# White v. O'Malley (CONSENT)

> District Court, M.D. Alabama · June 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10034758

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** June 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating that it “has not decided whether the HALLEX carries the force of law” but, even assuming that it did, finding no prejudice in failing to abide by the manual

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION

LACEY WHITE, )
)
Plaintiff, )
)
v. ) CASE NO. 1:23-CV-697-KFP
)
MARTIN J. O’MALLEY, )
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Lacey White filed this action seeking
review of the Social Security Administration’s (SSA) decision to deny her application for
supplemental security income (SSI). The Court construes White’s supporting brief (Doc.
11) as a motion for summary judgment and the Commissioner’s opposition brief (Doc. 14)
as a motion for summary judgment. After scrutiny of the record and motions submitted by
the parties, the Court finds that White’s motion is due to be DENIED, the Commissioner’s
motion is due to be GRANTED, and the decision of the Commissioner must be
AFFIRMED.
I. STANDARD OF REVIEW
This Court’s role in reviewing claims brought under the Social Security Act is a
narrow one. The scope is limited to determining whether substantial evidence in the record
as a whole supports the Commissioner’s decision and whether the correct legal standards
were applied. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
Substantial evidence is more than a scintilla but less than a preponderance. Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The Court may not reweigh evidence or
substitute its judgment for that of the Commissioner, and, even if the evidence

preponderates against the Commissioner’s factual findings, the Court must affirm if the
decision is supported by substantial evidence. Winschel, 631 F.3d at 1178; Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
II. PROCEDURAL BACKGROUND
White applied for SSI with an alleged disability onset date of December 31, 2008.

R. 11. When her application and reconsideration appeal were denied, she requested a
hearing before an ALJ. Id. Ultimately, the ALJ issued a decision finding White not
disabled. R. 8–19. The Appeals Council declined review, making the Commissioner’s final
decision ripe for judicial review. R. 1–4; see 42 U.S.C. § 405(g).
III. THE ALJ’S DECISION

The ALJ determined that White last met the insured status requirements of the
Social Security Act on December 31, 2008. R. 14. She then found that White did not engage
in substantial gainful activity during the period from her alleged onset date through her
date last insured. The ALJ also determined that White had the following medically
determinable impairments: degenerative joint disease of the metatarsophalangeal joints,

congenital hyperextension of the knees, and seizure disorder. Id. Ultimately, the ALJ
concluded that White did not have a severe impairment or combination of impairments. R.
16. Therefore, the ALJ determined White was not disabled. R. 19.
IV. DISCUSSION
White presents three issues on appeal: (1) the ALJ violated 20 C.F.R. § 404.935
when she excluded material evidence received after the hearing date and a month before

her decision; (2) the Appeals Council erred when it denied review despite the additional
evidence submitted to the ALJ after the hearing; and (3) considering the post-hearing
evidence, the ALJ’s decision is not supported by substantial evidence. Doc. 11 at 19.
A. The ALJ did not violate 20 C.F.R. § 404.935.
White argues the ALJ violated 20 C.F.R § 404.935 when she excluded the evidence

White’s attorney submitted after the hearing, a month before the ALJ issued her decision
to deny White benefits. Doc. 11 at 2. In addition, White asserts that 20 C.F.R. § 404.935 is
inapplicable and does not bar the ALJ from admitting the post-hearing evidence because
she informed the SSA of the evidence in her initial social security application, placing the
burden on the SSA to obtain some or all of the evidence. Id. Next, White asserts that she

was unaware that the post-hearing evidence, which she had obtained over two years before
the hearing, was not in the record at the time of the hearing. Finally, White argues that,
even if 20 C.F.R. § 404.935 does apply to her, the ALJ still erred because she was required
to accept the evidence pursuant to the 20 C.F.R. § 404.935(b)(3)(i) exception because her
mental impairments prevented her from submitting the evidence earlier. The

Commissioner argues White failed to meet her burden to produce evidence proving she
had a medically determinable severe impairment during the relevant period, failed to
demonstrate she was prejudiced by the ALJ’s decision to exclude the post-hearing
evidence, and failed to show that the ALJ did not satisfy her duty to develop the record.
Doc. 14 at 3, 8.1
1. White’s reference to the post-hearing evidence in her SSI
application does not satisfy the 20 C.F.R. § 404.935(a)
requirement.

