# Fleming v. Commissioner of Social Security

> District Court, M.D. Florida · March 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10107170

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

PATRICE C. FLEMING,

Plaintiff,

v. Case No. 3:19-cv-1466-JRK

ANDREW M. SAUL,
Commissioner of Social Security,

Defendant.

OPINION AND ORDER1
I. Status
Patrice C. Fleming (“Plaintiff”) is appealing the Commissioner of the
Social Security Administration’s (“SSA(’s)”) final decision denying her claim for
disability insurance benefits (“DIB”). Plaintiff’s alleged inability to work is the
result of a “knee condition,” a torn rotator cuff, carpal tunnel in both hands, and
high blood pressure. See Transcript of Administrative Proceedings (Doc. No. 13;
“Tr.” or “administrative transcript”), filed April 21, 2020, at 73-74, 84-85, 208
(capitalization and emphasis omitted). Plaintiff filed an application for DIB on

1 The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge
(Doc. No. 12), filed April 21, 2020; Reference Order (Doc. No. 15), entered April 23, 2020.
December 6, 2016,2 alleging an onset disability date of September 12, 2016. Tr.
at 168. The application was denied initially, Tr. at 72, 73-82, 83, upon

reconsideration, Tr. at 84-95, 96, 97, and upon “informal remand,” Tr. at 98; see
Tr. at 709-23, 724.
On January 8, 2019, an Administrative Law Judge (“ALJ”) held a
hearing, during which he heard testimony from Plaintiff, who was represented

by counsel, and a vocational expert (“VE”). See Tr. at 35-71. Plaintiff was fifty-
four years old at the time of the hearing. Tr. at 41. On March 6, 2019, the ALJ
issued a Decision finding Plaintiff not disabled through the date of the Decision.
See Tr. at 15-25.

Thereafter, Plaintiff sought review of the Decision by the Appeals
Council. See Tr. at 165. The Appeals Council received additional evidence in the
form of a brief authored by Plaintiff’s counsel and medical records from
Plaintiff’s treating orthopedic physician (spanning January 28, 2019 to March

11, 2019). Tr. at 2, 4, 5; see Tr. at 296-97 (brief); Tr. at 31-34 (medical records).3
On October 30, 2019, the Appeals Council denied Plaintiff’s request for review,
Tr. at 1-3, thereby making the ALJ’s Decision the final decision of the

2 Although actually completed on December 6, 2016, see Tr. at 168, the protective
filing date of the application is listed elsewhere in the administrative transcript as November
30, 2016, see, e.g., Tr. at 73.

3 The Appeals Council did not designate the medical records as an exhibit. See
Tr. at 2.
Commissioner. On December 20, 2019, Plaintiff commenced this action under
42 U.S.C. § 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial

review of the Commissioner’s final decision.
On appeal, Plaintiff makes two arguments: 1) the ALJ “erred in relying
primarily on the opinions of the state agency [medical consultants] in
formulating [Plaintiff’s] residual functional capacity [(‘RFC’)] even though their

opinions were issued prior to [Plaintiff’s] left shoulder decline that was
accelerated by the need for crutches and a walker after her right total knee
replacement in January 2018”; and 2) “[t]he Appeals Council erred in failing to
remand this matter to the [ALJ] for consideration of new and material

evidence”: specifically, the medical records from Plaintiff’s orthopedic physician
that in part show Plaintiff “underwent left shoulder reconstructive surgery five
weeks before the [ALJ] denied her case.” Plaintiff’s Brief (Doc. No. 17; “Pl.’s
Br.”), filed June 22, 2020, at 8, 13 (emphasis omitted); see also Pl.’s Br. at 1. On

September 21, 2020, Defendant filed a Memorandum in Support of the
Commissioner’s Decision (Doc. No. 20; “Def.’s Mem.”) addressing Plaintiff’s
arguments. After a thorough review of the entire record and consideration of
the parties’ respective memoranda, the undersigned finds that the

