Corbitt v. Commission of SSA

Filing 20

ORDER granting 12 Motion to Remand; declining to adopt 15 Report and Recommendation; sustaining in part 16 Objection. Signed by District Judge Carlton W. Reeves on 2/19/2013. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
BERNARD CORBITT

PLAINTIFF

v.

CAUSE NO. 3:10-CV-558-CWR-LRA

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

DEFENDANT

ORDER
Before the Court are the plaintiff’s motion to remand or reverse, Docket No. 12, the Report
and Recommendation of the United States Magistrate Judge, Docket No. 15, and the plaintiff’s
objection to the Magistrate Judge’s Report and Recommendation, Docket No. 16. The objection is
fully briefed, see Docket Nos. 17-18, and a telephonic hearing was held on December 4, 2012, to
consider the parties’ arguments in more detail. After reviewing the administrative record, the
arguments, and the applicable law, the plaintiff’s objection will be sustained in part and this matter
will be remanded to the Social Security Administration for a new hearing.
I.

Procedural History
In January 2008, Bernard Corbitt filed an application with the Social Security Administration

for disability insurance benefits (DIB) and supplemental security income (SSI). R. 18.1 He claimed
a disability onset date of October 6, 2005. Id. Corbitt’s insured status requirement was met through
September 2008. Id. at 20. The ALJ denied the claim in October 2009. Id. at 26. The Appeals
Council affirmed the denial in August 2010. Id. at 1. This suit followed.
Corbitt later filed a second application alleging a disability onset date of December 31, 2009.
Docket No. 15, at 2. The application was for SSI only; he could not seek DIB because his insured
status had expired. Corbitt’s second application was ultimately approved. Id.
In this action, therefore, the parties seek to resolve whether Corbitt was disabled between
October 6, 2005, and December 31, 2009, and therefore should have qualified for SSI and DIB in
his first application.

1

The administrative record, which is filed at Docket Nos. 6-1 through 6-10, will be cited as “R. __” using
the numbers Bates stamped on the lower right-hand corner of each page.

II.

Standard of Review
“On judicial review, the ALJ’s determination that a claimant is not disabled will be upheld,

if the findings of fact upon which it is based are supported by substantial evidence on the record as
a whole, and if it was reached through the application of proper legal standards.” Loza v. Apfel, 219
F.3d 378, 389 (5th Cir. 2000) (citations omitted). “Substantial evidence is more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007) (quotation marks and citation
omitted). “In applying the substantial evidence standard, we scrutinize the record to determine
whether such evidence is present.” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citation
omitted). “We may not reweigh the evidence or substitute our judgment for that of the
Commissioner.” Audler, 501 F.3d at 447 (citation omitted).
III.

Discussion
The Social Security Act defines disability as an “inability 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). To receive disability benefits, a claimant’s
impairment or combination of impairments, see id. § 423(d)(2)(B), must be “of such severity that
he is not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.” Id. § 423(d)(2)(A).
In arriving at a decision, the ALJ proceeds through the familiar five-step sequential
evaluation process, determining whether:
(1) the claimant is presently working; (2) the claimant has a severe impairment; (3)
the impairment meets or equals an impairment listed in appendix 1 of the social
security regulations; (4) the impairment prevents the claimant from doing past
relevant work; and (5) the impairment prevents the claimant from doing any other
substantial gainful activity. If, at any step, the claimant is determined to be disabled
or not disabled, the inquiry is terminated. The claimant bears the burden of showing
she is disabled through the first four steps of the analysis; on the fifth, the
Commissioner must show that there is other substantial work in the national
economy that the claimant can perform.
Audler, 501 F.3d at 447-48 (citation omitted); see Greenspan, 38 F.3d at 236. “The ALJ’s decision
2