It was White’s burden to produce evidence to prove her disability. If she could not
produce the evidence, she was required to demonstrate that she made a good faith effort to
obtain evidence and, despite those good efforts, could not obtain it on time.
“It is well-established that the ALJ has a basic duty to develop a full and fair record.”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). “Nevertheless, the claimant
bears the burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim.” Id. The regulations state that “[a]lthough [the
SSA] take[s] a role in developing the evidentiary record in disability claims, claimants and
their appointed representatives have the primary responsibility under the Act to provide

evidence in support of their disability . . . claims.” Soc. Sec. Ruling, Ssr 17-4p; Titles II &
Xvi: Resp. for Developing Written Evidence, SSR 17-4P (S.S.A. Oct. 4, 2017).
“Consequently, [the SSA] expect[s] claimants and their representatives to make good faith
efforts to ensure that [the SSA] receive[s] complete evidence.” Id. “When [the claimant]

1 For the Court to remand a case to the Commissioner for further development of the record, the Court must
determine “whether the record reveals evidentiary gaps which result in unfairness or clear prejudice.” See
Graham v. Apfel, 129 F.3d 1420, 1423 (internal quotation marks omitted). Because the Court finds the ALJ
properly excluded the post-hearing evidence, the Court need not analyze whether White was prejudiced by
the exclusion. It would be contrary to 20 C.F.R. § 404.935(a) if the district court’s determination that an
ALJ complied with the regulation when excluding evidence then resulted in the court reviewing the properly
excluded evidence in the first instance. Further, White never alleges that she was prejudiced; thus, the claim
is waived. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long
held that an appellant abandons a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”).
fail[s] to cooperate with [the SSA] in obtaining evidence, [the SSA] will have to make a
decision based on information available in [the claimant’s] case.” 20 C.F.R. § 416.916.
When a claimant requests a hearing with an ALJ, pursuant to 20 C.F.R § 404.935,

the claimant:
should also submit information or evidence as required by § 404.1512 or any
summary of the evidence to the administrative law judge. Each party must
make every effort to ensure that the administrative law judge receives all of
the evidence and must inform us about or submit any written evidence, as
required in § 404.1512, no later than 5 business days before the date of the
scheduled hearing. If you do not comply with this requirement, the
administrative law judge may decline to consider or obtain the evidence,
unless the circumstances described in paragraph (b) of this section apply.

20 C.F.R. § 404.935(a).

White argues that 20 C.F.R. § 404.935 is inapplicable because she informed the
SSA about the post-hearing evidence when she cited to the evidence in her SSI application.
Doc. 11 at 10. However, 20 C.F.R. § 404.935 instructs claimants on submitting written
evidence to an ALJ at the hearing stage; it does not address or create an exception for
evidence mentioned in a SSI application. Merely citing to records in an application is
insufficient to inform the ALJ about the written evidence later when a hearing is requested.
Additionally, White was represented by an attorney throughout these proceedings.
In regard to representatives, SSR 17-4P explains:
[I]t is only acceptable for a representative to inform us about evidence
without submitting it if the representative shows that, despite good faith
efforts, he or she could not obtain the evidence. Simply informing us of the
existence of evidence without providing it or waiting until 5 days before a
hearing to inform us about or provide evidence when it was otherwise
available, may cause unreasonable delay to the processing of the claim,
without good cause, and may be prejudicial to the fair and orderly conduct
of our administrative proceedings.
SSR 17-4P (S.S.A. Oct. 4, 2017). White’s attorney emailed the post-hearing evidence to
the ALJ three weeks after the hearing and stated, “Please find enclosed additional VA
records of treatment concerning Ms. White, dated July 27, 2001, through January 25, 2010,
that Ms. White provided us. It does not appear these records are part of Ms. White’s
electronic file.” R. 30. The email also directed the ALJ to an addendum from a clinical

psychologist from March 2007. R. 30. Thus, White’s attorney failed to inform the ALJ of
the post-hearing evidence or submit the post-hearing records to the ALJ as required by 20
C.F.R. § 404.935(a).
2. White had the post-hearing evidence in her possession at the time
of the hearing and was aware that the post-hearing evidence was
not in the record.