Commissioner’s final decision is due to be affirmed.
II. The ALJ’s Decision
When determining whether an individual is disabled,4 an ALJ must

follow the five-step sequential inquiry set forth in the Code of Federal
Regulations (“Regulations”), determining as appropriate whether the claimant
(1) is currently employed or engaging in substantial gainful activity; (2) has a
severe impairment; (3) has an impairment or combination of impairments that

meets or medically equals one listed in the Regulations; (4) can perform past
relevant work; and (5) retains the ability to perform any work in the national
economy. 20 C.F.R. § 404.1520; see also Phillips v. Barnhart, 357 F.3d 1232,
1237 (11th Cir. 2004). The claimant bears the burden of persuasion through

step four, and at step five, the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 17-25.
At step one, the ALJ determined Plaintiff “has not engaged in substantial

gainful activity since September 12, 2016, the alleged onset date.” Tr. at 17
(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has
the following severe impairments: reconstructive surgeries of weightbearing
joints; disorders of the muscle, ligament, and fascia; diabetes mellitus; essential

4 “Disability” is defined in the Social Security Act as the “inability 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.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A).
hypertension; obesity; carpal tunnel syndrome, status-post surgery;
hyperlipidemia; and thyroid disorder.” Tr. at 17 (emphasis and citation
omitted). At step three, the ALJ ascertained that Plaintiff “does not have an

impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,
Appendix 1.” Tr. at 19 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following RFC:
[Plaintiff can] perform light work as defined in 20
[C.F.R. §] 404.1567(b) except [Plaintiff] can frequently reach
overhead to the left. She can handle and finger frequently.
[Plaintiff] can climb ramps and stairs occasionally but never climb
ladders, ropes, or scaffolds; she can stoop occasionally, but never
kneel, crouch, or crawl. [Plaintiff] can occasionally be exposed to
vibration.

Tr. at 19 (emphasis omitted).
At step four, the ALJ found that Plaintiff “is capable of performing past
relevant work as a Grocery Clerk . . . .” Tr. at 23 (emphasis omitted). The ALJ
then made alternative findings at step five. Tr. at 23-25. After considering
Plaintiff’s age (“52 years old . . . on the alleged disability date”), education (“at
least a high school education”), work experience, and RFC, the ALJ relied on
the VE’s testimony and found that “there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can perform,” such as
“Ticket Seller,” “Office Helper,” and “Parking Lot Cashier.” Tr. at 23-24. The
ALJ concluded Plaintiff “has not been under a disability . . . from September 12,
2016[ ] through the date of th[e D]ecision.” Tr. at 25 (emphasis and citation
omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability
pursuant to 42 U.S.C. § 405(g). Although no deference is given to the ALJ’s
conclusions of law, findings of fact “are conclusive if . . . supported by
‘substantial evidence.’” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)
(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial
evidence is something ‘more than a mere scintilla, but less than a
preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial
evidence standard is met when there is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Falge, 150 F.3d at 1322
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v.

Berryhill, 139 S.Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec.,
959 F.3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court
to reweigh the evidence; rather, the entire record is reviewed to determine
whether “the decision reached is reasonable and supported by substantial

evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation
omitted). The decision reached by the Commissioner must be affirmed if it is
supported by substantial evidence—even if the evidence preponderates against
the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion
As noted above, Plaintiff challenges the ALJ’s reliance on the opinions of
the state agency medical consultants and the Appeals Council’s failure to
remand the matter for consideration of new evidence. These arguments are

addressed in turn below.
A. Opinions of State Agency Medical Consultants
1. Parties’ Arguments
Plaintiff contends the ALJ erred in giving great weight to the opinions of

the state agency medical consultants: James G. Brown Ph.D., dated April 14,
2017; Bettye Stanley, D.O., dated April 15, 2017; Ryan Mendoza, Ph.D., dated
April 12, 2018; and Jay Shaw, M.D., dated April 18, 2018. See Pl.’s Br. at 11-
13;5 Tr. at 89-90 (Dr. Brown); Tr. at 90-95 (Dr. Stanley); Tr. at 709-23 (Dr.

Mendoza); Tr. at 724 (Dr. Shaw). According to Plaintiff, these opinions “were
based on [Plaintiff’s] left shoulder’s status prior to 2018” because none of the
state agency medical consultants had the opportunity to review “2018 progress
notes.” Pl.’s Br. at 9; see also id. at 11.

