a magistrate judge conducting all the proceedings
in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to issue this
opinion and the accompanying Final Judgment. Docket 10.
Plaintiff was born on November 25, 1980, and was 33 at the time of the ALJ hearing.
Docket 7 at 164. Plaintiff contends she became disabled as a result of lupus and that she
additionally suffers from Raynaud’s syndrome, hyperthyroidism, rheumatoid arthritis, acid
reflux, photosensitive dermatitis, and bad nerves. Id. at 62, 64, 68-70, 77-82. Specifically,
Plaintiff asserts that she qualifies for disability under either part of the Listing for systemic lupus
erythematosus (SLE), Section 14.02. Id. at 62.
At the ALJ hearing, Plaintiff provided testimony about each of the following medical
conditions from which she claims to suffer: arthritis (Id. at 64-67); Reynaud’s syndrome (Id. at
79); hypothyroidism (Id. at 68); anxiety/nervousness (Id. at 68-69, 80-81); rash (Id. at 70, 76-78);
lupus (Id. at 62-63, 80-81, 83-84); and acid reflux (Id. at 81-82). Plaintiff testified that she
experiences knots and swelling in her hands and feet and swelling in her ankles and knees
making it difficult to walk and preventing her from bending over or stopping down. Id. at 64-67.
According to Plaintiff, it is “hard to just function on [her] own.” Id. at 64. at 64-65. She stated
that her hands and feet swell daily; her knees swell three to four times a week; her ankles swell
almost daily; she feels nauseous almost every day; and she experiences a “bad” outbreak of these
symptoms three to four times a week. Id. at 66.
Plaintiff testified that sunlight and heat aggravate her skin causing a burning and itching
rash to appear on her arms, with knots on her hands and bumps on the back of her legs and
bottom. Id. at 70, 76-78. These knots bleed easily and the blood does not clot well. Id. at 76. She
testified that Reynaud’s syndrome causes a loss of sensation and change in color in her hands in
cold weather, and further causes numbness and tingling in her hands and wrists. Id. at 79. Her
hypothyroidism and lupus cause constant fatigue; the lupus continually flares up and Plaintiff’s
only reprieve comes with temporary relaxations of the flare. Id. at 68, 80, 83. Plaintiff stated that
the lupus medication controls her platelet levels but that she still experiences the other
symptoms. Id. at 84. Plaintiff testified that she experiences acid reflux around eight times a
month with each episode lasting around a day-and-a-half during which she experiences nausea
and throwing up. Id at 81-82.
The ALJ established that Plaintiff had not engaged in substantial gainful activity since
July 20, 2012, the alleged onset date. Id. at 41. Next, the ALJ found that Plaintiff experienced the
severe impairments of systemic lupus erythematosus, Raynaud’s disease, thyroid disorder,
GERD (gastroesophageal reflux disease), and anxiety, but that Plaintiff’s impairments did not
meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(404.1520(d), 404.1525, and 404.1526). Id. at 41-43. Specifically, the ALJ discussed how each
of Plaintiff’s severe impairments do not meet or medically equal the listing criteria for lupus,
thyroid disorder, GERD, or anxiety. Id. at 41-42.
Considering Plaintiff’s severe impairments, ALJ found that Plaintiff’s demonstrated
abilities were consistent with a Residual Functional Capacity (RFC) to perform sedentary work.
Id. at 43. The ALJ concluded that Plaintiff could “occasionally climb ramps and stairs;
occasionally balance, stoop, crouch, kneel and crawl; [could not] climb ladders, ropes or
scaffolds; and should avoid even moderate exposure to hazards, such as unprotected heights,
moving machinery and automotive equipment.” Id. at 43. The ALJ concluded that Plaintiff
“should avoid moderate exposure to temperature extremes, humidity and vibration” and could
“occasionally interact with coworkers” but could have “no interaction with the public.” Id.
Based on a review of the record in conjunction with Plaintiff’s allegations, the ALJ
concluded that Plaintiff’s “allegations are disproportionate to the objective medical evidence.”
Id. at 46. The ALJ found that Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however [her] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible.” Id. at 44.
