Nelson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

STEPHANIE NELSON,

Plaintiff,

v. CASE NO. 6:18-CV-700-T-MAP

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________/

ORDER

This is an action for review of the administrative denial of disability insurance benefits

(DIB) and period of disability benefits. See 42 U.S.C. § 405(g). Plaintiff argues the Administrative

Law Judge (ALJ) erred by failing to properly consider her pain complaints and that the Appeals

Council erred in denying her request for review of the ALJ’s decision. After considering the

parties’ joint memorandum (doc. 18) and the administrative record, I find that the ALJ’s decision

that Plaintiff is not disabled is in accordance with the law and supported by substantial evidence.

I also find the Appeals Council did not err in denying Plaintiff’s request for review. I affirm the

Commissioner’s decision.

A. Background

Plaintiff Stephanie Nelson, born on May 22, 1971, was 39 years old on her alleged onset

date of February 9, 2011. She earned an associate degree in computer-aided drafting and has prior

work experience as a line cook (R.48). She is single, and lives with three roommates. Plaintiff’s

date of last insured is December 31, 2016. She alleges disability due to chronic asthma, bulging

discs, herniated discs, carpal tunnel in her right hand, left knee replacement, right knee

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compensation pain, tendonitis and bursitis in her right shoulder, and arthroscopy second digit (R.

225). She testified these impairments cause daily, chronic pain; she rates her pain as a three to a

five on a scale of one to ten (with pain medication, heating pad, and Bio Freeze) (R. 55). Her right

knee gives out once or twice a day. She has tried using a cane, but it did not help with steadiness

and caused discomfort and pain (R. 57). When ambulating, she uses a crutch or a shopping cart;

when shaving her legs in the shower she uses a shower chair (R. 57). Plaintiff testified she can

walk twenty to thirty minutes at a time, and can stand fifteen to twenty minutes (R. 57-58). She

assists with household chores such as small loads of laundry, sweeping, vacuuming, mopping,

dusting, and cleaning dishes, but has to take frequent breaks (R. 59-60, 61). While she is able to

get dressed on her own, she sits down to put her pants on as she loses her balance standing up (R.

60).

After hearing on January 25, 2017, the ALJ found that Plaintiff suffers from the severe

impairments of degenerative disc disease of the cervical, lumbar, and thoracic spine; a right foot

disorder; a bilateral knee disorder; a right shoulder disorder; asthma; obesity; and insomnia (R.

21). But the ALJ determined that Plaintiff is not disabled, because she retains the residual

functional capacity (RFC) to perform less than a full range of sedentary work (R. 24). Specifically,

the ALJ found Plaintiff restricted as follows:

She could never climb ladders, ropes, or scaffold. She could never crawl. She

could occasionally climb ramps or stairs, balance, stoop, kneel, or crouch. She

required the option to sit/stand every 20-30 minutes for 5 minutes at a time without

leaving the workstation. She could frequently reach with her right upper extremity.

She should have avoided concentrated exposure to temperature extremes, vibration,

pulmonary irritants, and workplace hazards.

(R. 24). The ALJ found that, with this RFC, Plaintiff could not perform her past relevant work but

could perform jobs that existed in significant numbers in the national economy, including the jobs

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of charge account clerk, call out operator, and telephone quotation clerk (R. 34). The Appeals

Council denied review (R. 1). Plaintiff, after exhausting her administrative remedies, filed this

action.

B. Standard of Review

To be entitled to DIB, a claimant must be unable 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.” See 42 U.S.C. § 423(d)(1)(A). A “‘physical or mental impairment’

is an impairment that results from anatomical, physiological, or psychological abnormalities which

are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” See 42

U.S.C. § 423(d)(3).

The Social Security Administration, to regularize the adjudicative process, promulgated

detailed regulations that are currently in effect. These regulations establish a “sequential

evaluation process” to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520,

416.920. If an individual is found disabled at any point in the sequential review, further inquiry is

unnecessary. 20 C.F.R. § 404.1520(a)(4). Under this process, the Commissioner must determine,

in sequence, the following: (1) whether the claimant is currently engaged in substantial gainful

activity; (2) whether the claimant has a severe impairment(s) (i.e., one that significantly limits her

ability to perform work-related functions); (3) whether the severe impairment meets or equals the

medical criteria of Appendix 1, 20 C.F.R. Part 404, Subpart P; (4) considering the Commissioner’s

determination of claimant’s RFC, whether the claimant can perform her past relevant work; and

(5) if the claimant cannot perform the tasks required of her prior work, the ALJ must decide if the

claimant can do other work in the national economy in view of her RFC, age, education, and work

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experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant is entitled to benefits only if

unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137, 142 (1987); 20 C.F.R. §

404.1520(f), (g).

