Zaragoza v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHRISTOPHER JAMES

ZARAGOZA,

Plaintiff,

v. Case No.: 8:21-cv-4-DNF

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff Christopher James Zaragoza seeks judicial review of the final

decision of the Commissioner of the Social Security Administration (“SSA”)

denying his claim for a period of disability and disability insurance benefits. The

Commissioner filed the Transcript of the proceedings (hereinafter referred to as

“Tr.” followed by the appropriate page number), and the parties filed a joint legal

memorandum setting forth their respective positions. For the reasons set out herein,

the decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social

Security Act, 42 U.S.C. § 405(g).

I. Social Security Act Eligibility, Standard of Review, Procedural

History, and the ALJ’s Decision

A. Social Security Eligibility

The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be

severe, making the claimant unable to do his previous work, or any other substantial

gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.

B. Standard of Review

The Commissioner’s findings of fact are conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a

scintilla and is such relevant evidence as a reasonable person would accept as

adequate to support a conclusion. Even if the evidence preponderated against the

Commissioner’s findings, we must affirm if the decision reached is supported by

substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004).

In conducting this review, this Court may not reweigh the evidence or substitute its

judgment for that of the ALJ, but must consider the evidence as a whole, taking into

account evidence favorable as well as unfavorable to the decision. Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation omitted); Foote

v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan, 894 F.2d 1520,

1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s conclusions of

law are not presumed valid and are reviewed under a de novo standard. Keeton v.

Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); Maldonado

v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2 (11th Cir. July 8,

2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure to apply the correct

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

the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at

1066.

The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.

§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant

is currently engaged in substantial gainful employment. 20 C.F.R.

§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must

determine whether the impairment or combination of impairments from which the

claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.

§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s

severe impairments meet or medically equal a listed impairment. 20 C.F.R.

§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the

claimant’s severe impairments do not meet or medically equal a listed impairment,

then the ALJ must determine whether the claimant has the residual functional

capacity (“RFC”) to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),

(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).

If the claimant cannot perform his past relevant work, the ALJ must determine

at step five whether the claimant’s RFC permits him to perform other work that

exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), (g),

416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may

establish whether the claimant is capable of performing other work available in the

national economy. The first is by applying the Medical Vocational Guidelines, and

the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,

1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933

(11th Cir. 2015).

The claimant bears the burden of proof through step four. Atha, 616 F. App’x

at 933. If the claimant meets this burden, then the burden temporarily shifts to the

Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20

C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work

that exists in significant numbers in the national economy that the claimant is able

to perform, only then does the burden shift back to the claimant to prove he is unable

to perform these jobs. Atha, 616 F. App’x at 993.

C. Procedural History

Plaintiff filed an application for a period of disability and disability insurance

benefits on February 3, 2017, alleging disability beginning February 2, 2016. (Tr.

121, 299-300). The application was denied initially on March 17, 2017, and on

reconsideration on May 4, 2017. (Tr. 121, 138). Plaintiff requested a hearing and on

September 25, 2018, a hearing was held before Administrative Law Judge James

Alderisio (“ALJ”). (Tr. 75-106). On January 10, 2019, the ALJ entered a decision

finding Plaintiff not disabled from February 2, 2016, through the date of the decision.

(Tr. 144-153). On June 27, 2019, the Appeals Council remanded the case to the ALJ.

(Tr. 160-61). The Appeals Council determined that even though Plaintiff had

submitted short-term disability records to the ALJ, the records were not included on

the List of Exhibits attached to the hearing decision even after the ALJ expressed a

willingness to accept them. (Tr. 160). On remand, the Appeals Council required the

ALJ to address the short-term disability benefits, allow Plaintiff an opportunity for

a hearing, take any further action needed, and issue a new decision. (Tr. 160-61).

On remand, the ALJ held a second hearing on February 27, 2020. (Tr. 54-73).

On April 28, 2020, the ALJ entered a decision finding Plaintiff not under a disability

from February 2, 2016, through the date of the decision. (Tr. 16-26). Plaintiff

requested review of the hearing decision, but on November 2, 2020, the Appeals

Council denied Plaintiff’s request. (Tr. 1-6). Plaintiff initiated the instant action by

Complaint (Doc. 1) filed on January 4, 2021, and the case is ripe for review. The

parties consented to proceed before a United States Magistrate Judge for all

proceedings. (Doc. 18).

D. Summary of ALJ’s Decision

In this matter, the ALJ found Plaintiff met the insured status requirements of

the Social Security Act through September 30, 2020. (Tr. 18). At step one of the

sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial

gainful activity since February 2, 2016, the alleged onset date. (Tr. 18). At step two,

the ALJ found that Plaintiff had the following severe impairments: “systemic lupus

erythematosus (SLE), diabetes mellitus, irritable bowel syndrome (IBS),

degenerative disc disease (DDD) of the cervical spine, arthritis, and obesity” (Tr.

19). At step three, the ALJ found that Plaintiff did not have an impairment or

combination of impairments that meets or medically equals the severity of any of

the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 §§ C.F.R.

404.1520(d), 404.1525, and 404.1526). (Tr. 21).