White’s arguments to excuse the failure to comply with the regulation are
unavailing. First, White asserts that it was a “surprise” that the post-hearing evidence was
absent from the record at the time of the hearing (Doc. 11 at 4) and states in the email
submission to the ALJ that “it does not appear” the evidence was part of her file. The
suggestion that she was unaware of the missing post-hearing evidence and only realized its
absence after the hearing misrepresents the record. At the hearing, the ALJ asked White
and her attorney multiple times about the 2008 evidence. The ALJ stated, “I wasn’t really
able to find anything for the 2008 date. There is stuff before. There is stuff after. Is there
anything that really pinpoints into what her functioning was like at that time?” R. 188. In
response, White’s attorney stated:

Judge, I don’t see -- I didn’t see 2008. I think that what’s happened here is -
- as I’ve talked about in my brief, where when they put her out here’s a lot of
stuff or a lot of documents or statements about what her functional problems
were when in the one in ’03 and ’05 but I don’t see anything in ’08 but there’s
something that was going on in ’11 that I -- let’s see in -- but that’s 2020. So,
Judge, I don’t think we’ve got stuff in 2008, but I do have a lot of stuff I
wanted to talk about where military and civilian observed functional
limitations in the pertinent timeframe.

R. 188–189 (emphasis added). Thus, the ALJ informed White’s attorney that the record
contained no documents from 2008, and the attorney confirmed the same—that there were
no 2008 documents.
Additionally, the ALJ made several attempts to develop the record through
questioning White and her attorney. For example, the ALJ asked White, “[A]s far as you
can remember, you were not seeing any doctors for any of your health impairments around
the 2008 time period. Is that – as far as you can remember, is that accurate?” R. 189. In
response, White stated, “I’m not gonna say I wasn’t seeing anyone” and “[i]t was very hard
[] to get to [the doctors] living 80 something miles from the facility.” R. 189. The ALJ
noted, “[B]ut it looks like you were able to do it every other year . . . or most other years,
so what changed?” R. 189. White responded, “Besides me, I don’t know.” R. 189. The ALJ
then said, “Okay. I just want to make sure the record is complete.” R. 189.
Later in the hearing, the ALJ again asked White and her attorney about the 2008
time period. R. 193. For example, she asked, “And just so I’m clear I just want to make
100 percent sure that, you know, we have everything that is obtainable . . . . Do you
remember where you were living around 2008?” R. 193. White did not know where she
was living in 2008 but said she lived with her mom for the past twenty years in different

locations. R. 193–194. The ALJ also asked whether White had any recollection of her daily
activities or whether she was involved in anything in 2008, and White responded that she
did not recall. R. 195. Then, the ALJ asked if she had ever been involved in any clubs,
organizations, churches, community activities, or veterans’ groups over the last 15 years

or so. White said she was involved in a VFW for a little while but could not recall when.
R. 195.
Finally, at the end of the hearing, the ALJ asked White’s attorney, “Are we waiting
on any additional records . . . or can the record be closed?” R. 202. White’s attorney
confirmed that the record could be closed and stated that he and White gave the ALJ all

the evidence they had. R. 202. The ALJ closed the record. R. 203.
As discussed above, neither White nor her attorney informed the ALJ at the hearing
that the post-hearing evidence existed. To the contrary, they expressly confirmed that they
had submitted all the evidence to the ALJ, with no mention of the post-hearing evidence
White had possessed for two years. In addition, the attorney’s email to the ALJ provided

no reason for their failure to timely produce the post-hearing evidence.
3. White’s argument that the 404.935(b) exception applies fails.
For the first time, in her brief to this Court, White provides a reason for not
submitting the post-hearing evidence on time: her mental impairments prevented her from
doing so. She asserts her mental impairments interfered with her ability to function and

caused her limitation in her ability to understand, carry out, and remember instructions.
Doc. 11 at 14–15.
The ALJ was not required to sua sponte go through each exception pursuant to
404.935(b) when no exception or justification was presented to her. It was White’s burden
to inform the ALJ that the evidence existed. After missing the deadline, it was White’s
burden to inform the ALJ why she missed the deadline. Because she provided no
justification and did not mention that her mental impairments prevented her from

