Williams v. Colvin
Filing
33
MEMORANDUM OPINION AND ORDER. The decision of the Administrative Law Judge is AFFIRMED. (Ordered by Magistrate Judge Jeffrey L Cureton on 3/20/2015) (npk)
U.S. DlSTRl CT COllRT
NORTH ERN DI ~TI'I ' OF TEXAS
FLED
IN THE UNITED STATES DISTRICT ·COUR
FOR THE NORTHERN DISTRICT 0 . TEXA..,_ _
FORT WORTH DIVISION
_
_ _- - J
OU T
ll;<> --~-----
ZSA ZSA WILLIIAMS,
PLAINTIFF,
§
§
§
1 II'~
vs.
§CIVIL ACTION NO.§ 4:14-CV-114-BJ
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
DEFENDANT.
§
§
§
§
§
MEMORANDUM OPINION AND ORDER
Plaintiff Zsa Zsa Williams ("Williams") filed this action pursuant to Sections 405(g) and
1383(c)(3) of Title 42 of the United States Code for judicial review of a final decision of the
Commissioner of Social Security denying her claims for a period of disability and disability
insurance benefits under Title II, and supplemental security income ("SSI'') benefits under Title
XVI of the Social Security Act (" SSA").
For the reasons stated herein, the decision of the
Administrative Law Judge ("ALJ") is AFFIRMED.
I.
STATEMENT OF THE CASE
In April 2011 , Williams applied for social security benefits, alleging that her disability
began on September 30, 2010.
(Transcript ("Tr.") 11 , 171-83 .) Her applications were denied
initially and on reconsideration, and Williams requested a hearing before an administrative law
judge ("ALJ"). (Tr. 11 , 61-76, 79-84, 87.) An ALJ held hearings on February 12,2013 and June
25, 2013 and issued a decision on August 2, 2013 that Williams was not disabled. (Tr. 8-20, 27-
1
56.) On February 3, 2014, the Appeals Council denied William's request for review, leaving the
ALJ's decision to stand as the final decision ofthe Commissioner. (Tr. 1-4.)
II.
STANDARD OF REVIEW
Disability insurance is governed by Title II, 42 U.S.C. § 404 et seq., and SSI benefits are
governed by Title XVI, 42 U.S.C. § 1381 et seq., of the SSA. In addition, numerous regulatory
provisions govern disability insurance and SSI benefits.
See 20 C.P.R. Pt. 404 (disability
insurance); 20 C.P.R. Pt. 416 (SSI). Although technically governed by different statutes and
regulations, "[t]he law and regulations governing the determination of disability are the same for
both disability insurance benefits and SSI." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.
1994).
The SSA defines a disability as a medically determinable physical or mental impairment
lasting at least twelve months that prevents the claimant from engaging in substantial gainful
activity. 42 U.S.C. §§ 423(d), 1382(a)(3)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir.
1999). To determine whether a claimant is disabled and thus entitled to disability benefits, a
five-step analysis is employed. 20 C.P.R.§§ 404.1520,416.920. First, the claimant must not be
presently working at any substantial gainful activity. Substantial gainful activity is defined as
work activity involving the use of significant physical or mental abilities for pay or profit. 20
C.P.R. §§ 404.1527, 416.972. Second, the claimant must have an impairment or combination of
impairments that is severe. 20 C.P.R. §§ 404.1520(c), 416.920(c); Stone v. Heckler, 752 F.2d
1099, 11 01 (5th Cir. 1985). Third, disability will be found if the impairment or combination of
impairments meets or equals an impairment listed in the Listing of Impairments ("Listing"), 20
2
C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if disability
cannot be found on the basis of the claimant's medical status alone, the impairment or
impairments must prevent the claimant from returning to her past relevant work.
Id.
§§ 404.1520(e), 416.920(e). Fifth, the impairment must prevent the claimant from doing any
work, considering the claimant's residual functional capacity, age, education, and past work
experience. Id. §§ 404.1520(£), 416.920(f); Crowley v. Apfel, 197 F.3d 197, 197-98 (5th Cir.