The ALJ determined that Plaintiff’s residual functional capacity precludes her ability to
perform past relevant work, and her ability to perform the full range of sedentary work is
impeded by additional limitations. Id. at 49. Having questioned the vocational expert (VE)
regarding whether jobs existed in the national economy for an individual of the Plaintiff’s age,
education, work experience, and residual functional capacity, the ALJ noted the VE’s testimony
that given those factors, Plaintiff could perform the requirements of occupations such as
surveillance system monitor, eye glass inserter, and assembler. Id. The ALJ ultimately ruled that
Plaintiff had not been under a disability, as defined in the Social Security Act, from July 20,
2012, through August 25, 2014, the date of the ALJ’s decision. Id.
Plaintiff claims that the ALJ failed to properly consider all the record evidence in
determining that she did not meet the requirement for Listing 14.02 and that the Appeals Counsel
failed to properly consider medical evidence submitted after the hearing date. Docket 13 at 3.
II. EVALUATION PROCESS
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.1 The burden rests upon the plaintiff throughout the first four steps
of this five-step process to prove disability, and if the plaintiff is successful in sustaining her
burden at each of the first four levels, then the burden shifts to the Commissioner at step five.2
First, the plaintiff must prove she is not currently engaged in substantial gainful activity.3
Second, the plaintiff must prove her impairment is “severe” in that it “significantly limits [her]
See 20 C.F.R. §§ 404.1520 (2012).
Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
20 C.F.R. §§ 404.1520(b) (2012).
physical or mental ability to do basic work activities . . . .”4 At step three the ALJ must conclude
that plaintiff is disabled if she proves that her impairments meet or are medically equivalent to
one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).5
If the plaintiff does not meet this burden, at step four she must prove that she is incapable of
meeting the physical and mental demands of her past relevant work.6 At step five, the burden
shifts to the Commissioner to prove, considering the plaintiff’s residual functional capacity, age,
education and past work experience, that she is capable of performing other work.7 If the
Commissioner proves other work exists which the plaintiff can perform, plaintiff is given the
chance to prove that she cannot, in fact, perform that work.8
III. STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision to deny benefits is limited to
determining whether the decision is supported by substantial evidence and whether the
Commissioner applied the correct legal standard. Crowley v. Apfel, 197 F.3d 194, 196 (5th Cir.
1999), citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019,
1021 (5th Cir. 1990). The court has the responsibility to scrutinize the entire record to determine
whether the ALJ’s decision was supported by substantial evidence and whether the proper legal
standards were applied in reviewing the claim. Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir.
1983). A court has limited power of review and may not reweigh the evidence or substitute its
20 C.F.R. §§ 404.1520(c) (2012).
20 C.F.R. §§ 404.1520(d) (2012). If a claimant’s impairment meets certain criteria, that claimant’s
impairments are “severe enough to prevent a person from doing any gainful activity.” 20 C.F.R. §
20 C.F.R. §§ 404.1520(e) (2012).
20 C.F.R §§ 404.1520(g)(2010).
Muse, 925 F.2d at 789.
judgment for that of the Commissioner,9 even if it finds that the evidence leans against the
The Fifth Circuit has held that substantial evidence is “more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted).
Conflicts in the evidence are for the Commissioner to decide, and if there is substantial evidence
to support the decision, it must be affirmed even if there is evidence on the other side. Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court’s inquiry is whether the record, as a whole,
provides sufficient evidence that would allow a reasonable mind to accept the conclusions of the
ALJ. Richardson v. Perales, 402 U.S. 389, 401 (1971). “If supported by substantial evidence, the
decision of the [Commissioner] is conclusive and must be affirmed.” Paul v. Shalala, 29 F.3d
208, 210 (5th Cir. 1994), citing Richardson, 402 U.S. at 390.
Plaintiff argues that the Commissioner’s decision should be reversed on two separate
grounds. Docket 13 at 3. First, Plaintiff claims that at step three, the ALJ did not consider all of
the medical evidence in the record in determining that Plaintiff did not meet the requirements for
Listing 14.02. 11 Id. at 5-6. Plaintiff argues that the ALJ’s consideration of the listing for lupus
“fails to accurately assess the Plaintiff’s condition as a whole” and that the ALJ’s failure to
mention certain office visits amounts to selective reading of the record. Id. at 5-6.
