Hamilton v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARK HAMILTON,

Plaintiff,

v. Case No. 8:19-cv-2647-T-CPT

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

____________________________/

O R D E R

The Plaintiff seeks judicial review of the Commissioner’s denial of his claims

for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). For

the reasons discussed below, the Commissioner’s decision is affirmed.

I.

The Plaintiff was born in 1970, has a limited education, and has past relevant

work experience as a sandblaster/paint sprayer. (R. 111). In May 2016, the Plaintiff

applied for DIB and SSI alleging disability as of December 9, 2015, due to ruptured

discs in his back. (R. 203–13, 235). The Social Security Administration (SSA) denied

the Plaintiff’s applications both initially and on reconsideration. (R. 78–79, 96–97).

At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a

hearing on the matter on July 10, 2018. (R. 20–61). The Plaintiff was represented by

counsel at that hearing and testified on his own behalf. Id. A vocational expert (VE)

also testified. Id.

On October 31, 2018, the ALJ found that the Plaintiff: (1) met the insured status

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

gainful activity since his alleged onset date of December 9, 2015; (2) had the severe

impairments of morbid obesity and degenerative disc disease; (3) did not, however,

have an impairment or combination of impairments that met or medically equaled the

severity of any of the listed impairments; (4) had the residual functional capacity

(RFC) to perform a limited range of sedentary work;1 and (5) based on the VE’s

testimony, could not engage in his past relevant work but was capable of making a

successful adjustment to other jobs that exist in significant numbers in the national

economy. (R. 103–13). Based on these findings, the ALJ concluded that the Plaintiff

was not disabled. (R. 112–13).

1 In particular, the ALJ found that the Plaintiff could lift and carry ten pounds occasionally and less

than ten pounds frequently; could stand and walk for two hours in an eight-hour workday; and could

sit for six hours in an eight-hour workday, with an option to sit/stand every twenty to thirty minutes

while remaining at his workstation. (R. 107). The ALJ also determined that the Plaintiff could

push/pull with his upper extremities but could not pull with his lower extremities; could occasionally

climb, balance, kneel, stoop, crouch, and crawl; could not climb ladders, ropes, or scaffolds; and must

avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, hazardous machinery,

and unprotected heights. (R. 107–08).

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The Appeals Council denied the Plaintiff’s request for review. (R. 1–7).

Accordingly, the ALJ’s decision became the final decision of the Commissioner.

II.

The Social Security Act (the Act) defines disability as the “inability 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); see also

20 C.F.R. §§ 404.1505(a), 416.905(a).2 A physical or mental impairment under the

Act “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).

To determine whether a claimant is disabled, the Social Security Regulations

(Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r

of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (per curiam) (citing 20 C.F.R.

§ 404.1520(a)(4)); see also 20 C.F.R. § 416.920(a)(4).3 Under this process, an ALJ must

assess whether the claimant: (1) is performing substantial gainful activity; (2) has a

severe impairment; (3) has a severe impairment that meets or equals an impairment

specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has the RFC to

2 Unless otherwise indicated, citations to the Code of Federal Regulations are to the version in effect

at the time of the ALJ’s decision.

3 Unpublished opinions are not considered binding precedent but may be cited as persuasive authority.

11th Cir. R. 36-2.

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engage in his past relevant work; and (5) can perform other jobs in the national

economy given his RFC, age, education, and work experience. Id. (citing Phillips v.

Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4)). While the claimant has the burden of proof through step four, the

burden temporarily shifts to the Commissioner at step five. Goode v. Comm’r of Soc.

Sec., 966 F.3d 1277, 1279 (11th Cir. 2020) (quoting Hale v. Bowen, 831 F.2d 1007, 1011

(11th Cir. 1987)); Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727, 734 (11th Cir. 2017)

(per curiam) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). If the

Commissioner carries that burden, the claimant must then prove he cannot engage in

the work identified by the Commissioner. Goode, 966 F.3d at 1279. In the end, “‘the

overall burden of demonstrating the existence of a disability . . . rests with the

claimant.’” Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018)

(quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).

A claimant who does not prevail at the administrative level may seek judicial

review in federal court provided the Commissioner has issued a final decision on the

matter after a hearing. 42 U.S.C. § 405(g). Judicial review is limited to determining

whether the Commissioner applied the correct legal standards and whether the

decision is supported by substantial evidence. Id.; Hargress v. Soc. Sec. Admin., Comm’r,

883 F.3d 1302, 1305 n.2 (11th Cir. 2018) (citation omitted). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. ___, 139 S.