submitting the evidence, the ALJ was not required to review the evidence under 20 C.F.R.
§ 404.935, and the Court cannot reweigh the evidence now or decide in the first instance
whether White had mental impairments that limited her ability to produce the post-hearing
evidence. See Haight v. Comm’r of Soc. Sec., No. 22-1364, 2023 WL 3467042, at *2 (6th
Cir. Jan. 18, 2023) (“[S]ince Section 404.935 exists to ensure that petitioners supply ALJs

with medical evidence in a timely manner, declining to admit untimely evidence because
of an unexplained delay is permissible”) (emphasis added).
4. The cases White relies upon are unpersuasive.
In her reply, White points to Jonathan V. v. Comm’r of Soc. Sec., No. 6:18-CV-1350
(TWD), 2020 WL 1270655, at *4 (N.D.N.Y. Mar. 17, 2020); Long v. Commissioner of

Social Security, Case No. 1:20-CV-1490 2021 WL 2530216 (N.D. Ohio June 21, 2021);
and Easton v. Saul, No. 4:18-CV-2289, 2019 WL 4697021, at *11 (N.D. Ohio Sept. 9,
2019), report and recommendation adopted sub nom. Easton v. Comm’r of Soc. Sec., No.
4:18-CV-2289, 2019 WL 4694226 (N.D. Ohio Sept. 26, 2019), three non-binding cases, to
show that the ALJ was obligated to consider the post-hearing evidence. Doc. 15 at 3–8.

The Court finds these cases unpersuasive for the reasons discussed below.
In Jonathan V., the claimant submitted evidence to the ALJ two weeks after his
hearing and one month before the ALJ issued a decision. Jonathan V., 2020 WL 1270655,
at *4. The court found the ALJ did not address any violations of the 20 C.F.R. § 404.935(a)
five-day rule or any applicable 20 C.F.R. § 404.935(b) exceptions and held that “because
the evidence was not addressed or exhibited by either the ALJ or the Appeals Council, it
remains unclear if this additional evidence was ever properly considered by the Agency.”

Id. Although the Jonathan V. court did not reach a finding on the materiality of the
evidence, the court remanded because the evidence directly contradicted portions of the
ALJ’s analysis.
The facts here differ from Jonathan V., as the ALJ in that case did not mention the
post-hearing evidence. White admits that “[u]nlike the instance case, in Jonathan V., there

was no discussion about whether the submission violated the 5-day rule.” Doc. 15 at 4.
Here, the ALJ discussed the post-hearing evidence and decided whether to admit the
evidence pursuant to 20 C.F.R. § 404.935. She found the evidence was submitted in
violation of the five-day rule and declined to admit it because the requirements of 20 C.F.R.
§ 404.935(b) were not met. R. 11. The ALJ explained:

[T]he claimant’s representative submitted additional records on February 28,
2023. No five-day letter was submitted prior to the hearing indicating that
these records were outstanding. This case involves a date last insured that
was over 14 years ago, so the task of obtaining old records should have been
undertaken at the outset of the case, not after the hearing was held. The
undersigned notes that the print date on the records is from well over two
years ago, and the representative indicated that those records were in the
possession of the claimant. Given the lack of five-day letter, the procedural
posture of the case, and the fact that these records have been in the possession
of the claimant for over two years prior to the hearing, there is insufficient
justification for receiving these records. Therefore, they were not added to
the record or exhibited.

R. 12. Thus, unlike in Jonathan V., it is clear that the ALJ considered whether to admit the
post-hearing evidence under the five-day rule. The regulation, 20 C.F.R. § 404.935(a),
explicitly states that the ALJ “may decline to consider or obtain the evidence” submitted
“later than 5 business days before the date of the scheduled hearing.” Accordingly, with
White failing to demonstrate any good faith efforts to submit the evidence before the

hearing and failing to present any exception, the ALJ was permitted to reject the post-
hearing evidence, and the Court finds Jonathan V. unpersuasive.
Similarly, in Long, the claimant submitted evidence to the ALJ after the hearing but
before the ALJ issued her decision. 2021 WL 2530216, at *3. The Long court found that
the 20 C.F.R § 404.935(b)(3)(iv) exception applied and held that, because the claimant