In reviewing the ALJ’s findings, this Court must ask if substantial evidence supports those

findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The ALJ’s

factual findings are conclusive if “substantial evidence consisting of relevant evidence as a

reasonable person would accept as adequate to support a conclusion exists.” Keeton v. Dep’t of

Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citation and quotations

omitted). The Court may not reweigh the evidence or substitute its own judgment for that of the

ALJ even if it finds the evidence preponderates against the ALJ’s decision. See Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s “failure to apply the correct

law or to provide the reviewing court with sufficient reasoning for determining the proper legal

analysis has been conducted mandates reversal.” Keeton, 21 F.3d at 1066 (citations omitted).

C. Discussion

1. pain standard

Plaintiff asserts the ALJ erred by failing to properly evaluate her testimony about her pain.

Specifically, Plaintiff recognizes that the ALJ may reject a claimant’s subjective testimony about

pain but maintains that the ALJ failed to comply with the Eleventh Circuit’s “pain standard.” This

standard, articulated in Holt v. Sullivan, requires: 1) evidence of an underlying medical condition

and either a) objective medical evidence confirming the severity of the alleged pain, or b) that the

objectively determined medical condition can be reasonably expected to give rise to the alleged

pain. Holt, 921 F.2d 1221, 1223 (11th Cir. 1991). As both Plaintiff and the Commissioner

indicate, the applicable regulation governing the evaluation of subjective complaints is 20 C.F.R.

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§ 404.1529. Pursuant to the first step of this ruling and the applicable regulation, the ALJ

determines whether the claimant has a medically determinable impairment that could reasonably

be expected to produce the claimant’s alleged symptoms. SSR 16-3p; 20 C.F.R. § 404.1529. For

the second step, the ALJ evaluates the “intensity and persistence” of the claimant’s symptoms and

determines the extent to which the symptoms limit the claimant’s ability to perform work-related

activities. The ALJ should consider the following factors: 1) daily activities; 2) location, duration,

frequency, and intensity of pain or other symptoms; 3) factors that precipitate and aggravate the

symptoms; 4) the type, dosage, effectiveness, and side effects of any medication the individual

takes or has taken to alleviate pain or other symptoms; 5) treatment, other than medication, the

individual receives or has received to relieve pain or other symptoms; 6) any measures other than

treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his

or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7) any other

factors concerning the individual’s functional limitations and restrictions due to pain or other

symptoms. See 20 C.F.R. § 404.1529(c)(1), (c)(3); Social Security Ruling 16-3p.1

The ALJ’s decision shows she followed the regulatory framework in determining

Plaintiff’s RFC. Specifically, in evaluating Plaintiff’s subjective complaints, the ALJ stated she

“has considered all symptoms and the extent to which these symptoms can reasonably be accepted

as consistent with the objective medical evidence and other evidence, based on the requirements

of 20 CFR 416.929 …” (R. 24). Although this is standard language, it directly addresses the

1 Social Security Ruling 16-3p rescinded a previous social security ruling that concerned the

credibility of a claimant. See SSR 16-3p, 82 Fed. Reg. 49,462, 49,463 (Oct. 25, 2017). SSR 16-

3p removed the term “credibility” from its sub-regulatory policy because the Social Security

Administration’s regulations did not use that term. And SSR 16-3p clarified that “subjective

symptom evaluation is not an examination of an individual’s character.” Id.

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Eleventh Circuit’s pain standard; it is not improper on its face if supported by substantial evidence.

See Danan v. Colvin, 8:12-cv-7-T-27TGW, 2013 WL 1694856, at *3 (M.D. Fla. Mar. 15, 2013).

