Amely, Sr. v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EDWARD AMELY,

Plaintiff,

v. Case No. 8:19-cv-1650-T-AEP

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability,

disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). Also, before

the Court is Plaintiff’s Motion to Remand Under Sentence Six of 45 U.S.C. Section 405(g) filed

on June 12, 2020 (Doc. 22), and the Commissioner’s Response in Opposition thereto (Doc. 23).

As the Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and

employed proper legal standards, Plaintiff’s Motion to Remand is unwarranted and the

Commissioner’s decision is affirmed.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 11). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 8). Plaintiff

then requested an administrative hearing (Tr. 161). Per Plaintiff’s request, the ALJ held a

hearing at which Plaintiff appeared and testified (Tr. 11). Following the hearing, the ALJ issued

an unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s claims

for benefits (Tr. 8-24). Subsequently, Plaintiff requested review from the Appeals Council,

which the Appeals Council denied (Tr. 1-7). Plaintiff then timely filed a complaint with this

Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1961, claimed disability beginning June 15, 2016 (Tr. 225).

Plaintiff obtained a high school education (Tr. 266). Plaintiff’s past relevant work experience

included work as a mortgage servicing specialist (Tr. 266). Plaintiff alleged disability due to

neurocardiogenic syncope and a heart condition (Tr. 242).

In rendering the administrative decision, the ALJ concluded that Plaintiff met the

insured status requirements through December 31, 2020, and had not engaged in substantial

gainful activity since June 15, 2016, the alleged onset date (Tr. 13). After conducting a hearing

and reviewing the evidence of record, the ALJ determined Plaintiff had the following severe

impairments: seizure disorder; sick sinus syndromes status post pacemaker implant; migraine

headaches; and degenerative joint disease of the knee (Tr. 13). Notwithstanding the noted

impairments, the ALJ determined Plaintiff did not have an impairment or combination of

impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Tr. 15). The ALJ then concluded that Plaintiff retained a residual

functional capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b) except

the claimant can lift 20 pounds occasionally and 10 pounds frequently. Further, the ALJ

concluded that:

The claimant can stand and walk for 6 hours and sit for 6 hours in

an 8-hour workday. The claimant can never climb ladders, ropes, or

scaffolds but can occasionally climb ramps and stairs and

occasionally balance, stoop, kneel, crouch and crawl. The claimant

must avoid exposure to hazards including moving machinery and

unprotected heights. The claimant can perform no commercial

driving. The claimant should avoid requirements of physical activity

that elevate the heart rate such as running, more than occasional

climbing, working in temperature extremes, working in confined

(Tr. 15). In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints

and determined that, although the evidence established the presence of underlying impairments

that reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements as to

the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with

the medical evidence and other evidence (Tr. 17).

Considering Plaintiff’s noted impairments and the assessment of a vocational expert

(“VE”), however, the ALJ determined Plaintiff could perform his past relevant work (Tr. 18).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the testimony of

the VE, the ALJ found Plaintiff not disabled (Tr. 19).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she 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 twelve months. 42 U.S.C. §§

423(d)(1)(A), 1382c(a)(3)(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. 42 U.S.C. §§ 423(d)(3),

1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 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), 416.920(a). Under this process, the

substantial gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P, Appendix 1;

and whether the claimant can perform his or her past relevant work. If the claimant cannot

perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ

to decide if the claimant can do other work in the national economy in view of his or her age,

education, and work experience. 20 C.F.R. §§ 404.1520(a), 416.920(a). A claimant is entitled

to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42

(1987); 20 C.F.R. §§ 404.1520(g), 416.920(g).

A determination by the Commissioner that a claimant is not disabled must be upheld if

it is supported by substantial evidence and comports with applicable legal standards. See 42

U.S.C. §§ 405(g), 1383(c)(3). 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 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation

marks omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court reviews

the Commissioner’s decision with deference to the factual findings, no such deference is given

to the legal conclusions. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th

Cir. 1994) (citations omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence or

substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates

against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient

reasoning for determining that he or she has conducted the proper legal analysis, mandates

reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining whether

the findings of the Commissioner are supported by substantial evidence and whether the correct

legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002).

III.

Plaintiff argues that the ALJ erred by failing to (1) fully and fairly develop the record,

and (2) the Appeals Council failed to remand the case due to new and material evidence.

Additionally, Plaintiff also moves to remand under Sentence Six of 45 U.S.C. § 405(g) in light

of alleged new and material evidence subsequently filed by Plaintiff (Doc. 22). For the

following reasons, the ALJ applied the correct legal standards and the ALJ’s decision is

supported by substantial evidence. Further, Plaintiff’s Motion to Remand (Doc. 22) is due to be

denied.