acted diligently to obtain the post-hearing evidence and submitted the evidence before the
ALJ issued her decision, the ALJ was required to consider the records in evaluating her
claim. Id. at 5. However, White’s case differs from Long. The ALJ in Long did not mention
the post-hearing evidence, and Long demonstrated that a § 404.935(b) exception applied.
As discussed above, the ALJ in this case considered whether to admit White’s post-hearing

evidence but ultimately found that it did not meet the requirements of 20 C.F.R §
404.935(a) and that none of the § 404.935(b) exceptions applied. R. 11–12. This Court may
not reweigh the facts to determine whether White’s mental illness prevented her from
submitting the evidence she had in her possession two years before the hearing. Thus, the
Court finds Long unpersuasive.

Finally, White points to Easton as “an even more similar fact pattern.” Doc. 15 at 6.
In that case, the claimant informed the ALJ of additional evidence seven days before his
hearing but submitted the evidence only one day before the hearing, and the ALJ excluded
it. Easton, 2019 WL 4697021, at *11. The court there relied on the Hearings, Appeals and
Litigation Law Manual (“HALLEX”) I-2-6-58, which states that, “[i]f a claimant or
appointed representative informs an ALJ about evidence at least five business days before
the date of the scheduled hearing, but does not submit the evidence at least five business

days before the date of the scheduled hearing,” then “the ALJ will . . . consider the evidence
regardless of whether the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply.”
Id. The Easton court found the ALJ focused solely on the timing of the submission of the
records and disregarded the fact that the claimant informed him of the records seven days
before the hearing. Id. Because the claimant informed the ALJ of the post-hearing evidence

seven days before the hearing, he complied with the five-day rule, and the ALJ was
required to accept it. See 20 C.F.R. § 404.935(a). Thus, the ALJ in Easton failed to comply
with the SSA’s own regulations, and the court held this error was not harmless. Id. at 12.
White’s case differs from Easton because, as discussed above, she failed to inform
the ALJ of the post-hearing evidence before the hearing. White failed to comply with the

five-day rule; thus, the ALJ was permitted to exclude the post-hearing evidence.
Additionally, the court in Easton relied on the HALLEX, but White’s reliance on Easton
and the HALLEX is misplaced. First, as White recognizes, the Eleventh Circuit has not
held that the HALLEX has the force of law. See e.g., McCabe v. Comm’r of Soc. Sec., 661
F. App’x 596 (11th Cir. 2016) (stating that it “has not decided whether the HALLEX carries

the force of law” but, even assuming that it did, finding no prejudice in failing to abide by
the manual). In fact, most jurisdictions have held that HALLEX is not binding and has no
force and effect. See e.g., Newton v. Apfel, 209 F.3d 448, 460 (5th Cir. 2000) (“HALLEX
does not carry the authority of the law”); Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000)
(HALLEX is an “internal guidance tool,” which “has no legal force and is not binding”).
In sum, the Court finds the ALJ did not err by excluding the post-hearing evidence pursuant
to 20 C.F.R. § 404.935(a) and is not swayed by the non-binding cases presented in White’s

reply.
Thus, the ALJ did not violate 20 C.F.R. § 404.935 when she excluded the post-
hearing evidence received three weeks after the hearing.
B. The Appeals Council did not err when it denied review of the ALJ’s
decision.

White also argues the Appeals Council erred when it denied review of the ALJ’s
decision despite the existence of the post-hearing evidence that, according to White, was
new, material, and chronically relevant, necessitating the Appeals Council’s review under
20 C.F.R. § 404.970(a). Doc. 11 at 15. The Commissioner argues the Appeals Council
properly denied White’s request for review and asserts that the post-hearing evidence was
neither new nor material. Doc. 14 at 12.
‘“With a few exceptions, the claimant is allowed to present new evidence at each
stage of this administrative process,’ including before the Appeals Council.” Washington

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

Ingram, 496 F.3d at 1261; 20 C.F.R. §§ 404.970(b), 416.1470(b)), and there must be a
“reasonable probability that the additional evidence would change the outcome of the
decision.” 20 C.F.R. § 404.970(a)(5). 2
“When the Appeals Counsel refuses to consider new evidence submitted to it and

denies review, that decision . . . is subject to judicial review.” Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Whether evidence submitted to the
Appeals Council is new, material, and chronologically relevant is a question of law subject
to the district court’s de novo review. Washington, 806 F.3d at 1321.
White’s argument pertains only to the post-hearing evidence she submitted to the

ALJ.3 Notably, White informed the Appeals Council that the post-hearing evidence was
submitted to the ALJ “during the pertinent time frame post hearing but [was] not added to
the exhibit list,” but she failed to state that the evidence was “new, material, and
chronologically relevant” so that it required the Appeals Council review. R. 441.