Here, the ALJ discussed Plaintiff’s hearing testimony, pain questionnaires, medical evidence and

opinion evidence (R. 24-33). In fact, the ALJ’s decision includes a very detailed summary of the

medical evidence, reflecting that the ALJ carefully considered Plaintiff’s total left knee

arthroplasty in February 2011, her bunionectomy in June 2011, her physical therapy, her pain

management, her imaging reports, her injections in her right knee and shoulder, her right hallux

toe problems, her asthma and shortness of breath, and her intermittent back pain. The ALJ also

discussed that Plaintiff swam four days a week in 2012; reported using a cane at times in 2014 and

2015; smoked, had high blood pressure, and obesity; and her pain was often well-controlled with

medication (R. 24-33).2 In concluding that Plaintiff’s statements about the intensity, persistence

and limiting effects of her symptoms and limitations are not entirely consistent with the evidence,

the ALJ provided substantial support. She stated:

The undersigned finds the claimant’s alleged allegations and testimony to

be only partially consistent with the evidence. The medical evidence does

not establish weakness, fatigue, pain, shortness of breath, anxiety or any

other symptoms of the level and severity that would result in debilitating

limitations. Nor does not medical evidence establish any medication side

2 Plaintiff asserts the ALJ’s statement that she swam four times a week is not supported by

substantial evidence as she could not find support for that statement in her medical records.

However, as the Commissioner indicates, the Pain Management of Central Florida progress notes

show that on May 9, 2012, Plaintiff reported “going to pool, more exercise now doing well overall”

(R. 441); on June 6, 2012, reported “going swimming x4 days” (R. 438); July 12, 2012, reported

she was “very active this month doing a lot of swimming” (R. 435); and on August 1, 2012,

reported “has been a little rough this month – very active. Swimming an extra day a week- residual

pain, hard to function at work” (R. 432). Similarly, Plaintiff questions the ALJ’s statement that

she rated her pain as a 1-3; she maintains that her treatment records show she rated her pain as a

4-6. While my review shows that on some days Plaintiff described her pain as higher than 1-3, I

agree with the Commissioner and find substantial support for the ALJ’s assessment of Plaintiff’s

subjective pain symptoms. See doc. 18, p.21.

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effects that would result in debilitating limitations, and while at hearing,

the claimant reported restrictive side affects [sic] from her medication, as

recently as July 2016 she denied this was an issue (Exhibit 15F). The

claimant does not require use of a brace on the upper or lower extremities,

and while she has reported using a cane at times, there is little to no

mention of the use of such a device in the medical evidence, and the

claimant acknowledged at the hearing that a cane was not prescribed by a

physician. The claimant has not required recurrent inpatient

hospitalizations for physical problems, crisis center visits, recurrent

surgeries, or prolonged physical therapy. The claimant has regularly

reported that her pain was a 1-3 on a scale of 1-10, which is far from

debilitating, and at times, she has acknowledged walking and swimming

up to four days a week for exercise, Her gait was mostly reported as

normal, and while she alleged at hearing that he knee would give out daily,

her reports to doctors fail to establish anywhere near this frequency. She

has generally been found to have normal strength and sensation

throughout her body, and straight leg raise tests have been negative. Her

most frequent treatment has come from the Physicians Associates, and

generally, this has been simply to get refills on medication. Moreover, it

has regularly been stated that her pain and asthma is [sic] controlled with

her medication. The claimant’s activities of daily living are self-

restricted, as no treating source has advised the claimant to stay home all

day, lie down during the day, or to restrict activities of daily living in any

manner. Nor has the claimant been advised to refrain from performing all

gainful work activity.

(R. 33).3 Like formulating a claimant’s RFC, weighing the subjective symptoms is within the

ALJ’s province. To the extent Plaintiff asks me to re-weigh the evidence or substitute my opinion

for that of the ALJ, I cannot. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). If the

ALJ’s findings are based on the correct legal standards and are supported by substantial evidence,

3 Plaintiff takes issue with the ALJ’s statements that her asthma was under control and that she did

not require recurrent inpatient hospitalizations. I find the ALJ’s assessment supported by

substantial evidence. The ALJ thoroughly discussed Plaintiff’s hospitalizations in July 2014 and

February 2015 for asthma exacerbations as well as her emergency room visit in January 2015 for

an asthma exacerbation (R. 30-31). While outpatient records document treatment for asthma and

wheezing, as the Commissioner indicates many of the records show Plaintiff had no respiratory

distress, minimal to no wheezing, normal respiratory rhythm and effort, and normal lung

examinations. Even when examination revealed that Plaintiff was wheezing (February 25, 2015),

the progress note indicated Plaintiff denied shortness of breath while showering or doing dishes

(R. 712). See doc. 18, p.22.