At the hearing, Plaintiff argued the ALJ selectively relied on medical records where
Plaintiff was doing well, choosing evidence most unfavorable to Plaintiff and ignoring records
evidencing the severity of Plaintiff’s condition. Plaintiff points to records from treating physician
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).
Listing 14.02 has two parts, (A) and (B); satisfaction of either is sufficient to meet the listing.
Dr. King showing “complaints of joint pan, knots on her feet, and swelling and warmth” and
other records reflecting her complaints about pain, puffiness, swelling, and fatigue. Docket 13 at
6. Plaintiff argued that this objective medical evidence satisfies part (A) of Listing 14.02.
Plaintiff acknowledged that satisfying part (B) requires a showing of evidence that is more
subjective but argued that Plaintiff’s testimony about her limited ability to perform the activities
of daily living are sufficient to meet part (B).
The Commissioner responds that the ALJ’s extensive discussion of the medical evidence,
albeit in a separate section of her decision, supports her determination that Plaintiff does not
satisfy all of the criteria specified in either part (A) or (B) of Listing 14.02. Docket 14 at 5. At
the hearing, the Commissioner argued that Plaintiff’s subjective complaints are not supported by
objective medical findings, and therefore, cannot support a finding under either part (A) or (B).
In order to establish a finding of disability based on the listings, a plaintiff must establish
that she manifests all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530
(1990). When evaluating whether a listing is met, the ALJ is required to discuss the evidence
offered in support of a claim for disability and explain the basis for his or her conclusion as to
whether the listing is satisfied. Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007); see also 42
U.S.C. § 405(b)(1). “The ALJ is not always required to do an exhaustive point-by-point
discussion” regarding step three. Id. However, the ALJ is required to identify the relevant listed
impairments and compare each of the listed criteria to the evidence of Plaintiff’s symptoms in
order to ensure that the ALJ’s decision is based on substantial evidence. Cook v. Heckler, 783
F.2d 1168, 1172 (4th Cir.1986).
At step three the ALJ concluded that “lupus does not meet the criteria of listing
14.02 because examinations show normal gait, fine and gross manipulation, no joint
deformities, and good range of motion of all extremities/joints. Examinations fail to
demonstrate any severe fatigue since the claimant is alert and in no acute distress. There
is no evidence of fever or weight loss.” Docket 7 at 41-42. Then, in section five of her
decision, the ALJ discussed extensively the evidence offered in support of Plaintiff’s
claim and explained the basis for her conclusion that Plaintiff did not satisfy a listing and
ultimately, is not disabled. Docket 7 at 43-48.
Considering each of Plaintiff’s severe impairments, the ALJ concluded that the
“objective medical evidence shows the claimant has normal gait, strength, reflexes, and
pulses, no neurological deficits, no significant joint changes, no significant loss of
motion, and a non-tender abdomen. [… She] is alert, oriented, cooperative, maintains
good eye contact and has clear speech. She generally has a normal mood and affect.” Id.
at 46. Considering Plaintiff’s own testimony, the ALJ concluded that her “allegations are
disproportionate to the objective medical evidence” and proceeded to identify the many
discrepancies between Plaintiff’s testimony and the medical record. Id. at 46-48.
For example, the ALJ discussed Dr. King’s finding that on February 15, 2011,
Plaintiff stated she was “doing well” and denied any pain, any redness, warmth or
swelling in her joints, and rashes, fevers, chest pain or shortness of breath. Id. at 44, 275.
Plaintiff was “tolerating medications well and find[ing] them helpful” and functioning
well with activities of daily living. Id. While Dr. King’s June 2011 records document
Plaintiff’s complaints of “generalized joint pain,” “swelling and warmth,” and the
presence of “some knots on her feet,” his physical exam demonstrated Plaintiff’s ability
to “obtain 100% fist and claw bilaterally with really no active swelling” in her hands. Id.
at 44, 270, 273. Although Plaintiff’s inflammatory arthritis appeared “a bit worse,” her
wrists and left elbow appeared “okay” with only trace swelling in her right elbow.” Id. at
44, 273. Notably, Plaintiff’s “shoulders, hips, knees, and ankles [were] without obvious
redness, warmth, swelling, or effusion.” Id.