2 As set forth in 20 C.F.R. § 404.970(b), “[t]he Appeals Council will only consider additional evidence
under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the
evidence as described in § 404.935 because: (1) Our action misled you; (2) You had a physical, mental,
educational, or linguistic limitation(s) that prevented you from informing us about or submitting the
evidence earlier; or (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control
prevented you from informing us about or submitting the evidence earlier. Examples include, but are not
limited to: (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing,
or through a friend, relative, or other person; (ii) There was a death or serious illness in your immediate
family; (iii) Important records were destroyed or damaged by fire or other accidental cause; (iv) You
actively and diligently sought evidence from a source and the evidence was not received or was received
less than 5 business days prior to the hearing; or (v) You received a hearing level decision on the record
and the Appeals Council reviewed your decision.”
3 White submitted additional evidence (other than the post-hearing evidence) to the Appeals Council when
she requested review. Specifically, “a statement from Leslie McDowell dated March 23, 2003 (1 page), a
document from the Physical Evaluation Board dated March 3, 2001 (1 page), and a journal from the
claimant dated January 27, 2007 (2 pages).” R. 2. The Appeals Council declined to exhibit the evidence
because it did not show a reasonable probability that it would change the outcome of the decision. R. 2.
White does not appeal that decision.
White now argues that the post-hearing evidence is material because it addresses
the severity of her depression and seizures. She argues that it is chronologically relevant
because it addresses the 2007, 2008, and 2009 time periods. Doc. 11 at 16. Critically, White

fails to provide any support for the assertion that the evidence is new. Although the
evidence may be material and chronologically relevant, the requirement that the evidence
also be new is dispositive. The post-hearing evidence was submitted to the ALJ before the
ALJ issued her decision. It was not submitted “to the Appeals Council after the ALJ’s
decision,” as White claims; therefore, it was not new. See Hyde v. Saul, No. 2:18-CV-519-

SRW, 2019 WL 4780797, at *3 (M.D. Ala. Sept. 30, 2019) (citing Washington, 806 F.3d
at 1321 n.6.
Thus, the Appeals Council did not err when it denied review of the ALJ’s decision.
C. Substantial evidence supports the ALJ’s decision.
Finally, White alleges that the post-hearing evidence prevents a finding that

substantial evidence supports the ALJ’s decision that her depression was not a medically
determinable impairment or that her complex partial seizure was non-severe and did not
significantly impact her ability to work. Doc. 11 at 3 (citing R. 15-17); Doc. 11 at 17.
White’s argument is premised on her assertion that the post-hearing evidence established
that her depression was a medically determinable impairment and that her complex partial

seizures were severe and significantly impacted her ability to work. However, as discussed
above, the Court will not consider her post-hearing evidence as it finds that the ALJ
appropriately excluded the evidence from the record. Thus, the Court must determine if the
ALJ’s decision is supported by substantial evidence based solely on the record before it.
1. Substantial evidence supports the ALJ’s step-two determination.

White argues the ALJ’s severity determination of her seizure disorder and the
medical determinability of her depression were wrong. This determination occurred at step
two of the ALJ’s sequential process.
At step two of the sequential evaluation process, the ALJ must determine whether
an impairment is severe—that is, whether it “significantly limits [the claimant’s] physical
or mental ability to do basic work activities.” Gray v. Comm’r of Soc. Sec., 550 F. App’x
850, 853 (11th Cir. 2013) (citing 20 C.F.R. § 404.1520(c)); 20 C.F.R. § 404.1520(a)(4)(ii).