A. Failure to Develop the Record

Plaintiff argues that the ALJ erred by failing to properly develop the record by failing

to order a consultative mental examination of Plaintiff. Even though Social Security

proceedings are inquisitorial rather than adversarial in nature, claimants must establish their

eligibility for benefits. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir.

2007); 20 C.F.R. §§ 404.1512(a), 416.912(a). During the administrative process, therefore, a

claimant must inform the Social Security Administration about or submit all evidence known

to the claimant relating to whether the claimant is blind or disabled. 20 C.F.R. §§ 404.1512(a),

416.912(a). Though the claimant bears the burden of providing medical evidence showing she

is disabled, the ALJ is charged with developing a full and fair record. See Ellison v. Barnhart,

355 F.3d 1272, 1276 (11th Cir. 2003). The ALJ has this basic obligation to develop a full and

fair record without regard for whether the claimant is represented by counsel. Brown v. Shalala,

44 F.3d 931, 934 (11th Cir. 1995) (citation omitted). When the plaintiff demonstrates that the

record reveals evidentiary gaps which result in unfairness or “clear prejudice,” remand is

warranted. Id. at 935; Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015)

(“Remand for further factual development of the record before the ALJ is appropriate where

the record reveals evidentiary gaps which result in unfairness or clear prejudice.”) (quotation

and citation omitted); Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997) (“However, there

must be a showing of prejudice before it is found that the claimant’s right to due process has

been violated to such a degree that the case must be remanded to the [Commissioner] for further

development of the record”) (citation omitted). The administrative law judge has a duty to

develop the record where appropriate but is not required to order a consultative examination as

long as the record contains sufficient evidence for the administrative law judge to make an

informed decision. Doughty v. Apfel, 245 F.3d 1274, 1281 (11th. Cir. 2001)(citation omitted).

Here, the ALJ did not err by failing to order a consultative mental examination. After

review of the decision in light of the medical record before the ALJ, there is no error in the

ALJ’s failure to order another consultative evaluation nor in his conclusion concerning

Plaintiff's mental health. Substantial evidence supports the ALJ’s mental RFC finding (Tr. 15).

Significantly, Plaintiff denied having any mental impairment at the time of his application (Tr.

242, 256). His treatment records contain minimal reference to anxiety, and in May 2017,

Plaintiff even declined the low dose of Lexapro his doctor prescribed (Tr. 439). In addition,

Plaintiff’s treatment records throughout 2015 to 2018 show he was cooperative with an

appropriate mood and effect (Tr. 350, 359-60, 389, 397, 405, 439-41, 459, 461, 463, 469, 483).

Plaintiff’s admissions and treatment history support the ALJ’s finding that he had no work-

related mental limitations. The ALJ found that the record does not support Plaintiff’s

contentions regarding his mental health. The record shows that while Plaintiff had suffered

recurrent seizures, the Plaintiff did not adhere to treatment protocols and there is a history of

non-compliance. Additionally, the ALJ also reviewed Plaintiff’s medical records with regard

to his mental impairments and found that while Plaintiff was diagnosed with generalized

anxiety disorder and complained of depression, the record only supported the contention that

Plaintiff did not seek treatment for these issues and instead preferred to manage his symptoms

on his own (Tr. 17). As such, the ALJ did not err in failing to order a consultative mental

examination.

B. Appeals Council Failure to Remand

Next, Plaintiff also argues that the Appeals Council erred by failing to review the case

and remand due to new and material evidence. “With a few exceptions, the claimant is allowed

to present new evidence at each stage of this administrative process,” including before the

Appeals Council. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th. Cir. 2007).

The Appeals Council has the discretion not to review the ALJ's denial of benefits. See 20 C.F.R

§ 416.4170(b). “When the Appeals Council 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 Serv., 21 F.3d 1064, 1066 (11th. Cir. 1994). However, the Appeals Council must

consider “new and material evidence” that “relates to the period on or before the date of the

administrative law judge hearing decision” and must review the case if “the administrative law

judge's action, findings, or conclusion is contrary to the weight of the evidence currently of

record.” Ingram, 496 F.3d at 1261. The new evidence is material, and thus warrants a remand,

if “there is a reasonable possibility that the new evidence would change the administrative

outcome.” Hyde v. Bowen, 823 F.2d 456, 459 (11th. Cir. 1987).

