Foster v. Commissioner of Social Security Administration

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

VERONICA FOSTER,

Plaintiff,

V. CASE No. 8:19-cv-680-T-TGW

ANDREW SAUL,

Commissioner of Social Security, !

ORDER

- The plaintiff in this case seeks judicial review of the denial of

her claims for Social Security disability benefits.? Because the decision of

the Commissioner of Social Security is supported by substantial evidence

and contains no reversible error, the decision will be affirmed.

I.

The plaintiff, who was forty-three years old at the time of the

administrative hearing (Tr. 39) and who has a college education (Tr. 196),

'Andrew M. Saul became the Commissioner of Social Security on June 17, 2019, and

should be substituted as the defendant. See Fed. R. Civ. P. 25(d). .

*The parties have consented in this case to the exercise of jurisdiction by a United

States Magistrate Judge (Doc. 17).

has worked as a customer order clerk and credit clerk (Tr. 60). She filed a

claim for Social Security disability benefits, alleging that she became

disabled due to stage 2 breast cancer (Tr. 81). The claims were denied

initially and upon reconsideration.

The plaintiff, at her request, received a de novo hearing before

an administrative law judge. The law judge found that the plaintiff had

severe impairments of “breast cancer, obesity, headache, neuropathy,

depression and anxiety” (Tr. 17). The law judge concluded that with those

impairments the plaintiff had the residual functional capacity to perform

light work with the following exceptions (Tr. 20):

[The claimant] can lift 20 pounds occasionally; 10

pounds frequently; can stand and/or walk for

approximately 6 hours per 8-hour work-day; can

sit for approximately 6 hours per 8-hour work-day

with normal breaks; limit right over-head reaching

to frequent; limit gross and fine manipulation

bilaterally to frequent; avoid concentrated

exposure to hazards; and work is unskilled work,

meaning with specific vocational preparation code

of one or two, simple, routine and repetitive tasks.

The law judge determined that with those limitations the

plaintiff could not perform past relevant work (Tr. 25). However, based

upon the testimony of a vocational expert, the law judge found that jobs

existed in significant numbers in the national economy that the plaintiff

could perform, such as photocopying machine operator, office helper and

marker (Tr. 25-26). The vocational expert testified further that a subset of

these jobs was available with a sit/stand option (see Tr. 63-64). Accordingly,

the law judge decided that the plaintiff was not disabled (Tr. 26).

The plaintiff sought review of the law judge’s decision and

submitted additional evidence with that request. That evidence was an

MRI report of the plaintiff's left knee, dated January 26, 2018 (Tr. 2; see Tr.

35). The Appeals Council determined that “this evidence does not show a

reasonable probability that it would change the outcome of the decision” (Tr.

2). Consequently, the law judge’s decision became the final decision of the

Commissioner of Social Security in the plaintiff’s case (Tr. 1).

II.

In order to be entitled to Social Security disability benefits, a

claimant must be unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which

... has lasted or can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. 423(d)(1)(A), 1382c(a)(3)(A). A “physical

or mental impairment,” under the terms of the Act, is one “that results from

anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. 423(d)(3), 1382c(a)(3)(D).

A determination by the Commissioner that a claimant is not

disabled must be upheld if it is supported by substantial evidence. 42

U.S.C. 405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Under the substantial

evidence test, “findings of fact made by administrative agencies ... may be

reversed ... only when the record compels a reversal; the mere fact that the

record may support a contrary conclusion is not enough to justify a reversal

of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11" Cir. 2004) (en banc).

It is, moreover, the function of the Commissioner, and not the

courts, to resolve conflicts in the evidence and to assess the credibility of the

witnesses. Grant v. Richardson, 445 F.2d 656 (5" Cir. 1971). Similarly,

it is the responsibility of the Commissioner to draw inferences from the

evidence, and those inferences are not to be overturned if they are supported

by substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990 (5"

Cir. 1963).

Therefore, in determining whether the Commissioner's decision

is supported by substantial evidence, the court is not to reweigh the evidence,

but is limited to determining whether the record as a whole contains

sufficient evidence to permit a reasonable mind to conclude that the claimant

is not disabled. However, the court, in its review, must satisfy itself that

the proper legal standards were applied and legal requirements were met.

Lamb v. Bowen, 847 F.2d 698, 701 (11" Cir. 1988).

Ill.

Following the law judge’s unfavorable decision, the plaintiff

requested review from the Appeals Council and submitted additional

evidence to it. The plaintiff's sole issue is based upon that additional

evidence. Specifically, she argues that “the Appeals Council failed to find

that new evidence submitted to it was material and would have altered the

Administrative Law Judge decision” (Doc. 25, pp. 2, 5).