5 Although Plaintiff does not name Dr. Brown or Dr. Mendoza in her Brief, she
faults the ALJ’s assessment of the state agency medical consultants’ opinions, and as
summarized below, the ALJ assessed the opinions of all four state agency medical consultants.
Responding, Defendant asserts that “[n]othing in the evidence before the
ALJ that was not before the state agency [medical consultants] undermines the

limitations opined by the state agency [medical consultants] or undermines the
limitations included in the RFC.” Def.’s Mem. at 7 (citation omitted). According
to Defendant, “the subsequent notes indicate some complaints of pain, but
control of the pain for months at a time with injections and full or nearly full

range of motion.” Id. (citation omitted).
2. Applicable Law6
The Regulations establish a hierarchy among medical opinions7 that

provides a framework for determining the weight afforded each medical
opinion. See 20 C.F.R. § 404.1527. Essentially, “the opinions of a treating
physician are entitled to more weight than those of a consulting or evaluating
health professional,” and “[m]ore weight is given to the medical opinion of a

6 On January 18, 2017, the SSA revised the Rules regarding the evaluation of
medical evidence and symptoms for claims filed on or after March 27, 2017. See Revisions to
Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5,844-01, 5,844 (January
18, 2017); see also 82 Fed. Reg. 15,132 (Mar. 27, 2017) (amending and correcting the final
Rules published at 82 Fed. Reg. 5,844-01). Because Plaintiff filed her claim before that date,
the undersigned cites the Rules and Regulations that are applicable to the date the claim was
filed.

7 “Medical opinions are statements from physicians or other acceptable medical
sources that reflect judgments about the nature and severity of [a claimant’s] impairment(s),
including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do
despite impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(1); see also 20 C.F.R. § 404.1502 (defining “[a]cceptable medical sources”); 20
C.F.R. § 404.1513(a).
source who examined the claimant than one who has not.” Schink v. Comm’r of
Soc. Sec., 935 F.3d 1245, 1259, 1260 n.5 (11th Cir. 2019). Further, “[n]on-

examining physicians’ opinions are entitled to little weight when they
contradict opinions of examining physicians and do not alone constitute
substantial evidence.” Id. at 1260 (citing Sharfarz v. Bowen, 825 F.2d 278, 280
(11th Cir. 1987) (per curiam)). The following factors are relevant in determining

the weight to be given to a physician’s opinion: (1) the “[l]ength of the treatment
relationship and the frequency of examination”; (2) the “[n]ature and extent of
[any] treatment relationship”; (3) “[s]upportability”; (4) “[c]onsistency” with
other medical evidence in the record; and (5) “[s]pecialization.” 20 C.F.R.

§ 404.1527(c)(2)-(5); see also 20 C.F.R. § 404.1527(f); Walker v. Soc. Sec. Admin.,
Comm’r, 987 F.3d 1333, 1338 (11th Cir. 2021); McNamee v. Soc. Sec. Admin.,
164 F. App’x 919, 923 (11th Cir. 2006) (citation omitted) (stating that
“[g]enerally, the opinions of examining physicians are given more weight than

those of non-examining physicians[;] treating physicians[’ opinions] are given
more weight than [non-treating physicians;] and the opinions of specialists are
given more weight on issues within the area of expertise than those of non-
specialists”).

An ALJ is required to consider every medical opinion. See 20 C.F.R.
§ 404.1527(c) (stating that “[r]egardless of its source, we will evaluate every
medical opinion we receive”). While “the ALJ is free to reject the opinion of any
physician when the evidence supports a contrary conclusion,” Oldham v.
Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (citation omitted); see also 20

C.F.R. § 404.1527(c)(2), “the ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor,” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing Sharfarz, 825 F.2d at
279); Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
3. Analysis
After summarizing the evidence of record, see Tr. at 20-23, the ALJ stated
he gave “great weight” to the opinions of Dr. Brown and Dr. Stanley, finding
that they were “consistent with and supported by subsequent opinions” from

Dr. Mendoza and Dr. Shaw. Tr. at 22-23.8 The ALJ also gave “great weight” to
Dr. Mendoza’s and Dr. Shaw’s opinions. Tr. at 23.
The undersigned finds no error in the ALJ’s assessment of the above
opinions. The Decision makes clear that the ALJ did not rely solely on the

opinions of the state agency medical consultants and that he considered the
evidence as a whole. The ALJ discussed the evidence of record—including
evidence postdating the opinions—and permissibly found that the state agency