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Ct. 1148, 1154 (2019) (citations and quotations omitted). In evaluating whether

substantial evidence supports the Commissioner’s decision, the Court may not decide

the facts anew, make credibility determinations, or re-weigh the evidence. Ross v.

Comm’r of Soc. Sec., 794 F. App’x 858, 860 (11th Cir. 2019) (per curiam) (quoting Moore

v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)). “[W]hile the court reviews the

Commissioner’s decision with deference to [his] factual findings, no such deference is

given to [his] legal conclusions.” Keel-Desensi v. Berryhill, 2019 WL 1417326, at *2

(M.D. Fla. Mar. 29, 2019) (citing Keeton v. Dep’t of Health & Human Servs., 21 F.3d

1064, 1066 (11th Cir. 1994)).

III.

The Plaintiff raises two challenges on appeal: (1) the ALJ failed to fully and

fairly develop the record by not ordering a psychological consultative examination

(CE) regarding the Plaintiff’s alleged mental impairments; and (2) the Appeals Council

erred in not considering new evidence submitted by the Plaintiff—namely, a December

27, 2028, mental RFC assessment of the Plaintiff completed by a psychiatrist, Dr. B.S.

Bedi. (Doc. 23). Each of these arguments is addressed in turn below.

A.

Because Social Security proceedings are inquisitorial rather than adversarial, an

ALJ has a basic and firmly-established duty to develop a full and fair record of the

facts relevant to a claimant’s application for benefits. Washington, 906 F.3d at 1364;

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

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however, does not obligate an ALJ to order a CE wherever there is evidence that a

claimant may suffer from a particular impairment. Instead, an ALJ “may purchase a

[CE] to try to resolve an inconsistency in the evidence, or when the evidence as a whole

is insufficient to support a determination or decision on [a] claim.” 20 C.F.R.

§ 416.919a. Importantly, the ALJ need not exercise this discretion in favor of ordering

a CE “as long as the record contains sufficient evidence for [him] to make an informed

decision.” Ingram, 496 F.3d at 1269 (citing Doughty, 245 F.3d at 1281); see also Nation

v. Barnhart, 153 F. App’x 597, 598 (11th Cir. 2005) (per curiam) (“The ALJ is not

required to seek additional independent expert medical testimony before making a

disability determination if the record is sufficient and additional expert testimony is

not necessary for an informed decision.”) (citations omitted).

A claimant seeking remand where an ALJ has declined to order a CE must

show not only that the ALJ erred in doing so, but also that the claimant was harmed

by the ALJ’s decision. See Mosley v. Comm’r of Soc. Sec., 633 F. App’x 739, 742 (11th

Cir. 2015) (per curiam) (citing Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)).

Only where “the record reveals evidentiary gaps which result in unfairness or clear

prejudice” may a court find that remand is appropriate. Id. (quoting Brown, 44 F.3d

at 935); see also Goode, 966 F.3d at 1280 (observing that “‘[r]emand for further factual

development of the record . . . is appropriate where the record reveals evidentiary gaps

which result in unfairness or clear prejudice’”) (quoting Henry v. Comm'r of Soc. Sec.,

802 F.3d 1264, 1267 (11th Cir. 2015)). Ultimately, the claimant bears the burden of

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proving he is disabled and must therefore produce adequate evidence to support his

application. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).

In this case, the Plaintiff has not made the requisite showing to prevail on his

claim that the ALJ failed to develop the record by not ordering a mental CE. At the

July 10, 2018, ALJ hearing, Plaintiff’s counsel explained that the Plaintiff had recently

begun seeing Dr. Bedi but was having difficulties obtaining legible notes from him.

(R. 25). The ALJ responded:

I’d be willing to leave the record open for a couple of weeks, see if we can

get those records in, see what they look like . . . . And if they look like

they’re completely illegible, as I would expect, when we receive those in,

if you will submit a request for a CE . . . I will accept that . . . . And I will

send him out for it.

Id.

Approximately three weeks after the hearing, on August 2, 2018, counsel wrote

to the ALJ that he was unable to secure Dr. Bedi’s records and, as a result, requested

that the ALJ either subpoena those materials or order a CE. (R. 289). The ALJ

specifically addressed this request in his decision:

The claimant’s representative submitted a brief requesting that the

undersigned issue a subpoena for psychiatric records. This request is

denied for several reasons. First, the medical evidence of records shows

that the requested records have been submitted and made a part of the

record at [Exhibit] 15F. . . . The undersigned also notes that the

representative requested that the claimant be sent for a psychological

[CE]; however, the undersigned finds that this examination is not

necessary as the limited medical evidence concerning the claimant’s

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alleged mental impairments shows that his alleged conditions are non-

severe as discussed more fully below.