must stand or fall with the reasons set forth in the ALJ’s decision, as adopted by the Appeals
Council.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (citation omitted).
Here, the ALJ determined that Corbitt had not engaged in substantial gainful activity since
October 6, 2005. R. 20. Corbitt was determined to suffer from three severe impairments: obesity,
arthralgia, and depression. Id. The ALJ concluded that Corbitt’s diabetes and sleep apnea were “not
severe, as they result in only minimal functional limitations (Stone v. Heckler, 752 F.2d 1099 (5th
Cir. 1985)). In particular, with regard to the claimant’s diabetes, the record contains no evidence of
any end organ damage which has resulted from this impairment.” Id. at 21. The ALJ found that
Corbitt’s impairments or combination of impairments did not meet or equal a listed impairment. Id.
The decision concluded that while Corbitt could not perform his past work, he had the residual
functional capacity to perform simple and repetitive sedentary work. Id. at 22-25.
A.

Evidence from Corbitt’s Treating Physician

The parties begin by disputing whether the Appeals Council adequately considered newlysubmitted evidence from Corbitt’s treating physician, Dr. Elias Abboud.2 Id. at 95.
As background, Corbitt proceeded pro se before and during his hearing with the ALJ. Id. at
30-31. At that time, the evidence from Dr. Abboud consisted of a handwritten note on a prescription
pad. Id. at 24, 223. Upon receiving the ALJ’s written opinion denying benefits, Corbitt retained
counsel, who then procured from Dr. Abboud a Medical Source Statement (MSS) and submitted it
to the Appeals Council along with an argument for remand or reversal. Id. at 146.
The MSS contained substantially more detail about Corbitt’s impairments and abilities than
Dr. Abboud’s handwritten note. Docket No. 7, at 19-24. It discussed Corbitt’s illnesses, including
diabetes and depression, their length and severity, and Dr. Abboud’s opinion that Corbitt was unable
to tolerate low stress jobs. Id. Dr. Abboud concluded that while Corbitt could work with a variety
of restrictions, his combination of impairments would likely result in him being absent from work
more than four days per month. Id. at 24.
Impairments (or combinations of impairments) severe enough to cause more than four work
absences a month, though, preclude a clamant’s ability to work successfully, according to the
2

Although the record is not clear as to whether Dr. Abboud began treating Corbitt in 2002 or 2004, see R.
95, Docket No. 7, at 19, it is not necessary to resolve that question. Either way, Dr. Abboud had been treating Corbitt
years before Corbitt’s claimed disability onset date.

3

vocational expert who testified at Corbitt’s hearing. R. 37-38. The MSS therefore contradicted the
ALJ’s earlier findings regarding Corbitt’s residual functional capacity. Where the ALJ found that
Corbitt could work, id. at 25, the MSS supports a finding that Corbitt cannot perform any job
existing in the national economy, see id. at 38.
The Appeals Council rejected the MSS without explanation. Id. at 1-2. That may or may not
be a HALLEX violation. Compare Newton, 209 F.3d at 459 (“the Appeals Council must
‘specifically address additional evidence or legal arguments or contentions submitted in connection
with the request for review.’”), with Higginbotham v. Barnhart, 405 F.3d 332, 335 n.1 (5th Cir.
2005) (“It appears that the requirement of a detailed discussion of additional evidence was
suspended by a memorandum from the Executive Director of Appellate Operations dated July 20,
1995.”).
Regardless, the Appeals Council erred when it declined to remand the case to resolve the
evidentiary conflict created by the MSS. Because the MSS was from the claimant’s longtime treating
physician and was therefore entitled to significant weight, and because it directly contradicted the
ALJ’s findings regarding Corbitt’s ability to successfully work, its submission should have triggered
a remand for further factual development or resolution of the conflict.
The lack of remand amplified an earlier problem. By not asking Corbitt’s treating physician
to provide more detailed findings than a handwritten note on a prescription pad, the ALJ did not
satisfy his duty to develop the record. See Newton, 209 F.3d at 458 (“The Fifth Circuit also imposes
a duty on an ALJ to develop the facts fully and fairly relating to an applicant’s claim for disability
benefits.”); Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (“When a claimant is not represented
by counsel, the ALJ owes a heightened duty to ‘scrupulously and conscientiously probe into, inquire
of, and explore for all relevant facts.’”). The treating physician’s opinion was too important to rely
solely upon the prescription pad note, and it could have been gathered without substantial delay. See
Newton, 209 F.3d at 455 (“The opinion of the treating physician who is familiar with the claimant’s
impairments, treatments and responses, should be accorded great weight in determining disability.”);
Chandler v. Astrue, No. 1:10-cv-60, 2010 WL 4362853, *5 (N.D. Miss. Oct. 27, 2010) (“It is clear
that additional development of the record, specifically in the form of opinions from the treating
physicians, could have been easily obtained, and probably would have been helpful, had the ALJ
sought such information.”).
4