Here, the Appeals Council did not err by failing to remand based upon new and material

evidence. First, although the evidence presented to the Appeals Council was new, the two

treatment records dated in February 2019 took place nearly two months after the ALJ’s decision

(T. 40-44). On February 13, 2019, Plaintiff visited Family Health Centers and discussed having

“a bit of depression” (T. 40), however the mental status examination findings were ultimately

normal (T. 41). Further, Plaintiff’s doctor did not diagnose depression, anxiety, or any other

mental health condition, and prescribed no medication, instead noted that Plaintiff did not wish

to seek medication for his conditions (T. 41-42). Also, on February 27, 2019, Plaintiff was

treated by a mental health counselor for depression during which Plaintiff explained his state

was a result of his financial difficulties, including the denial of his Social Security disability

benefits (T. 44). Plaintiff explained that his physical and memory challenges would not allow

him to work, however, Plaintiff again declined psychotropic medication and declined

psychoeducation and coping skills, and stated that “the way forward depends on financial

assistance” (T. 44). While the counselor diagnosed moderate depression, single episode,

examination findings were largely normal, and Plaintiff’s diagnosis stemmed largely from his

frustration with the “system not helping him” (T. 44).

As such, the Appeals Council properly found that this evidence was not material and

there was not a reasonable possibility that it would change the administrative outcome. The

evidence shows that Plaintiff had only a “bit of depression” on February 13, 2019, not enough

to result in medication or a diagnosis (T. 40). Although the examination on February 27, 2019

resulted in a diagnosis of moderate depression, Plaintiff’s primary reasoning for his depression

stemmed from financial stress in part due to the ALJ’s unfavorable decision (T. 44). As this

evidence does not change the administrative outcome, the Appeals Council properly denied

review.

C. Motion to Remand under Sentence Six of 45 U.S.C. § 405(g)

On June 12, 2020, Plaintiff filed a subsequent Motion to Remand under Sentence Six of

45 U.S.C. § 405(g) and attached additional evidence of his award of disability benefits under

Title XVI, as well as an examination by Dr. Thomas G. Trimmer. (Docs. 22, 22-1, 22-2). By

the Motion (Doc. 22), Plaintiff contends that remand is warranted based upon the award of

benefits and new and material evidence dating from his examination on May 23, 2019. To

satisfy the requirements for remand under sentence six of 42 U.S.C. § 405(g), a claimant must

establish that (1) the evidence is new and noncumulative; (2) the evidence is material such that

a reasonable possibility exists that it would change the administrative result; and (3) there was

good cause for the failure to submit the evidence at the administrative level. See Hunter v. Soc.

Sec. Admin., 808 F.3d 818, 821 (11th Cir. 2015); Caulder v. Bowen, 791 F.2d 872, 877 (11th

Cir. 1986).

As an initial matter, the Eleventh Circuit “. . . . has determined that the mere fact that a

claimant was subsequently awarded benefits is not itself, ‘as opposed to the evidence supporting

the subsequent decision,’ new and material evidence warranting a remand of a prior denial of

benefits.” Arnold v. Soc. Sec. Admin., Comm’r, 724 Fed. Appx. 772 (11th Cir. 2018)(citing

Hunter v. Soc. Sec. Admin. Comm’r, 808 F. 3d 818, 821-22 (11th. Cir. 2015)(quoting in part

and adopting the position in Allen v. Comm’r of Soc. Sec., 561 F. 3d 646, 653 (6th Cir. 2009)).

“Nor does the existence of a later favorable decision from the Social Security Administration

undermine the validity of a previous denial of benefits.” Id. Further, the examination of Dr.

Trimmer is not material as to change the administrative result. The evidence is being offered

nearly 5 months after the ALJ’s decision, and the evaluation does not demonstrate that

Plaintiff’s condition relates to the relevant period during when the ALJ issued the initial

decision nor the existence of such an impairment during that time period. See Caulder 791 F.2d

872, at 877 (finding that evidence is relevant and probative when it pertains to a condition listed

in the original applications at the administrative level as a source of his disability and contains

a medical opinion on the presence of the impairment during the time period for which benefits

are sought). It is also unclear what Plaintiff was found to be disabled of. The notice of award

(Doc. 22-1) found Plaintiff disabled as of January 31,2019, but does not provide an explanation

nor grounds for awarding disability benefits. There is also no reference to Dr. Trimmer’s

findings or that his examination formed the basis of that decision or even identify if the decision

was based on physical or mental impairments. Additionally, the evidence is not temporally

relevant to the time period in which Plaintiff alleges disability as itis being offered nearly five

months after the ALJ issued his decision. As such, remand is unwarranted.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is AFFIRMED.

2. The Clerk is directed to enter final judgment in favor of the Commissioner and close

the case.

3. Plaintiff’s Motion to Remand (Doc. 22) is DENIED.

DONE AND ORDERED in Tampa, Florida, on this 18th day of September, 2020.

A

LAS Ee

ANTHONY E. PORCELL!

United Sfates Magistrate Judge

cc: Counsel of Record