The claimant bears the burden of showing severity. Mathews v. Eldridge, 424 U.S. 319,
319 (1976). In evaluating step-two challenges, the district court must determine whether
substantial evidence supported the ALJ’s findings that an impairment was not severe and
instead was only a slight abnormality that would not be expected to interfere with the
claimant’s ability to work. Brady v. Heckler, 724 F.2d 914, 920–21 (11th Cir. 1984).

Here, the ALJ found that through the date last insured, December 31, 2008, White
had the medically determinable impairments of degenerative joint disease of the
metatarsophalangeal joints, congenital hypertension of the knees, and seizure disorder. R.
14.
a. White’s Depressive Disorder

The ALJ determined that White’s depressive disorder was not medically
determinable as of the alleged onset date and date last insured. R. 14. She explained that
“the medical evidence does not include any psychological testing or other medically
acceptable laboratory diagnostic techniques required to show psychological phenomena
during a period materially proximate to the alleged onset date and date last insured.”
Further, the ALJ noted that “the record contains treatment of depression that greatly
precedes the period at issue” (R. 14), including examinations and treatment from 1998,

2000, 2001, 2003, and 2005. The ALJ explained:
[White’s] depressive and personality disorders cannot be inferred to have
continued as of the alleged onset date and date last insured in the absence of
medical evidence as required by the [] regulations. Psychological disorders
can wax, wane, and even remit over time. Therefore, her symptoms and
limitations from 2005 are insufficient to establish their presence during the
material timeframe of this claim, December 2008, without supporting mental
status exams, psychological evaluations, objective signs, symptoms, or
laboratory findings.

R. 15. In addition, the ALJ considered White’s psychological examination in 2021, where
she was diagnosed with major depressive disorder and major neurocognitive disorder due
to a traumatic brain injury that occurred in the late 1990s. R. 15. The 2021 examiner opined
that, secondary to these diagnoses, White did not have the ability to understand, carry out,
and remember instructions or to respond appropriately to supervision, coworkers, and work
pressures. The ALJ found this opinion unpersuasive for two reasons. “First, the diagnosis
of neurocognitive disorder appears to be supported by the claimant’s reports, not in depth
neuropsychological testing, objective signs, symptoms, or laboratory findings.” R. 15
“Second, the presence of major depressive disorder in December 2021 does not support the
existence of this condition in the relevant period of 2008.” Id. Thus, the ALJ ultimately
found there was insufficient evidence during the relevant time period to find that White’s
depression was a medically determinable impairment.
“Under a substantial evidence standard of review, [White] must do more than point
to evidence in the record that supports [her] position; [she] must show the absence of
substantial evidence supporting the ALJ’s conclusion.” Sims v. Comm’r of Soc. Sec., 706
F. App’x 595, 604 (11th Cir. 2017) (citing Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th

Cir. 1991)). Here, White points to the post-hearing evidence to demonstrate that her
depression was a medically determinable impairment during the relevant time period,
which the Court has found was properly excluded. She has not pointed to the absence of
substantial evidence in the record before the ALJ. Thus, she has failed to meet her burden.
Further, the ALJ’s explanations provide the Court sufficient reasoning to determine the

proper legal analysis has been conducted and substantial evidence supports the decision.
See Ingram, 496 F.3d at 1260.
b. White’s Seizures
White argues that the post-hearing evidence shows that her complex partial seizures
are severe and significantly impact her ability to work. Doc. 11 at 17. For example, she

states that her seizures cause her to be exhausted for 24 hours. Id. She also states that she
complained of complex partial seizures several times a week and was told she could not
drive until she was seizure free for six months. Id. at 18.
The ALJ considered several pieces of evidence regarding White’s limitations
including third-party statements made by two fellow soldiers, her former supervisor, and

former employer; VA Office Treatment Records from September 2000 through October
2006 (R. 469–492); VA records concerning her disability ratings in 2001 and 2003; an
EEG from 1996; the opinions of Drs. Andre J. Fontana (R. 205–210) and Victoria L. Hogan
(R. 212–217), stage agency medical consultants; and White’s testimony. The ALJ analyzed
the severity of White’s seizure disorder and concluded, “After considering the evidence of
record, the undersigned finds that the claimant’s medically determinable impairments
could have reasonably been expected to produce some symptoms; however, the claimant’s

statements concerning the intensity, persistence and limiting effects of these symptoms are
not entirely consistent for the reasons explained in this decision.” R. 17. The ALJ further
explained:
The existence of a seizure disorder can also be inferred, but, again, the
severity, frequency, level of control, and work restrictions related to a seizure
disorder can vary greatly over time. Some individuals even attain complete
remission and regain their drivers’ licenses. Therefore, the undersigned is
unable to draw a reasonable inference of more than minimal work restrictions
related to this disorder at the time of the alleged onset date/date last insured.