The government defends the Appeals Council’s denial by arguing that Dr. Abboud’s MSS
was two months untimely. Docket No. 9, at 9-10. It claims “[i]t is proper for the Appeals Council
to reject evidence that post-dates the ALJ’s decision.” Id. at 10 (citing Johnson v. Heckler, 767 F.2d
180 (5th Cir. 1985)).
The Appeals Council, however, made no such finding. It wrote only that the MSS did “not
provide a basis for changing the [ALJ’s] decision,” suggesting that the MSS was considered on its
merits.3 R. 2. It is too late for the government to introduce new justifications for the Appeals
Council’s actions, since “[t]he ALJ’s decision must stand or fall with the reasons set forth in the
ALJ’s decision, as adopted by the Appeals Council.” Newton, 209 F.3d at 455 (citation omitted).
The government’s supporting cases are also inapposite. The Johnson decision held that
evidence of deterioration presented long after the Secretary’s final decision did not create a basis
for remand. Johnson, 767 F.2d at 183. That is not the situation here. Corbitt’s new evidence was
submitted to the Appeals Council, which means it was presented before the Commissioner’s final
decision. In addition, the MSS showed that Corbitt already had a disability condition, not that his
condition had deteriorated and should now be considered to be disabling.4
The regulations governing Social Security proceedings state that it is the substance of the
new evidence, not its date, that makes it eligible for Appeals Council review:
If new and material evidence is submitted, the Appeals Council shall consider the
additional evidence only where it relates to the period on or before the date of the
administrative law judge hearing decision. The Appeals Council shall evaluate the
entire record including the new and material evidence submitted if it relates to the
period on or before the date of the administrative law judge hearing decision. It will

3

While the Appeals Council did not reject the MSS as untimely, it did reject another piece of new
evidence, a report by Dr. Stella Brown, because it was dated six months after the ALJ’s hearing decision. R. 2. This
ruling was correct. The briefing suggests that Dr. Brown did not have had firsthand knowledge of Corbitt’s condition
during the time period relevant to Corbitt’s application. See Docket No. 7, at 2-3. Her new evidence was therefore
not material to whether Corbitt was disabled during that time.
The exclusion of Dr. Brown’s report illustrates why the Appeals Council should have given appropriate
weight to the MSS. Because Dr. Abboud had treated Corbitt throughout the relevant time period, his new evidence
was material to the Appeals Council’s decision. Consideration of the MSS should have resulted in remand.
4

The government also cites one district court opinion which found that because a “wheelchair prescription
is dated after the ALJ’s decision, it clearly falls outside of the relevant time period.” Thompson v. Comm’r of Soc.
Sec. Admin., No. 1:00-CV-656, 2002 WL 31098511, *7 (E.D. Tex. July 30, 2002). That does not support the
government’s broad claim that post-hearing evidence is always barred. The submission of a brand-new prescription,
without explanation, suggests deterioration, not earlier disability.