1999). At steps one through four, the burden of proof is on the claimant to show she is disabled.
Crowley, 197 F.3d at 198. If the claimant satisfies this responsibility, the burden shifts to the
Commissioner to show that there is other gainful employment the claimant is capable of
performing in spite of her existing impairment. ld.
A denial of disability benefits is reviewed only to determine whether the Commissioner
applied the correct legal standards and whether the decision is supported by substantial evidence
in the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen,
837 F.2d 1378, 1382 (5th Cir. 1988).
Substantial evidence is such relevant evidence as a
responsible mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th
Cir. 2001). It is more than a mere scintilla but less than a preponderance. Id. A finding of no
substantial evidence is appropriate only if no credible evidentiary choices or medical findings
support the decision.
Id.
This Court may neither reweigh the evidence in the record nor
substitute its judgment for the Commissioner's but will carefully scrutinize the record to
determine if evidence is present. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837
F.2d at 1383.
3
III.
ISSUES
In her brief, Williams presents the following issues:
1. Whether the ALJ's hypothetical question to the vocational expert ("VE") reasonably
incorporated all of the disabilities recognized by the ALJ and whether the ALJ' s
reliance on the VE's testimony was unjustified; and
2. Whether the Appeals Council failed to consider new and material evidence submitted
to it after the ALJ' s decision.
(Plaintiffs Brief ("Pl.'s Br. ") at 1, 7-13.)
IV.
ALJ DECISION
In her August 2, 2013 decision, the ALJ found that Williams met the insured status
requirements of the SSA through September 30, 2013 and had not engaged in any substantial
gainful activity since September 30, 2010, her alleged onset of disability date. (Tr. 13.) The
ALJ further found that Williams had the following severe impairments: "obesity, lumbar
degenerative disc disease, hypertension with reduced kidney function, degenerative joint disease
of the knees, sleep apnea by history, major depressive disorder with psychotic features, pain
disorder, and anxiety disorder."
(Tr. 13.)
Next, the ALJ held that none of William's
impairments, or combination of impairments, met or equaled the severity of any impairments in
the Listing. (Tr. 46.) As to Williams' residual functional capacity ("RFC"), the ALJ stated:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity (RFC) to sustain work while
lifting/carrying 20 pounds occasionally and 10 pounds frequently. She is able to
stand/walk for 6 of 8 hours and sit for 6 of 8 hours. The claimant is limited to
occasional operation of foot controls. She is restricted from climbing, crouching,
and crawling. The claimant is limited to no more than occasional balancing,
stooping, and kneeling. She must avoid work at unprotected heights or around
4
hazardous moving machinery. Work must be indoors with an accessible
bathroom on the work premises. From a mental standpoint, the claimant is
capable of sustaining attention, concentration and pace sufficient for
understanding, remembering, and carrying out detailed, but noncomplex tasks
within a routine work setting on a regular and continuing basis. The claimant is
capable of occasional interaction with others, but the job should be one working
with things, rather than people.
(Tr. 15 (emphasis omitted).) The ALJ next found that Williams was unable to perform her past
relevant work. (Tr. 18.) Then, the ALJ opined, based on Williams' RFC, age, education, and
work experience, and the testimony of the VE, that Williams could perform other jobs of laundry
worker, inspector, and production worker that existed in significant numbers in the national
economy. (Tr. 18-19.) Consequently, the ALJ found that Williams was not disabled. (Tr. 1920.)
V.
DISCUSSION
A. Hypothetical Question to the VE
Williams argues that the ALI's hypothetical to the VE did not reasonably incorporate all
the disabilities of the claimant that were recognized by the ALJ. (Pl.'s Br. at 1, 7-10.) Williams
argues that the ALJ found at Step Two that she had the severe impairments of, inter alia, severe
major depressive disorder with psychotic features, pain disorder, and anxiety disorder and then
proceeded to find that Williams had moderate restrictions in concentration, persistence, or pace.