The ALJ thoroughly discussed Dr. W. Winn Chatham’s records dating from
August 18, 2011 through November 28, 2012. Id. at 44-45. Specifically, on April 19,
2012, Plaintiff reporting doing well “without flares of skin rash, mouth ulcers, or joint
swelling.” Id. at 45, 500. On August 23, 2012, Plaintiff continued to have “complaints of
fatigue and some mild joint stiffness/swelling” but was “much improved.” Id. at 521. The
ALJ noted the November 28, 2012 visit during which Plaintiff complained of back pain,
neck pain, and joint stiffness, but also acknowledged that Plaintiff had normal range of
motion and strength and no tenderness or swelling in her shoulders, elbows, wrists,
fingers, hips, knees, and ankles. Id. at 45, 516, 518.
The ALJ also discussed Dr. Eddleman’s rheumatology consultation on January
20, 2014, during which Plaintiff reported that she experienced some transient fatigue,
joint pain, and myalgia, but otherwise was not experiencing any other systemic symptoms
and was tolerating her therapy well. Id. at 45-46, 635-37. Dr. Eddleman’s physical
examination demonstrated no significant abnormalities other than Raynaud’s, and
regarding that condition, Dr. Eddleman instructed Plaintiff to keep hands warm. Id.
The ALJ’s in-depth discussion of the medical evidence, including the records
Plaintiff argues were ignored, satisfies the Court that the ALJ considered all of the
evidence and explained her basis for determining that Plaintiff did not satisfy Listing
14.02. Because the ALJ’s determination that Plaintiff does not satisfy Listing 14.02 is
supported by substantial evidence, the Court declines to reverse the ALJ’s decision on
Plaintiff’s second ground for reversal of the Commissioner’s decision is that the
Appeals Council failed to properly consider medical evidence submitted after August 25,
2014, the date of the ALJ’s decision. Docket 13 at 6-9. In support of this argument,
Plaintiff cites records from Anderson Regional Medical Center (“Anderson”) dated
October 15, 2014 and December 1, 2014. Docket 7 at 9-30. In denying Plaintiff’s request
for review, the Appeals Council noted that it had considered the additional evidence, but
found the information did not provide a basis for changing the ALJ’s decision. Id. at 2.
Specifically, the Appeals Council found that the new information was about a later time
that had no bearing on Plaintiff’s disability status on or before August 25, 2014. Id. The
denial of benefits remains supported by substantial evidence here.
Plaintiff asserts that the new and material records from Anderson are pertinent to
her disability status prior to the ALJ’s decision: they demonstrate that her lupus had
deteriorated beyond what ALJ found and contradict the ALJ’s RFC conclusion that she
was capable of performing a restricted version of sedentary work. At the hearing,
Plaintiff argued that the new records were so close in time to the ALJ’s decision that they
clearly relate back to the period prior to her decision and evidence the increased severity
of Plaintiff’s symptoms and conditions.
The Commissioner responds, and the Court agrees, that the new records are not
“material” because they concern the status of Plaintiff’s conditions after the ALJ’s decision.
Commissioner cites Castillo v. Barnhart in support of its contention that evidence of
deterioration after the date of the ALJ’s decision is not relevant. Castillo v. Barnhart, 325 F.3d
550, 551-52 (5th Cir. 2003) (“materiality inquiry requires determining whether the evidence
relates to the time period for which the disability benefits were denied”). Even if the new records
had been part of the record before the ALJ, the Commissioner argued that it would not have
changed the outcome because the objective examinations did not assign limitations proportionate
with Plaintiff’s subjective complaints.