5

then review the case if it finds that the administrative law judge’s action, findings,
or conclusion is contrary to the weight of the evidence currently of record.
20 C.F.R. § 404.970(b) (emphasis added).5 That conforms with the Appeals Council’s undated letter
to Corbitt’s attorney stating that “You may send us more evidence or a statement about the facts and
the law in this case. Any more evidence must be new and material to the issues considered in the
hearing decision dated October 20, 2009.” R. 7.
Notwithstanding the government’s current arguments, the record shows that the Appeals
Council considered the MSS and rejected it on the merits. That decision was not supported by
substantial evidence. The MSS was in direct conflict with the ALJ’s findings on Corbitt’s
impairments and Corbitt’s ability to work successfully. Remand was appropriate.
The government’s final argument on this point contends that this dispute ultimately does not
matter since Corbitt used Dr. Abboud’s MSS to file a new application for SSI, which was successful.
Docket Nos. 9, at 10-11; 17, at 3. That seems to be a stronger argument for concluding that Social
Security’s error was not harmless, though, because it suggests that once an ALJ considered the MSS,
Corbitt properly qualified for benefits.
The Court finds that appropriate consideration of the MSS could reasonably have led a finder
of fact to a different conclusion on Corbitt’s first application for Social Security benefits. Another
hearing is necessary because Corbitt may be entitled to several years worth of lost payments as well
as any benefits (financial or procedural) that derive specifically from DIB as opposed to SSI only.
The matter will be remanded.
B.

The Severity of Corbitt’s Diabetes

The remaining issue warranting discussion is the ALJ’s step two determination that Corbitt’s
diabetes was “non-severe” because it “result[s] in only minimal functional limitations.” R. 21. The
finding was a product of legal error because the ALJ misapplied the Stone standard. The error is not
seriously disputed; the ALJ substituted his own definition of “severe” for the Fifth Circuit’s. E.g.,
Loza, 219 F.3d at 392-93 (“The ALJ erroneously applied his own standard involving a slight

5

Restated, evidence that post-dates a hearing does not mean it is unrelated to a claim and automatically
disallowed. The government cannot decline to consider new and material evidence provided to the Appeals Council
solely because it was submitted after the hearing, as long as it relates to the relevant period of (claimed) disability.
Such a refusal would be contrary to the plain language of the CFR.

6

restriction in ‘activities of daily living’ instead of this court’s standard based on a slight abnormality
having such minimal effect as would not be expected to interfere with ‘ability to work, irrespective
of age, education or work experience.’”); Beamon v. Astrue, No. 3:07-CV-208, 2009 WL 5184418,
*5-6 (S.D. Miss. Dec. 22, 2009) (remanding where ALJ “ruled that the Plaintiff’s knee impairments
[were] ‘not severe’ and affected his work ability ‘only mildly.’”).
The government contends that any Stone error was harmless because the ALJ found other
impairments to be severe, worked through the rest of the five-step evaluation process, and
considered diabetes in that process. Docket No. 9, at 6-8.
“Harmless error exists when it is inconceivable that a different administrative conclusion
would have been reached absent the error.” Bornette v. Barnhart, 466 F. Supp. 2d 811, 816 (E.D.
Tex. 2006) (citations omitted). “The major policy underlying the harmless error rule is to preserve
judgments and avoid waste of time.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (citation
omitted) (declining to remand case where remand “would produce the same result while wasting
time and resources.”).
The Court will assume without deciding that a harmless error analysis is necessary in
instances of Stone error.6 It will compare the record evidence to the ALJ’s findings to determine the
extent to which the ALJ considered diabetes in the remainder of the five-step evaluation process.
The record shows that Corbitt reported uncontrollable blood sugar levels with highs and lows
causing headaches and blurred vision. R. 93. The blurred vision caused Corbitt to stop driving
because he did not feel safe. Id. at 103, 108. Social Security disability determination reports by
Doctors Herzog and McDonnieal identified Corbitt’s diabetes as the primary or secondary diagnosis
at issue. Id. at 39-42. Dr. Whelan, the consulting psychologist, found that “[w]hen [Corbitt]
developed diabetes three years ago, he stopped participating in the work force.” Id. at 198. Corbitt’s
diabetes was linked to depression, as he reported “crying for the past three years since he found out
he had diabetes.” Id. at 196; see also id. at 105-06, 198. Dr. Wade, the sleep apnea consultant, found
6