(Pl.'s Br. at 8.) Williams further states:
The hypothetical question to the VE does not adequately incorporate the
ALI's step 2 and [Psychiatric Review Technique ("PRT")] findings. Limiting the
hypothetical individual to detailed but not complex work does not adequately
convey limitations in concentration, persistence, or pace. The single mental
limitation in the hypothetical, "simple work" is not descriptive enough. . . . The
VE did not consider moderate deficiencies in concentration, persistence, or pace,
5
in formulating her answer. The Plaintiff would contend that the omission of the
PRT-type mental limitations, recognized by the ALJ in the decision, from the
hypothetical question, makes the reliance on the VE' s testimony fatally flawed.
Had the mental limitations been included in the question to the VE, the VE's
testimony may have been different. The fact that the jobs cited as example by the
VE carrying a reasoning level of 1 does not salvage the hypothetical question.
(Pl.'s Br. at 9.)
A vocational expert is called to testify because of his familiarity with job requirements
and working conditions. Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995). The ALJ is not
required to incorporate limitations into the hypothetical questions presented to the VE that he did
not find to be supported in the record. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
The hypothetical presented to the vocational expert must reasonably incorporate all of the
disabilities recognized by the ALJ' s residual functional capacity assessment, and the claimant or
his representative must be afforded the opportunity to correct any deficiencies in the ALJ's
question. Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). If the ALJ's hypothetical fails
to incorporate all such functional limitations, the ALJ' s determination is not supported by
substantial evidence. !d.
In this case, as noted above, the ALJ found that Williams had the mental RFC to be
"capable of sustaining attention, concentration and pace sufficient for understanding,
remembering, and carrying out detailed, but noncomplex tasks within a routine work setting,"
and "capable of occasional interaction with others, but the job should be one working with
things, rather than people." (Tr. 15.) Further, the ALJ included all such limitations that he had
found in the RFC determination in the hypothetical question to the VE. (Tr. 51.) The VE
testified that an individual limited to such work could perform the jobs of laundry worker,
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inspector, or production worker.
(Tr. 19, 52.) The ALJ relied on the VE's testimony that
specifically related to the functional limitations that the ALJ actually found in his RFC
assessment. Because the ALJ' s hypothetical to the VE "tracked" the RFC assessment, the ALJ
did not commit error. See Berry v. Astrue, No. 3:11-CV-02817-L (BH), 2013 WL 524331, at
*23 (N.D. Tex. Jan. 25, 2013), adopted in 2013 WL 540587 (N.D. Tex. Feb. 13, 2013) (Lindsay,
J.); Gipson v. Astrue, No. 3:10-CV-1413-BK, 2011 WL 540299, at *6 (N.D. Tex. Feb. 11, 2011)
(holding that hypothetical reasonably incorporated disabilities found by ALJ because question
closely tracked ALJ's RFC assessment, which took into consideration all impairments).
Williams argues that the ALJ's RFC determination and hypothetical to the VE limiting
her to detailed but not complex work does not adequately convey the limitation the ALJ had
earlier found that Williams had moderate restrictions in concentration, persistence, or pace.
(Pl.'s Br. at 7-1 0.)
The Court notes that federal regulations require that the ALJ follow
mandatory steps when evaluating the severity of mental impairments in claimants, which is
known as the "special technique." See 20 C.F.R. §§ 404.1520a, 416.920a. In evaluating mental
disorders, the ALJ first considers whether a claimant has a medically determinable mental
impairment. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00; 20 C.F.R. §§ 404.1520a(b)(l),
416.920a(b)(l). To do so, the ALJ must specify the symptoms, signs, and laboratory findings
that
substantiate the presence of each impairment.
20 C.F.R.
416.920a(b)(l); Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001).
§§ 404.1520a(b)(1),
For most Listings, the
regulations require the ALJ to evaluate the degree of functional limitation resulting from the
claimant's mental impairments pursuant to criteria identified in paragraphs A, B, and sometimes
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C, ofthe adult mental disorders contained in the Listings. See 20 C.P.R. Pt. 404, Subpt. P, App.