(R. 103) (internal citations omitted). The ALJ then went on to discuss the portions of

Dr. Bedi’s medical file before him, noting, inter alia, that “Dr. Bedi treated the claimant

on three occasions and [his] treatment notes show that the claimant was within normal

limits in all respects.” (R. 106).

Against this backdrop, the Plaintiff fails to show that the record required further

development in order for the ALJ to make an informed decision. In particular, he

does not identify any inconsistencies or gaps in the evidence sufficient to trigger the

ALJ’s duty to order a CE. Nor does he point to any unfairness or clear prejudice

stemming from any such purported evidentiary deficiencies. As a result, his argument

that remand is necessary is without merit. See Sarria v. Comm’r of Soc. Sec., 579 F. App’x

722, 724 (11th Cir. 2014) (per curiam) (affirming ALJ’s decision not to order additional

medical examination where medical records, reports from treating therapists,

assessments of agency physicians, and plaintiff’s self-assessments provided sufficient

basis for disability determination).

B.

The Plaintiff’s second claim of error—that the Appeals Council was obligated

to consider Dr. Bedi’s December 27, 2018, mental RFC assessment of the Plaintiff—

likewise provides no cause for remand. Aside from a few exceptions not relevant here,

a claimant may submit additional evidence at each stage of the administrative

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proceedings, including to the Appeals Council. Id. The Appeals Council is required

to subsequently evaluate such evidence if it is “new, material, and chronologically

relevant.” Ingram, 496 F.3d at 1261 (citing 20 C.F.R. § 404.970(b)). “New” evidence

refers to evidence that was not previously before the ALJ. Hyde v. Bowen, 823 F.2d

456, 459 (11th Cir. 1987). Evidence is deemed “material” if it “is ‘relevant and

probative so that there is a reasonable possibility that it would change the

administrative result.’” Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553 (11th Cir.

2016) (per curiam) (quoting Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987)). And,

evidence is considered “chronologically relevant” if it relates to the period on or before

the date of the ALJ’s decision. Washington, 806 F.3d at 1322–23; Horowitz v. Comm’r

of Soc. Sec., 688 F. App’x 855, 864 (11th Cir. 2017) (per curiam) (citing Washington v.

Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1322 (11th Cir. 2015)).

Where a claimant properly presents new evidence to the Appeals Council and

the Appeals Council thereafter declines to entertain the claimant’s appeal, “a

reviewing court must consider whether that new evidence renders the denial of benefits

erroneous.” Ingram, 496 F.3d at 1262. Remand is warranted only when a claimant

submits new evidence to the Appeals Council that the Council did not adequately

evaluate in rejecting the claimant’s request for review. Timmons v. Comm’r of Soc. Sec.,

522 F. App’x 897, 902 (11th Cir. 2013) (per curiam) (citing Ingram, 496 F.3d at 1268);

see also Washington, 806 F.3d at 1321 (“[W]hen the Appeals Council erroneously

refuses to consider evidence, it commits legal error and remand is appropriate.”).

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Accordingly, “[t]o obtain . . . remand, the claimant must show that, in light of the new

evidence submitted to the Appeals Council, the ALJ’s decision to deny benefits is not

supported by substantial evidence in the record as a whole.” Timmons, 522 F. App’x

at 902 (citing Ingram, 496 F.3d at 1266–67).

The Plaintiff has not met his burden on this issue either. In refusing to review

the ALJ’s decision, the Appeals Council explained that Dr. Bedi’s December 27, 2018,

mental RFC evaluation was performed approximately two months after the ALJ

issued his decision on October 31, 2018, did not pertain to the period in question, and

thus did not affect the ALJ’s disability determination. (R. 2). Although the Plaintiff

urges that this finding was unreasonable given that Dr. Bedi’s opinion was rendered

relatively soon after the ALJ’s decision, the Plaintiff presents no basis for remand.

Notably, nothing in Dr. Bedi’s assessment indicates that the Plaintiff’s alleged mental

limitations related back to the time on or before the ALJ’s disability finding. As a

result, the Court concludes that the new evidence submitted to the Appeals Council

does not materially undermine the ALJ’s decision, and that the Appeals Council

therefore did not err in denying review of the Plaintiff’s claim after receiving this

additional evidence.

IV.

For the foregoing reasons, it is hereby ORDERED:

1. The Commissioner’s decision is affirmed.

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2. The Clerk is directed to enter Judgment in the Defendant’s favor and to

close the case.

DONE and ORDERED in Tampa, Florida, this 15th day of January 2021.

Ohisedaw Fe Act.

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to:

Counsel of record

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