When new evidence becomes available after the ALJ’s decision and there is a reasonable
likelihood that the new evidence could change the outcome of the decision, a remand is
appropriate so that this new evidence can be considered. Govea v. Astrue, 2008 WL 2952343, *4
(W.D. Tex. 2008). “New evidence” must meet three criteria: (1) it must be new, and not merely
cumulative of what is already in the record; (2) it must be material, i.e., relevant, probative, and
likely to change the outcome of the case; and (3) the claimant must demonstrate good cause for
not having incorporated the new evidence into the administrative record. Pierre v. Sullivan, 884
F.2d 799, 803 (5th Cir. 1989). The Fifth Circuit has stated:
The requirement of materiality is an important one. The concept ‘material’
suggests that the new evidence must be relevant and probative. However, not
every discovery of new evidence, even if relevant and probative, will justify a
remand to the Secretary, for some evidence is of limited value and insufficient to
justify the administrative costs and delay of a new hearing.
Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981).
The Appeals Council’s (“AC”) obligations in evaluating a claimant’s request for review
are articulated in Sun v. Colvin:
In deciding whether to deny the claimant's request for review, the AC must
consider and evaluate any ‘new and material evidence’ that is submitted, if it
relates to the period on or before the ALJ's decision. 20 C.F.R. § 404.970(b). If
the AC finds that the ALJ's ‘action, findings, or conclusion is contrary to the
weight of the evidence currently of record,’ the AC will then review the case. Id.
Otherwise, it will deny the claimant's request for review. The regulations do not
require the AC to provide a discussion of the newly submitted evidence or give
reasons for denying review. See Meyer, 662 F.3d at 706 (‘In sum, the regulatory
scheme does not require the Appeals Council to do anything more than what it did
in this case, i.e., ‘consider new and material evidence ... in deciding whether to
grant review.’’(citation omitted)); Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d
780, 785 (11th Cir.2014) (‘[W]e hold that the Appeals Council is not required to
explain its rationale when denying a request for review.’); Martinez v. Barnhart,
444 F.3d 1201, 1208 (10th Cir.2006) (‘[The claimant] points to nothing in the
statutes or regulations that would require such an analysis where new evidence is
submitted and the Appeals Council denies review.’).
Sun v. Colvin, 793 F.3d 502, 511–12 (5th Cir. 2015) (emphasis added).
When a claimant properly submits new and material evidence to the Appeals Council, the
Court must consider the entire record, including the evidence which the claimant has submitted
for the first time to the Appeals Council, even if the Appeals Council denied review.
Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th Cir. 2005) (holding that the Commissioner’s
final decision necessarily includes the Appeals Councils’ denial of review, but the ALJ’s
decision remains binding).
The evidence Plaintiff submitted, while new, is not material because it does not relate to
the period on or before the ALJ’s decision. The Anderson records indicate that on October 15,
2014, Plaintiff presented with intermittent and fluctuating moderate knee and hand pain that was
relieved by medication. Docket 7 at 9. Her physical examination revealed a normal gait, full
range of motion in all of her joints, and no edema in her extremities. Id. at 11. The records
acknowledge Plaintiff’s long history of lupus as well as her history of Raynaud’s and advise
Plaintiff only “to keep extremities warm and covered with any cold exposure.” Id. at 12. The
December 1, 2014 records again reflect intermittent and fluctuating moderate joint pain that is
aggravated by movement and walking. Id. at 14. Despite Plaintiff’s complaints of joint pain and
swelling, the physical examination reflects normal gait and normal joints without any edema. Id.
at 15-16. With regard to Plaintiff’s lupus, the records state that she was “doing well.” Id. at 16.
Because the new records contain no evidence relating to Plaintiff’s condition before the
ALJ’s decision, there is no reasonable possibility that the ALJ would have ruled differently if she
had these records to review. Considering the entire record, the ALJ’s findings are not contrary to
the weight of the evidence of record, and the Appeals Council was proper in denying Plaintiff’s
request for review.
The Court finds that the ALJ’s determination that Plaintiff does not satisfy Listing 14.02
is supported by substantial evidence. Upon review of the record evidence as well as the “new”
records submitted to the Appeals Council, there is not a reasonable likelihood that the Anderson
records would have changed the outcome reached by the ALJ. Because the ALJ’s decision is
supported by substantial evidence, the Court affirms the Commissioner’s decision. A final
judgment in accordance with this memorandum opinion will issue this day.
SO ORDERED, this the 22nd day of February, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE
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