1 § 12.00; 20 C.P.R.§§ 404.1520a(b)(2) & (c), 416.920a(b)(2) & (c). 1 "Paragraph B" contains
four broad functional areas: 1) activities of daily living; 2) social functioning; 3) concentration,
persistence, or pace; 2 and 4) episodes of decompensation.
20 C.P.R. §§ 404.1520a(c)(3),
416.920a(c)(3); see 20 C.P.R. Pt. 404, Subpt. P, App. 1 § 12.00C. 3 The ALI's written decision
must incorporate pertinent findings and conclusions based on the technique and must include a
specific finding of the degree of limitation in each of the functional areas described. 20 C.P.R.
§§ 404.1520a(e)(4), 416.920a(e)(4).
After the ALJ rates the degree of functional limitation resulting from any mental
impairment, the ALJ determines the severity of such impairment. 20 C.P.R. §§ 404.1520a(d),
416.920a(d). If the degree of functional loss falls below a specified level in each of the four
areas, 4 the ALJ must generally find the impairment is not severe at Step Two of the sequential
evaluation process, which generally concludes the analysis and terminates the proceedings. 20
C.P.R. §§ 404.1520a(d)(l), 416.920a(d)(l).
If the ALJ finds that the mental impairment is
1
This applies to all adult mental disorders in the Listings except Listings 12.05 and 12.09. 20 C.F.R. Pt.
404, Subpt. P, App. I § 12.00A.
2
The category of concentration, persistence or pace "refers to the ability to sustain focused attention and
concentration to permit the timely and appropriate completion of tasks commonly found in work settings." 20
C.F.R. Part 404, Subpart P., App. I,§ 12.00C(3).
3
The degree of limitation in the first three functional areas is rated on a five-point scale, which includes
none, mild, moderate, marked, and extreme. 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). The degree of the
fourth functional area is rated on a four-point scale which includes none, one or two, three, and four or more. !d.
These four functional areas are known as the paragraph "B" criteria. See 20 C.F.R. Pt. 404, Subpt. P, App. I §
12.00C.
4
If the degree of limitation in the first three functional areas is "none" or "mild" and "none" in the fourth
area, the ALJ "will generally conclude that [the claimant's] impairment(s) is not severe, unless the evidence
otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work
activities." 20 C.F.R. §§ 404.1520a(d)(l), 416.920a(d)(l).
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severe at Step Two, then the ALJ must determine at Step Three if it meets or equals a listed
mental disorder ofthe Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). 5 To determine if
it meets or is equivalent in severity to a listed mental disorder, the ALJ must compare the
medical findings about the claimant's impairment and the rating of the degree of functional
limitation to the criteria of the appropriate listed mental disorder. 20 C.F .R. §§ 404.1520a(d)(2),
416.920a(d)(2).
If the impairment is severe but does not meet or equal a listed mental
impairment, then the ALJ must conduct an RFC assessment. 20 C.F.R. §§ 404.1520a(d)(3),
416.920a(d)(3); see Boyd, 239 F.3d at 705.
In this case, as stated above, the ALJ found that Williams suffered from, inter alia, the
severe impairments of severe major depressive disorder with psychotic features, pain disorder,
and anxiety disorder. (Tr. 13.) As to her mental impairments, the ALJ stated:
In activities of daily living, the claimant has mild restriction. In social
functioning, the claimant has moderate difficulties. With regard to concentration,
persistence or pace, the claimant has moderate difficulties. As for episodes of
decompensation, the claimant has experienced no episodes of decompensation,
Because the claimant's mental
which have been of extended duration.
impairments do not cause at least two "marked" limitations or one "marked
limitation and "repeated" episodes of decompensation, each of extended duration,
the "paragraph B" criteria are not satisfied.
The undersigned has also considered whether the "paragraph C" criteria
are satisfied. In this case, the evidence fails to establish the presence of the
"paragraph C" criteria.
(Tr. 14.)
5
A claimant will be found to have a listed impairment "if the diagnostic description in the introductory
paragraph [of the Listing] and the criteria of both paragraphs A and B (or A and C, when appropriate) of the listed
impairment are satisfied." 20 C.F.R. Pt. 4, Subpt. P, App. 1 § 12.00A. "The criteria in paragraph A substantiate
medically the presence of a particular mental disorder." ld. "The criteria in paragraphs B and C describe
impairment-related functional limitations that are incompatible with the ability to do any gainful activity." !d.