The question remains disputed. Compare Key v. Astrue, No. 3:06-CV-1087, 2007 WL 2781930, *4 (N.D.
Tex. Sept. 4, 2007) (“the failure to apply the correct standard to the severity requirement has been held to be an
independent and sufficient reason to require remand in cases adjudicated beyond the second step of the sequential
evaluation analysis.”) with Jones v. Astrue, 851 F. Supp. 2d 1010, 1016 (N.D. Tex. 2012) (“there is no logic,
common sense, or Fifth Circuit support for a conclusion that reversal and remand is required, or appropriate, if the
only error of the administrative law judge was his failure to use the Stone severity standard at step two of his
analysis.”).

7

Corbitt’s diabetes and headaches “significant.” Id. at 224.
At the hearing, Corbitt identified diabetes as his worst problem. Id. at 33. He testified that
although he eats the right foods and exercises like his doctor orders, his blood sugar remains high
and his diabetes medicine creates stomach problems like diarrhea, which keeps him in the bathroom
“constantly.” Id. at 33-35; see also id. at 97, 130.7
In spite of this evidence, the ALJ’s consideration of diabetes was limited to his conclusion,
repeated twice, that it was not significant because there was no evidence of end organ damage. Id.
at 21, 23. That finding, however, is not necessarily outcome-determinative. See, e.g., Martin v.
Secretary, 492 F.2d 905, 909-10 (4th Cir. 1974) (“Nothing in the Social Security Act requires
rejection of a disability claim for hypertension or diabetes simply because the claimant has not yet
experienced end organ damage.”); Alcantara v. Astrue, 667 F. Supp. 2d 262, 272, 274 (S.D.N.Y.
2009) (affirming ALJ’s finding that the claimant’s diabetes was severe even though claimant
displayed no end organ damage); Ressegiue v. Secretary, 425 F. Supp. 160, 163 (E.D.N.Y. 1977)
(“That plaintiff’s concededly severe diabetic condition may not have been further complicated by
end organ damage, neuropathy, or acidosis is not a statutory ground for refusing to consider
plaintiff’s anatomical or physiological abnormality as a physical impairment ‘which . . . has lasted
or can be expected to last for a continuous period of not less than 12 months.’”).
The ALJ’s decision shows that he did not seriously consider the specific problems Corbitt’s
diabetes creates, such as the blurred vision and headaches. Nor did he discuss Corbitt’s diabetes or
related impairments during step three, in conjunction with the impairments he did find to be severe.
Id. at 21-22; see Loza, 219 F.3d at 393 (“the ALJ is required to consider the combined effects of all
impairments without regard to whether any such impairment, if considered separately, would be of
sufficient severity.”). In short, the ALJ did not think Corbitt’s self-described worst impairment
worthy of serious consideration.
Nor can the government fall back to argue harmless error based upon Corbitt’s residual
functional capacity assessment. As discussed above, the ALJ’s residual functional capacity
assessment was not supported by substantial evidence once Dr. Abboud’s MSS was submitted.

7

These paragraphs describe the evidence available to the ALJ. Once Dr. Abboud’s MSS was provided to
the Appeals Council, there was a greater body of evidence on Corbitt’s diabetes. See Docket No. 7, at 19-20.

8

The Court concludes that Corbitt’s diabetes was not sufficiently considered in the remainder
of the five-step evaluation process to justify a finding of harmless error. The issue should be
reconsidered on remand.8
IV.

Conclusion
The plaintiff’s objection is sustained in part. This matter is remanded to the Social Security

Administration for a new hearing.
SO ORDERED, this the 19th day of February, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

8

The Court need not take up Corbitt’s remaining arguments for remand or reversal.

9