8 The ALJ did not refer to the state agency medical consultants by name, but he
cited the exhibits containing their opinions. Tr. at 22 (citing Exhibit 4A); Tr. at 84-95 (Exhibit
4A, containing the opinions of Dr. Brown and Dr. Stanley); Tr. at 23 (citing Exhibits 13F and
14F); Tr. at 709-723 (Exhibit 13F, containing the opinions of Dr. Mendoza); Tr. at 724 (Exhibit
14F, containing the opinions of Dr. Shaw).
medical consultants’ opinions were consistent with the evidence. Tr. at 20-23;
see Oldham, 660 F.2d at 1084. The evidence postdating the opinions does not
undermine the substantial evidence supporting the ALJ’s Decision. See, e.g.,

Tr. at 868 (March 2018 treatment note indicating Plaintiff had full range of
motion “without restriction” in her cervical spine and her “[l]eft shoulder exam
identifies mild weakness in her rotator cuff exam but this is minimal, 4+/5”);9
Tr. at 867 (September 2018 treatment note indicating that Plaintiff had been

“com[ing] in intermittently for cortisone injections” for her left shoulder and
that “[t]he last one was in March[ and] lasted up until 2 months ago”). To the
extent Plaintiff relies on her subjective symptoms to argue the ALJ’s
assessment of the state agency medical consultants’ opinions is not supported
by substantial evidence, see Pl.’s Br. at 11-13, the ALJ found that Plaintiff’s
subjective complaints were “not entirely consistent with the medical evidence

and other evidence in the record,” Tr. at 20, and Plaintiff does not challenge this
finding.
B. Appeals Council Evidence
1. Parties’ Arguments
Plaintiff contends the ALJ erred in declining to remand the matter to the

ALJ for consideration of new evidence (the new medical records from Plaintiff’s
treating orthopedic physician) that was in “clear conflict with the ALJ’s

9 The March 2018 treatment note postdates only Dr. Brown’s and Dr. Stanley’s
opinions.
assumption [ ]that [Plaintiff’s] left shoulder condition was under good control[.]”
Pl.’s Br. at 15. Responding, Defendant argues the Appeals Council
appropriately declined to remand the matter because the evidence submitted to

the Appeals Council would not have “changed the administrative result.” Def.’s
Mem. at 9.
2. Applicable Law
When the Appeals Council is presented with evidence that was not before
the ALJ, the Appeals Council must consider the evidence if it 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.” 20 C.F.R. § 404.970(a)(5). In addition, a claimant must
show good cause for submitting new evidence to the Appeals Council. See 20

C.F.R. § 404.970(b).
Evidence may be chronologically relevant even if it postdates the ALJ’s
decision. See Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1322
(11th Cir. 2015). In Washington, for instance, the United States Court of

Appeals for the Eleventh Circuit held that an examining psychologist’s opinions
were chronologically relevant “even though [the psychologist] examined [the
claimant approximately seven] months after the ALJ’s decision.” Id. This was
because the psychologist reviewed the claimant’s treatment records from the

period before the ALJ’s decision; because the claimant told the psychologist he
had suffered from the conditions at issue “throughout his life” (which obviously
would include the relevant time period); and because there was “no assertion or

evidence” that the claimant’s condition worsened “in the period following the
ALJ’s decision.” Id.
In Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553 (11th Cir. 2016), on
the other hand, the Court found that newly submitted medical records were not

chronologically relevant. In doing so, the Court observed that the circumstances
were “significantly different” from those in Washington because the new records
in Stone “demonstrate[d] a worsening” of the relevant symptoms after the ALJ’s
decision. Id. at 554. Similarly, in Hargress v. Soc. Sec. Admin., Comm’r, 883