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In making her mental RFC determination, the ALJ relied, inter alia, on the following
evidence in the record: (1) fact that the record contained "no evidence of mental health
treatment;" (2) an August 9, 2011 psychological evaluation conducted by Gerald Stephenson,
Ph.D. at the request of the Disability Determination Services in which he, inter alia,: (a)
diagnosed Williams with major depressive disorder, anxiety disorder, and pain disorder; (b)
assigned her a Global Assessment of Functioning ("GAP") score 6 of 60; 7 and (c) noted that
Williams' financial difficulties "were a psychosocial stressor that contributed to her GAP
assessment" (Tr. 340-44); (3) an August 17, 2011 Mental Residual Functional Capacity
Assessment performed by State Agency Medical Consultant Richard Campa, Ph.D. ("SAMC
Campa") in which he opined, inter alia, that Williams could "understand, remember and carry
[out] detailed but not complex instructions, make decisions, attend and concentrate for extended
periods, accept instructions and respond to changes in routine work settings" (Tr. 361) and (4) an
August 17, 2011 Psychiatric Review Technique form in which SAMC Campa opined that
Williams suffered from major depressive disorder that was severe with psychotic features, an
anxiety disorder, and a pain disorder and (a) was mildly restricted in her activities of daily living;
(b) had moderate difficulties in maintaining social functioning and concentration, persistence, or
pace, and (c) no episodes of decompensation (Tr. 345-58). (Tr. 17-18.)
6
A GAF score is a standard measurement of an individual's overall functioning level with respect to
psychological, social, and occupational functioning. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV).
7
A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social,
occupational, or school functioning. DSM-IV at 34.
10
As to Williams' claim that, in essence, the ALJ's mental determination limiting Williams
to detailed but not complex work fails to adequately incorporate the moderate limitations in
concentration, persistence, and pace that the ALJ had found earlier, the Court notes that the
responsibility for determining the RFC falls to the ALJ. Ripley v. Chafer, 67 F.3d 552, 557 (5th
Cir. 1995). The paragraph B criteria limitation of having a moderate limitation in maintaining
concentration, persistence, and pace that the ALJ found following the "special technique" is not
an RFC assessment. Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *4 (S.S.A. July
2, 1996). Instead, it is used to rate the severity of Williams' mental impairments at Steps 2 and 3
of the sequential evaluation process. !d. "The mental RFC assessment used at steps 4 and 5 of
the sequential evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraphs B and C of the adult mental
disorder listings in 12.00 of the Listing of Impairments." !d.
These functions include the
consideration of the claimant's abilities to: (1) understand, carry out, and remember instructions;
(2) use judgment in making work-related decisions; (3) respond appropriately to supervision, coworkers, and work situations; and (4) deal with changes in a routine work setting. !d. at *6; see
also 20 C.F.R. §§ 404.1545(c), 416.945(c). Moreover, "[w]hile the regulations require the ALJ
to evaluate[] the limitations imposed by Plaintiffs mental impairments in certain areas and direct
the ALJ to proceed to the RFC determination if Plaintiffs impairments are found severe, the
regulations do not specifically require the ALJ to find that the limitations found in evaluating the
mental impairment must be word-for-word incorporated into either the RFC determination or the
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hypothetical question posed to the VE." Patterson v. Astrue, No. 1:08-CV -1 09-C, 2009 WL
3110205, at *5 (N.D. Tex. Sept. 29, 2009).
Based on the facts in this case, the ALJ' s mental RFC determination limiting Williams to
the performance of detailed but not complex work is not contradictory with the ALJ' s finding in
the "special technique" that Williams was moderately limited in her ability to maintain
concentration, persistence, or pace. See Bordelon v. Astrue, 281 F. App'x 418, 422-23 (5th Cir.