The conclusion that the claimant did not have an impairment or combination
of impairments that significantly limited her ability to perform basic work
activities as of the date last insured is consistent with the objective medical
evidence and other evidence.

R. 18. In analyzing the two state agency medical consultants’ (Dr. Fontana and Dr. Hogan)
opinions, the ALJ noted that Dr. Fontana “opined that the claimant was restricted to less
than the full range of light work secondary to physical impairments as of the date last
insured.” R. 18. “Subsequently . . . [Dr. Hogan] determined that the evidence was
insufficient to determine the claimant’s work-related functioning secondary to physical
impairments as of the date last insured.” Id. The ALJ concluded that Dr. Fontana’s
restriction to light work was “not supported by the medical evidence of record which
contains minimal treatment leading up to the relevant period and which contains no
objective exam findings to support the conclusion that the claimant was expected to
experience more than minimal work-related restrictions for twelve continuous months
during the relevant period.” R. 18–19. Thus, the ALJ concluded that Dr. Hogan’s
“determination of insufficient evidence . . . is more persuasive as it is better supported and
more consistent with the medical evidence of record.” Id.

The ALJ also reviewed an office treatment record from Dr. Kenneth A. Stone at the
VA in January 2001, where, based on White’s seizure disorder and chronic pes anserine
bursitis, she was restricted to “no lifting, no weapons, and no duty where loss of
consciousness would be dangerous.” R. 469–72. The claimant was subsequently released
from active service in June 2001. R 19. The ALJ found Dr. Stone’s report unpersuasive

because “it relates to the claimant’s functioning seven years prior to the relevant period. At
that time, the claimant had restrictions secondary to pes anserine bursitis, a condition that
is not a medically determinable impairment during the relevant period.” Id. Again, the ALJ
noted that “there are no objective exam findings, lab findings, or symptoms in the record
to support this level of restriction secondary to seizure disorder during the relevant period

for the reasons described above.” Id.
Finally, the ALJ considered the third-party statements from Brian K. Rodgers, one
of White’s former squad leaders (dated 2001) (R. 391); Pamela Smith, one of White’s
former squad leaders (undated but discusses seizure incident from 2001) (R. 397); Oscar
Carr, a sergeant who worked with White (dated 2001) (R. 392); Bonnie Brown, White’s

former supervisor (dated 2003) (R. 393); Barbara Stone, White’s former employer (dated
2003) (R. 394); and Margaret White, White’s mother (dated 2023) (R. 433–434). The ALJ
found the statements unpersuasive “as to the claimant’s functioning during the relevant
period as they generally pertain to the claimant’s functioning several years outside of the
relevant period.” R. 19.
The ALJ’s explanations provide the Court sufficient basis to determine the proper

legal analysis has been conducted. See Ingram, 496 F.3d at 1260. Additionally, and as
discussed above, White fails to meet her burden to demonstrate that substantial evidence
does not support the ALJ’s determination that her complex seizure disorder was not severe.
Again, White merely points to examples from the post-hearing evidence to argue the ALJ’s
decision is not supported by substantial evidence. She does not “show the absence of

substantial evidence supporting the ALJ’s conclusion.” Sims, 706 F. App’x at 604. The
Court finds that substantial evidence supports the ALJ’s determination that White’s seizure
disorder is non-severe.
V. CONCLUSION
For these reasons, it is ORDERED as follows:

1. White’s motion for summary judgment (Doc.11) is DENIED.
2. The Commissioner’s motion for summary judgment (Doc. 14) is
GRANTED.
3. The Commissioner’s decision is AFFIRMED.
A final judgment will be entered separately.

DONE this 12th day of June, 2024.

/s/ Kelly Fitzgerald Pate
KELLY FITZGERALD PATE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10034758. Public record. Not legal advice.