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the Commissioner’s decision must be affirmed even if I would have reached a different conclusion.

See Bloodsworth, 703 F.2d at 1239. In the end, the ALJ’s decision is supported by substantial

evidence.

2. Appeals Council

When she requested Appeals Council review, Plaintiff submitted additional evidence, a

Physical Medical Source Statement completed by treating doctor (Dr. Eyma) on August 7, 2017,

over four months after the ALJ’s unfavorable decision. The Appeals Council found the additional

evidence did not show a reasonable probability that it would change the outcome of the decision

and denied review. Plaintiff asserts the Appeals Council should have granted review because the

additional evidence she submitted was new and material, related to the period at issue, and a

reasonable probability existed that the additional evidence would change the outcome of the

hearing decision. Upon consideration, I find the Appeals Council did not err in denying Plaintiff’s

request for review.

Title 20 C.F.R. § 404.970 sets forth the circumstances when the Appeals Council will

review the ALJ’s decision. When Plaintiff requested Appeals Council review on May 10, 2017, a

revised version of § 404.970, effective on January 17, 2017, was in force. The 2017 version of §

404.970 raised the bar for obtaining Appeals Council review of an ALJ’s unfavorable decision.

The revised regulation adds the requirement of a “reasonable probability” that the additional

evidence would change the decision. The prior version did not include this requirement, although

the Eleventh Circuit case law imposed a “reasonable possibility” requirement. Under the revised

regulation, § 404.970(a)(5), the Appeals Council reviews a case if the claimant proffers “additional

evidence that is new, material, and relates to the period on or before the date of the hearing

decision, and there is a reasonable probability that the additional evidence would change the

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outcome of the decision.” 20 C.F.R. § 970(a)(5) (2017). Evidence is material if “a reasonable

probability exists that the evidence will change the administrative outcome.” Hargress v. Comm’r

of Soc. Sec., 883 F.3d 1302, 1308 (11th Cir. 2018) (internal citations omitted). New evidence is

chronologically relevant if it “relates to the period on or before the date of the [ALJ’s] hearing

decision.” Id.

The new version also requires a showing of good cause for the failure to submit the

additional evidence earlier. See 20 C.F.R. § 404.970(b).4 The Appeals Council’s Notice of Action

advised Plaintiff that she must “show good cause for why [she] missed informing us about or

submitting the new evidence earlier,” but in denying Plaintiff’s request for review the Appeals

Council did not address whether Plaintiff had satisfied the good cause requirement. See doc. 14-

2, pp. 1-2. Rather, the Appeals Council denied review because it “found the new evidence did not

show a reasonable probability that it would change the outcome of the decision.” Although I

question whether Plaintiff had good cause for failing to submit Dr. Eyma’s opinions earlier,

following the Eleventh Circuit’s lead in Bailey v. Comm’r of Soc. Sec., I will limit my consideration

to the new § 404.970(a)(5) criteria and will not address § 404.970(b)’s good cause requirement.

4 Specifically, § 404.970(b) provides:

The 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.

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See Bailey, 2019 WL 3383638, n.6 (11th Cir. July 26, 2019) (“leaving for another day the

implications of these amendments” and instead applying previous version of regulation where

Appeals Council did not require a good cause showing and the parties did not argue that the good

cause requirement applied or affected the outcome).5

Turning to the additional evidence Plaintiff submitted to the Appeals Council, the four-

page Physical Medical Source Statement by primary care physician, Dr. Rachel Eyma completed

on August 7, 2017, more than four months after the ALJ’s decision, is a fill-in-the-blank form. On

the form, Dr. Eyma lists Plaintiff’s diagnoses as “herniated disc L spine, chronic knee pain;” and

her prognosis as “fair;” her symptoms as “knee pain, locking, giving way, instability, chronic back

pain.” Dr. Eyma indicates Plaintiff has daily back/knee pain that is worse with prolonged standing/

sitting/ and walking; pain that is a 3-5 out of 10 with medication, and 8-10 out of 10 without

medication; paralumbar spasms and right knee swelling (R. 7). Dr. Eyma opines that Plaintiff is

limited to 1/2 block of walking without rest or severe pain, and limits her to 15 minutes of sitting,

and 15 minutes of standing at one time (R. 7-8). She additionally opines that Plaintiff can sit for

less than two hours and stand/ walk for less than two hours in an 8-hour workday, and would need

a job where she can shift positions at will from sitting to standing or walking (R. 8). When asked

“What is the earliest date that the described symptoms and limitations in this questionnaire apply,”

Dr. Eyma indicates “several years (at least since 2011)” (R. 10). Although the top of the form

directs the physician to “Attach relevant treatment notes, radiologist reports, laboratory and test

results as appropriate,” Dr. Eyma did not attach anything (R. 7).