2008) (finding restriction in the RFC determination to rare public interaction, low stress, and
one-to-two step instructions reflect that the ALJ has reasonably incorporated the Plaintiffs
moderate concentration, persistence, and pace limitations); Westover v. Astrue, No. 4:11-CV816-Y, 2012 WL 6553102, at *9 (N.D. Tex. Nov. 16, 2012) ("[T]he ALJ's RFC determination
limiting [the claimant] to only performing work that involved detailed instructions does not
appear to be inherently contradictory with the ALJ's finding in the 'special technique' that [the
claimant] was moderately limited in his ability to maintain concentration, persistence, or pace.");
De La Rosa v. Astrue, No. EP-10-CV-351-RPM, 2012 WL 1078782, at *14-15 (W.D. Tex. Mar.
30, 2012) (holding that the ALJ's finding that claimant had moderate limitation in concentration,
persistence, and pace was properly accounted for in an RFC determination that claimant was,
inter alia, able to understand, remember, and carry out detailed but not complex instructions,
make decisions, and attend and concentrate for extended periods); Patterson, 2009 WL 3110205,
at *5 (holding, in essence, that the ALJ's finding that the claimant had a moderate limitation in
concentration, persistence, and pace was not inconsistent with his RFC determination that
claimant could understand, remember, and carry out more than simple instructions). The ALJ
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properly discussed the evidence in the record in making the RFC determination, explained the
reasoning for the RFC determination, and exercised his responsibility as factfinder in weighing
the evidence and in choosing to incorporate limitations into the RFC assessment that were most
supported by the record. Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). Because there is
substantial evidence in the record that supports the ALJ's evaluation of Williams' mental
impairments as well as her mental RFC assessment, remand is not required.
B. New Evidence Submitted to the Appeals Council
Williams also argues that the Appeals Council failed to properly consider a February 13,
2008 vision test performed by Elite Eye Care center that she submitted after the ALJ' s decision.
(Pl.'s Br. at 10-13.) Specifically, Williams states:
Plaintiff contends that the Appeals Council erred in failing to consider
whether or not claimant meets Listing 2.02, in denying her claim ....
The Plaintiff contends that the Elite Eye Clinic records constitute material
evidence. SAMC Dr. Nwankwo, MD[,] provides support that Williams has vision
problems. Dr. Nwankwo notes in the CE report that Williams has blurred vision,
wears glasses, and has bilateral double vision. Tr. 602. The evidence in support
of Williams' vision loss is documented by medically acceptable clinical and
laboratory diagnostic techniques. 20 C.F.R. 404.1526.
The ALJ does not list vision problems at step 2 of the decision. Tr. 13.
The Appeals Council adopts the ALJ's Unfavorable Decision without further
analysis. Tr. I. The Defendant, then, has never considered the limitations
imposed on Williams by her vision problems ....
13
In the instant case, the lack of review of the Elite Eye Care records
prevents the Defendant's denial of the claim from being based on substantial
evidence. The case should be remanded due to lack of meaningful review of
whether or not Williams meets Listing 2.02.
(Pl.'s Br. at 11-13.)
The Appeals Council, in its February 3, 2014 Notice of Appeals Council Action, denied
Williams' request for review of the ALJ's decision. (Tr. 1.) Specifically, the ALJ stated that, in
reviewing Williams' case, it had reviewed the "additional evidence listed on the enclosed Order
of Appeals Council." (Tr. 1.) Such order indicates that the Appeals Council reviewed the
medical records dated February 13, 2008 from Elite Eye Care that were submitted by Williams.
(Tr. 4.)