~splaintifP’s counsel also throws in the assertion that the law judge’s decision did

not address the claimant’s complaints of bilateral knee pain (Doc. 25, p. 6). This

contention is undeveloped and, therefore, forfeited in accordance with the court’s

Scheduling Order and Memorandum Requirements (see Doc. 16, p. 2) (“The plaintiff

must identify with particularity the discrete grounds upon which the administrative

In support of this argument, the plaintiff cites to an outdated

standard from Ingram v. Commissioner of Social Security Administration,

496 F.3d 1253 (11" Cir. 2007) (id., pp. 5-6). Ingram holds that when the

Appeals Council considers new evidence and denies review, the district court

should determine whether the Appeals Council has correctly decided that the

law judge’s findings are not contrary to the weight of all the evidence. 496

F.3d at 1266-67. This holding, however, was based on the language of 20

C.F.R. 404,970(b), see id., which has since been amended. 20 C.F.R.

404.970(a)(5).

Under the applicable regulations, review will be granted by the

Appeals Council when it “receives 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 outcome of the decision.” Id. Additionally, the plaintiff must state

good cause for not previously submitting the evidence to the law judge. 20

C.F.R. 404.970(b).

decision is being challenged” and “[a]ny contention for which those requirements are not

met will be deemed forfeited.”). See also Sanchez v. Commissioner of Social Security,

507 Fed. Appx. 855 n.1 (11" Cir, 2013) (the plaintiff waived any challenge to the law

judge’s determination that was not adequately raised).

The plaintiff, therefore, under the regulations must show that

(1) the evidence relates to the period on, or before, the date of the law judge’s

decision, (2) the evidence is new, (3) the evidence is material, (4) there is a

reasonable probability that the additional evidence would change the

outcome of the decision and (5) there is good cause for not submitting the

evidence earlier.

Evidence is material if there is a "reasonable possibility” that it

would change the administrative result. Hargress v. Social Security

Administration, Commissioner, 883 F.3d 1302, 1310 (11" Cir. 2018); see

also Milano v. Bowen, 809 F.2d 763 (11" Cir. 1987) (“material” means

“relevant and probative so that there is a reasonable possibility that it would

change the administrative result”). The term “reasonable probability” has

been defined as a “probability sufficient to undermine confidence in the

*As I discussed in Joyce v. Saul, Case No. 8:18-cv-3086-T-35TGW (Doc. 24, pp.

10-11), there are Eleventh Circuit cases that appear to use interchangeably “reasonable

possibility” and “reasonable probability.” In light of the amendment to §404.970,

“material” must mean the reasonable “possibility” of a different result; otherwise, the

“reasonable probability” requirement in (a)(5) would be superfluous. Notably, the Social

Security Administration Hearing, Litigation, and Appeals Manual (HALLEX), defines

“material” as “relevant, i.e., involves or is directly related to issues adjudicated by the □

ALJ.” HALLEX I-3-3-6, §B.2. However, this definition is not controlling authority. See

McCabe v. Commissioner of Social Security, 661 Fed. Appx. 596, 599 (1 1" Cir. 2016)

(The Eleventh Circuit “has not decided whether HALLEX carries the force of law.”).

outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985). Since the

Appeals Council mentioned only the fourth element, consideration is

properly limited to whether the Appeals Council erred in finding there was

not a reasonable probability that the new evidence would change the

outcome of the decision.

The plaintiff's new evidence consists solely of an MRI report

of the plaintiff's left knee, performed on January 26, 2018 (Tr. 2, 35). She

quotes the pertinent portion of the MRI report:

[The radiologist’s] impression was significant

bone marrow contusion with non-displaced, non-

depressed subchondral fracture of the posterior

tibia, high-grade partial/near full thickness tear of

the anterior cruciate ligament, and small popliteal

cyst and small joint effusion.

(Doc. 25, p. 6). The Appeals Council considered this evidence and found

that the MRI report “does not show a reasonable probability that it would

change the outcome of the decision” (Tr. 2). Accordingly, the Appeals

Council denied review (Tr. 1).

The plaintiff argues, in a vague and conclusory manner that,

“(djue to the significant findings from this MRI, it is likely the

Administrative Law Judge would have found the claimant more limited with

respect to standing and walking, than found to be the case in the decision”

(Doc. 25, p. 6). The defendant responds that the “[p]laintiff had not proven

the significance [of] the MRI findings” (Doc. 27, p. 8). In this regard, he

argues:

[The MRI] report alone does not show Plaintiff

had a severe knee impairment for any consecutive

twelve-month period or that she was further

limited by knee pain that precluded her ability to

perform the reduced number of light jobs

identified by the VE. According to the VE, a

person who ... needed a sit-stand option could still

perform the identified jobs.

(id., p. 2). The Commissioner’s arguments are meritorious. Conspicuously

missing from the plaintiff's submission is a treatment note or medical

opinion indicating the functional limitations caused by the knee injuries and

the expected duration thereof, both of which are necessary for the plaintiff

to show a reasonable probability that this new impairment evidence would

change the outcome of the decision. See 20 C.F.R. 404.970(a)(5).

Thus, in order to qualify for disability benefits, the impairment

must “meet[] the duration requirement specified in the federal regulations.”

Shinn ex rel. Shinn v. Commissioner of Social Security, 391 F.3d 1276, 1279

(11 Cir. 2004); see 20 C.F.R. 404.1509. The “duration requirement,” as

pertinent here, means that the impairment “lasted or must be expected to last

for a continuous period of not less than 12 months.” 20 C.F.R. 404.1509.