5 In the Joint Memorandum of Law filed with this Court, neither Plaintiff nor the Commissioner

cite to the newer version of § 404.970, nor recognize that its requirements are more cumbersome

than the previous version. And both parties cite cases similar to this case but applying the

previous version of the regulation.

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In denying Plaintiff’s request for review, the Appeals Council “found no reason under our

rules to review the Administrative Law Judge’s decision” and explained:

You submitted the Medical Source Statement from Rachel Eyma, M.D. dated

August 7, 2017 but relating back to “at least 2011” (4 pages). We find this evidence

does not show a reasonable probability that it would change the outcome of the

decision. We did not consider and exhibit this evidence.

(R. 1-2). Where, as here, the Appeals Council did not consider and exhibit the additional evidence

and denied review, its decision is subject to judicial review. Washington v. Comm’r of Soc. Sec.,

806 F.3d 1317, 1321 (11th Cir. 2015). Federal courts must review de novo the Appeals Council’s

decision as to whether the additional evidence meets the new, material, and chronologically

relevant standard. Id. If the Appeals Council erroneously refused to consider newly submitted

evidence, it committed legal error and remand is appropriate. Id.

Plaintiff asserts that Dr. Eyma’s opinions are material as she is a treating source and calls

her report “highly probative” (doc. 18, p.29). However, the symptoms and diagnoses (herniated

disc and chronic knee pain) on Dr. Eyma’s Physical Medical Source Statement are the same ones

the ALJ already considered in the record. And the clinical findings (paralumbar spasms and knee

swelling) and the pain severity on Dr. Eyma’s form match the clinical findings and pain ratings in

the record and discussed by the ALJ. In fact, the ALJ considered and discussed the treatment

records from Physicians Associates and Dr. Eyma (presumably the same records upon which Dr.

Eyma based her post-decision opinions). She also considered and assigned little weight to a

previous opinion from Dr. Eyma that Plaintiff is unable to work. The ALJ found Dr. Eyma’s

previous opinion lacked detail and was not stated in functional terms, but more importantly, she

explained that “the records from Physician Associates often note few positive objective findings

that would support a more restrictive RFC than that assessed herein.” She explained, “those

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treatment notes frequently state the claimant is ‘doing well,’ and her pain is controlled with

medication” (R. 33). Simply put, Dr. Eyma’s routine office notes and those of other treating

sources document the symptoms, diagnoses, and clinical findings listed on the new form but do

not support Dr. Eyma’s severe functional limitations. As already noted, the form directed Dr.

Eyma to attach supporting evidence for her opinions, but she did not. Even Plaintiff recognized,

“[t]he record reflects that Plaintiff has been treating with Dr. Eyma since at least 2014 … and [ ]

began treating at Dr. Eyma’s practice, Physicians Associates, prior to June of 2012” (doc. 18,

p.28). Thus, it is unclear why Dr. Eyma opines that Plaintiff’s limitations began “at least since

2011” (R. 7).6

Citing Washington, supra, Plaintiff maintains that faced with new opinion evidence the

Appeals Council erred by concluding it was not material. Washington, 806 F.3d at 1321 (doc. 18,

p.28). But the evidence the Eleventh Circuit found new and material in Washington differs from

the additional evidence Plaintiff presented in this case. In Washington, the previous version of §

6 Faced with similar situations where claimants presented new opinion evidence to the Appeals

Council, other courts have recently noted that “there is no requirement in the regulations for a

direct correspondence between an [ALJ’s] RFC and a specific medical opinion on the functional

capacity in question.” Collins v. Berryhill, 5:17-cv-249-MJF; 2019 WL 1434584, *16 (N.D. Fla.