Social Security regulations allow claimants to submit new and material evidence to the
Appeals Council when requesting review of an ALJ's decision to deny benefits. 20 C.F.R. §
404.970(b); see Rodriguez v. Barnhart, 252 F. Supp. 2d 329, 331-32 (N.D. Tex. 2003). The
Appeals Council is required to evaluate the entire record, including any new and material
evidence submitted by the claimant. !d. at 332. The Appeals Council's decision to decline to
grant review of an ALJ' s decision is part of the "final decision" and, as such, is reviewable in
federal court. See Higginbotham v. Barnhart, 405 F.3d 332, 337-38 (5th Cir. 2005). In the Fifth
Circuit, "evidence submitted by a claimant to the Appeals Council does not per se require
remand to the Commissioner simply because the Appeals Council failed to address the evidence
in its decision." McGee v. Astrue, No. 08-0831, 2009 WL 2841113, at *6 (W.D. La. Aug. 28,
2009) (citing Higginbotham, 405 F.3d at 332 and Higginbotham v. Barnhart, 163 F. App'x 279,
281-82 (5th Cir. 2006) ("Higginbotham !!")).
"Evidence submitted for the first time to the
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Appeals Council is considered part of the record upon which the Commissioner's final decision
is based." Lee v. Astrue, No. 3:10-CV-155-BH, 2010 WL 3001904, at *7 (N.D. Tex. July 31,
2010). "A court considering [the] final decision should review the record as a whole, including
the new evidence, to determine whether the Commissioner's findings are supported by
substantial evidence, and should remand only if the new evidence dilutes the record to such an
extent that the ALJ's decision becomes insufficiently supported." Lee, 2010 WL 3001904, at *7
(citing Higginbotham II, 163 F. App'x at 281-82).
Based on the foregoing, the issue before the Court is whether the new evidence, the
February 13, 2008 examination records from Elite Eye Care, that Williams submitted to the
Appeals Council diluted the record to such an extent that the ALJ' s determination at Step Three
became insufficiently supported. To obtain a disability determination at Step Three, a claimant
must show that his impairments meet or equal one of the impairments in the Listing. 20 C.F.R. §
404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920 (a)(4)(iii), (d). As a threshold matter, the ALJ is
responsible for ultimately deciding the legal question whether a listing is met or equaled at Step
Three.
SSR 96-6p, 1996 WL 374180, at *3 (S.S.A. July 2, 1996); see also 20 C.F.R. §§
404.1526(c), 416.926( c) (stating that opinions that medical or psychological consultants
designated by the Commissioner offer on the issue of whether an impairment meets or equals the
requirements for a listed impairment will be considered); 20 C.F.R. §§ 404.1527(d), 416.927(d).
Whether a claimant's impairment meets the requirements of a listed impairment is usually more
a question of medical fact than opinion because most of the requirements are objective and
15
simply a matter of documentation, but it is still an issue ultimately reserved to the Commissioner.
SSR 96-Sp, 1996 WL 374183, at *3 (S.S.A. July 2, 1996).
The claimant has the burden of proving that his impairment or combination of
impairments meets or equals a listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Selders v.
Sullivan, 914 F.2d 614, 619 (5th Cir. 1990). "For a claimant to show that his impairment
matches [or meets] a listing, it must meet all of the specified medical criteria." Zebley, 493 U.S.
at 530 (emphasis in original). An impairment, no matter how severe, does not qualify if that
impairment exhibits only some of the specified criteria. !d. The court will find that substantial
evidence supports the ALJ' s finding at Step Three if the plaintiff fails to demonstrate the
specified medical criteria. Selders, 914 F.2d at 619-20.
A review of the February 13, 2008 examination records from Elite Eye Care indicates
that Williams' unaided vision was 20/400 in each eye. (Tr. 872.) However, her corrected vision
appears to be 20/30 in each eye. (Tr. 872; see Defendant's Brief at 9.) To meet section 2.02 of
the Listing, which deals with loss of central vision acuity, Williams must provide evidence
showing that the "[r]emaining vision in the better eye after best correction is 20/200 or less." 20
C.F.R., Pt. 404, Subpt. P, App. 1 § 2.02. Thus, the evidence submitted by Williams does not
support her claim that she has met section 2.02 of the Listing. As a result, the Court finds that
the new evidence does not dilute the record to such an extent that the ALJ' s determination
became insufficiently supported, and, therefore, remand is not required.
16
CONCLUSION
The ALJ's decision is affirmed in all respects.
SIGNED March 20, 2015 .
U
ON
TATES MAGISTRATE JUDGE
JLC/knv
17
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