Furthermore, that medical impairment must be at a level of severity

sufficient to preclude substantial gainful activity. Barnhart v. Walton, 535

U.S. 212, 219-20 (2002). Thus, both the impairment and the inability

work must be expected to last not less than 12 months. See id.; 20 C.F.R.

404.1505(a).

The plaintiff's MRI report, however, merely identifies the

radiologist’s impressions of the plaintif? s left knee impairments. Nothing

in that report indicates the expected duration of the impairments.

Additionally, the MRI report does not establish the severity of

the impairments. Thus, it is well-established that “a diagnosis or a mere

showing of ‘a deviation from purely medical standards of bodily perfection

or normality’ is insufficient [to show disability]; instead, the plaintiff must

show the effect of the impairment on her ability to work.” Wind v. .

Barnhart, 133 Fed. Appx. 684, 690 (11" Cir. 2005), quoting McCruter v.

Bowen, 791 F.2d 1544, 1547 (11" Cir. 1986). In other words, it is the

functional limitations that determine disability. Moore v. Barnhart, 405

F.3d 1208, 1213 n.6 (11" Cir. 2005). The MRI report does not identify any

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functional limitation caused by the knee impairments and, therefore, it

certainly does not show that they caused one or more functional limitations

that would render the plaintiff unable to perform substantial gainful activity

for at least 12 consecutive months. See id?

. Moreover, the plaintiff does not show that the impairments on

the MRI report were connected to a pre-existing knee problem. The

plaintiff, at best, hints at such an argument by referring to her hearing

testimony of knee pain (Doc. 25, p. 6).

However, as the Commissioner argues, “[t]here is no indication

in this report tying Plaintiffs complaints of knee pain as she testified in

September 2017 to these MRI findings in January 2018” (Doc. 27, pp. 8-9).

See Social Security Ruling 82-52, 1982 WL 31376 at *1 (‘Severe

impairments lasting less than 12 months cannot be combined with

successive, unrelated impairments to meet the duration requirement.”).

Furthermore, such a connection is unlikely because the injuries identified on

the MRI—such as the contusion (i.e., a bruise) and ligament tear—are

the Commissioner argues, if it subsequently became apparent that the knee

impairments shown on the MRI were disabling, the proper procedure is to file another

disability benefits application.

1]

typically associated with a singular traumatic event, such as a slip or fall, and

not the deterioration of a pre-existing condition. See www.mayoclinic.org/-

diseases-conditions-ACL.

Additionally, even if the knee impairments on the MRI report

were connected to a pre-existing knee condition, there is no showing that the

impairments caused functional limitations at a disabling level for 12

consecutive months. See Barnhart v. Walton, supra, 535 U.S. at 220 (The

medical impairment must be at a “level of severity sufficient to preclude

substantial gainful activity.”). To the contrary, the law judge discussed in

the decision that he rejected greater restrictions on the plaintiff's walking

capability because the “treatment notes consistently indicate that [the

plaintiff's] gait was normal and there were no signs of deficits in the

extremities” (Tr. 24). This finding—which the plaintiff has not

challenged—is amply supported by objective medical findings showing

normal gait, full range of motion, no swelling or edema, and normal strength

and sensation (see Tr. 575, 591, 724, 797, 808, 829, 833, 871).

Consequently, there is not a reasonable probability that the MRI report

would have changed the law judge’s decision of not disabled. See 20

C.F.R. 404.907(a)(5).

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Finally, even accepting the plaintiff's vague allegation that the

MRI report showed she was “more limited with respect to standing and

walking” (which it does not) there is not a reasonable probability that the

outcome would be different because a subset of the representative jobs

identified by the law judge were available with an option to sit/stand at will.

Thus, the vocational expert testified that there were jobs as a photocopy

machine operator, office helper and marker that permitted the “individual

[to] sit if they needed to sit and ... stand if they needed to stand. They could

sit all day if they needed to sit all day” (Tr. 64).6 Therefore, the

representative jobs upon which the law judge based his finding of not

disabled could also accommodate greater limitations on walking and

standing. This circumstance also shows there is not a reasonable

probability that the MRI report would have changed the outcome of this case.

In sum, the plaintiff has failed to show that the Appeals Council

erred by denying review of her claim. 20 C.F.R. 404.970(a)(5).

~éaithough the vocational expert did not specify the number of these jobs, it was

clearly a significant number because the vocational expert identified a further reduced

amount of these jobs that could be performed with legs elevated to the waist, and that

reduced amount constitutes a significant number of jobs available in the national

economy (see Tr. 64). See, e.g., Brooks v. Barnhart, 133 Fed. Appx. 669, 671 (11" Cir.

2005) (840 jobs constituted a significant number in the national economy). □

It is, therefore, upon consideration,

ORDERED:

That the decision of the Commissioner of Social Security is

AFFIRMED. The Clerk shall enter judgment in accordance with this

Order and CLOSE this case. □

DONE and ORDERED at Tampa, Florida, this fi of

July, 2020.

THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE

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