March 29, 2019) (affirming Appeals Council’s denial of review after it received additional Mental

Impairment Questionnaire, concluding it did not show a reasonable probability of changing the

outcome of the decision). See also Hargress, supra (finding new physical capacities form not

material evidence where there was no reasonable possibility that the new evidence would change

the administrative result because it was inconsistent with medical records); Azad v. Comm’r of

Soc. Sec., 6:18-cv-195-Orl-28DCI, 2018 WL 7199491 (M.D. Fla. Dec. 20, 2018) (finding Appeals

Council did not err in denying review where new medical source statement did not show a

reasonable probability of changing the outcome of the ALJ’s decision). In Hargress, the court

noted that the physical capacities form completed by the treating doctor in 2015 indicated that the

claimant’s limitations dated back to 2013, but nothing in the form or any other documents indicated

the treating doctor, who had only treated claimant since 2015, had looked at the claimant’s past

medical records. Hargress, at 1310.

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404.970 was in force and the Eleventh Circuit concluded the Appeals Council erred in denying

review because the additional opinions from Dr. Wilson constituted new, noncumulative evidence

not previously in the record. The Washington court explained that Dr. Wilson’s opinions were not

cumulative because “there is no other evidence in the record addressing the combined effect of

Mr. Washington’s cognitive limitations and hallucinations, which Dr. Wilson explained caused an

extreme degree of limitation in his social interactions, sustaining concentration, and persistence.”

Id. at n.6. Thus, Dr. Wilson’s opinions established a reasonable possibility that Washington had

an impairment that met or equaled listing 12.04. Washington, at 1321. Interestingly, in

Washington, the claimant had provided additional evidence from Dr. Tulao, another treating

physician too, but both the district court and the Eleventh Circuit affirmed the Appeals Council’s

finding that Dr. Tulao’s opinions were not material. The district court had noted that Dr. Tulao’s

opinions did not refer to any new medical findings or diagnoses. And the Eleventh Circuit found

that the portion of Dr. Tulao’s questionnaire listing symptoms and medications was cumulative as

it was evidence already in the record, and the remaining information in the questionnaire was

immaterial as it made no specific findings or diagnoses.

While I find Plaintiff’s additional evidence is new, as it did not exist at the time of the

ALJ’s decision, I find the Appeals Council did not err in concluding that the additional evidence

from Dr. Eyma does not show a reasonable probability of changing the outcome of the ALJ’s

decision and did not err in declining to consider it. See generally Sorter v. Comm’r of Soc. Sec.,

773 Fed. App’x. 1070, 1072 (11th Cir. May 16, 2019) (declining to follow the explicitly limited

holding in Washington and finding Appeals Council did not err in refusing to consider additional

evidence); Boylan v. Comm’r of Soc. Sec., 6:18-cv-889-Orl-DCI, 2019 WL 3413524 (M.D. Fla.

July 29, 2019) (finding Appeals Council did not err in concluding that new opinion evidence from

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treating physicians had no reasonable possibility of changing administrative result); Collins, supra,

at *16 (finding newly submitted questionnaire completed nine months after ALJ’s decision did not

indicate whether doctor completing questionnaire based his opinions solely on assessments prior

to ALJ’s decision or on assessments of conditions after ALJ’s decision and noting that doctor did

not provide additional supporting treatment notes, test results or otherwise support conclusions

even though form provided opportunity for him to do so); Parker v. Berryhill, 4:18-cv-00210-JEO,

2019 WL 2928841 (N.D. Ala. July 8, 2019) (finding Appeals Council did not err in concluding

new physical capacity evaluation form from treating physician was not material evidence with

reasonable probability of changing administrative result because opinions marked on the form

were not supported by physician’s treatment note dated nineteen months earlier than evaluation).

See contra Keene v. Comm’r of Soc. Sec., 2:17-cv-586-FtM-38CM, 2019 WL 317441 (M.D. Fla.

Jan. 7, 2019) (finding Appeals Council erred in denying review as there was reasonable probability

that new evidence would change ALJ’s decision where new evidence was psychiatrist’s treatment

notes and status report that included an additional diagnosis of schizophrenia that ALJ had not had

opportunity to consider and the record before the ALJ had not included any psychiatrist at all).

D. Conclusion

For the reasons stated above, it is ORDERED:

(1) The ALJ’s decision is AFFIRMED; and

(2) The Clerk of Court is directed to enter judgment for Defendant and close the

case.

DONE and ORDERED in Tampa, Florida on September 4, 2019.

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Marr ae. Lax

MARK A. PIZZO

UNITED STATES MAGISTRATE JUDGE

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