F.3d 1302, 1309-10 (11th Cir. 2018), the Court found that progress notes
postdating the ALJ’s decision did “not relate to the period before the
ALJ’s . . . decision” and “nothing in these new medical records indicates the
doctors considered [the claimant’s] past medical records or that the information

in them relates to the period at issue, which materially distinguishes this case
from Washington.” Hargress, 883 F.3d at 1309-10. Further, the Court found
that a treating physician’s opinion postdating the ALJ’s decision was not
chronologically relevant because, even though the physician opined that the

limitations dated back to 2013 (prior to the ALJ’s decision), “nothing in the form
[completed by the physician] or any other documents indicated that [the
physician] evaluated [the claimant’s] past medical records when forming that
opinion,” and the physician “did not treat [the claimant] in 2013.” Id. at 1310.
At the end of the day, although the Appeals Council is “not required to

give a . . . detailed explanation or to address each piece of new evidence
individually,” id. at 1309 (citing Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d
780, 784 (11th Cir. 2014)), if the Appeals Council “erroneously refuses to
consider evidence, it commits legal error and remand is appropriate,”

Washington, 806 F.3d at 1320.10
3. Analysis
In requesting review of the Decision by the Appeals Council, Plaintiff
submitted medical records from Plaintiff’s treating orthopedic physician: a

January 28, 2019 surgery report and two follow-up treatment notes (dated
March 11, 2019 and February 11, 2019). See Tr. at 2, 31-34.11 The Appeals

10 By contrast, if the Appeals Council actually considers evidence first presented
to it but denies review, different standards apply. If a claimant challenges the Appeals
Council’s denial in that instance, a reviewing court must determine whether the new evidence
renders the denial of benefits erroneous. See Mitchell, 771 F.3d at 784-85 (citing Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007)); see also Coleman v. Comm’r
of Soc. Sec., 454 F. App’x 751, 754 (11th Cir. 2011) (citation omitted) (noting that “[t]he Appeals
Council may deny review if the new evidence does not show the ALJ’s decision to be
erroneous”). In other words, a claimant seeking remand under sentence four of 42 U.S.C.
§ 405(g), “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 v. Comm’r of Soc. Sec., 522 F. App’x 897, 902 (11th Cir. 2013) (unpublished)
(citing Ingram, 496 F.3d at 1266-67); see also Mitchell, 771 F.3d at 785.

11 In her Brief, Plaintiff initially states she submitted to the Appeals Council
“several months of progress notes and a left shoulder reconstructive surgery report dated just
five weeks before the [Decision].” Pl.’s Br. at 13. However, the administrative transcript, as
well as Plaintiff’s discussion of the evidence in her Brief, shows that she submitted only two
treatment notes and the surgery report. See Tr. at 2, 31-34; Pl.’s Br. at 14.
Council found that “this evidence does not show a reasonable probability that it
would change the outcome of the [D]ecision,” Tr. at 2, and evidently declined to
consider it.

Upon review, the undersigned agrees with the Appeals Council that there
is no reasonable probability that the new medical records would change the
outcome of the Decision. The surgery report merely describes the surgery
performed on January 28, 2019. See Tr. at 33-34. The February 2019 treatment
note indicates that Plaintiff was “[d]oing well without issues” and that her

“[r]ange of motion [was] limited as expected.” Tr. at 32. The March 2019
treatment note also states Plaintiff was “doing well” and “ha[d] no real
complaints,” other than “still [having] some issues sleeping for the most part.”
Tr. at 31. According to the note, “[t]his has been pretty much the way it has
been for the last few weeks.” Tr. at 31. Plaintiff also reported “a lot of posterior

pain due to capsulitis,” but Plaintiff’s capsulitis was found to be moderate. Tr.
at 31. Plaintiff was given “weight restrictions of no more than 3 pounds,” offered
a “corticosteroid injection in the posterior capsule to help with capsulitis,” and
“[i]nstructed on icing techniques and modification of activity.” Tr. at 31. There
is no indication that the weight restriction was a long-term one. Accordingly,
the Appeals Council did not err in declining to remand the matter to the ALJ

for consideration of the new medical records.
V. Conclusion
After a thorough review of the entire record, the undersigned finds that
the ALJ’s Decision is supported by substantial evidence. Accordingly, it is
ORDERED:
1. The Clerk of Court is directed to enter judgment pursuant to
sentence four of 42 U.S.C. § 405(g), AFFIRMING the Commissioner’s final
decision.
2. The Clerk is further directed to close the file.
DONE AND ORDERED in Jacksonville, Florida on March 19, 2021.

Ket
JAMES R. ain
United States Magistrate Judge

bhe
Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107170. Public record. Not legal advice.