Before proceeding to step four, the ALJ found that Plaintiff had the following

RFC: “After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in 20

[C.F.R. §] 404.1567(b) except that the claimant must avoid hazardous machinery

and vibration.” (Tr. 21). At step four, the ALJ found that Plaintiff was capable of

performing past relevant work as a customer service representative, sales

representative, support analyst, and manager of a retail store. (Tr. 24). The ALJ

determined that this work does not require the performance of work-related activities

precluded by Plaintiff’s RFC. (Tr. 24-25). The ALJ concluded that Plaintiff had not

been under a disability from February 2, 2016, through the date of the decision. (Tr.

26).

II. Analysis

On appeal, Plaintiff raises the following three issues: (1) whether the ALJ

properly evaluated treating physician Dr. Capone’s opinion; (2) whether the ALJ

erred by not considering LMHC Pendleton’s treatment record;1 and (3) whether the

Appeals Council erred in denying Plaintiff’s request for review despite the proffer

of additional evidence.2 (Doc. 23, p. 23, 31, 41).

A. Dr. Capone’s Opinion

Plaintiff argues that the ALJ did not provide sufficient reasons to afford little

weight to Edward Capone, D.O.’s opinion. (Doc. 23, p. 25). The Commissioner

1 The Commissioner objected to Plaintiff’s framing of this issue and asserts that the issue should

be, “whether substantial evidence supports the ALJ’s finding that Plaintiff’s mental impairments

were non-severe.” (Doc. 23, p. 31 n.12). The Court will address both parties’ arguments in the

Opinion and Order.

2 The Commissioner again objected to Plaintiff’s framing of this issue. The Court reframed it to

reflect the issue that was raised.

responds that the ALJ gave at leave one proper reason supported by substantial

evidence for giving Dr. Capone’s opinion little weight. (Doc. 23, p. 28).

At step four, an ALJ must properly consider treating, examining, and non-

examining physician’s opinions and weigh these opinions and findings as an

integral part of the ALJ’s RFC determination. See Rosario v. Comm’r of Soc. Sec.,

877 F. Supp. 2d 1254, 1265 (M.D. Fla. 2012). Whenever a physician offers an

opinion concerning the nature and severity of a claimant’s impairments—including

the claimant’s symptoms, diagnosis, and prognosis; physical and mental

restrictions; or what the claimant can still do—the ALJ must state with particularity

the weight given to the opinion and the reasons therefor. Winschel v. Comm’r of

Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011). Without such an explanation,

“it is impossible for a reviewing court to determine whether the ultimate decision

on the merits of the claim is rational and supported by substantial evidence.” Id.

(citing Cowart, 662 F.2d at 735).

The opinions of treating physicians are entitled to substantial or considerable

weight unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d

1232, 1240 (11th Cir. 2004). The Eleventh Circuit has concluded that good cause

exists when: (1) the treating physician’s opinion was not bolstered by the evidence;

(2) the evidence supported a contrary finding; or (3) the treating physician’s opinion

was conclusory or inconsistent with the doctor’s own medical records. Id.

Even though examining doctors’ opinions are not entitled to deference, an

ALJ is nonetheless required to consider every medical opinion. Bennett v. Astrue,

No. 308-CV-646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing

McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); Crawford v. Comm’r of Soc.

Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)). “The ALJ is to consider a number

of factors in determining how much weight to give to each medical opinion: (1)

whether the doctor has examined the claimant; (2) the length, nature, and extent of

a treating doctor’s relationship with the claimant; (3) the medical evidence and

explanation supporting the doctor’s opinion; (4) how consistent the doctor’s ‘opinion

is with the record as a whole’; and (5) the doctor’s specialization.” Forsyth v.

Comm’r of Soc. Sec., 503 F. App’x 892, 893 (11th Cir. 2013) (citing 20 C.F.R. §§

404.1527(c), 416.927(c)).

On February 3, 2017, Dr. Capone examined Plaintiff. (Tr. 563-64). He

assessed Plaintiff with: (1) systemic lupus erythematosus with glomerular disease,

unspecified SLE type; and (2) degenerative joint disease, cervical. (Tr. 563).

Plaintiff denied fatigue, denied abdominal pain, denied diarrhea, denied

constipation, denied nausea, denied neck pain, denied back pain, denied joint pain,

and denied weakness. (Tr. 564). Dr. Capone found Plaintiff had normal range of

motions for all joints, no swelling or deformity, and no effusions. (Tr. 563).

On the same date, Dr. Capone completed a form for an insurance disability

claim for Plaintiff. (Tr. 439-42). In this form, Dr. Capone found that Plaintiff was

“unable to concentrate, multitask and help customers due to chronic pain and

frequent gastrointestinal problems” and would not be able to perform these job

functions. (Tr. 439, 441). Dr. Capone also determined Plaintiff had exertional and

other limitations as enumerated by the ALJ below. (Tr. 440). He further found that

“flare ups will make any activity difficult to perform due to pain/nausea.” (Tr. 442).

Dr. Capone completed a different form on October 5, 2017, for Plaintiff to qualify

for subsidized childcare. (Tr. 445). In this form, Dr. Capone found Plaintiff

permanently disabled based on his diagnosis of lupus and degenerative spine disease.

(Tr. 445). He wrote, “Patient is unable to work and is going through disability

process.” (Tr. 445). Dr. Capone also found that Plaintiff needed assistance with

childcare because he was in constant pain and watching his children caused pain, he

had fatigue, and he was unable to provide the attention and care needed for his

children. (Tr. 445).

In the decision, the ALJ discussed Dr. Capone’s opinion:

As noted above, Dr. Capone opined in February 2017 that the

claimant was unable to perform functions of his job related to

concentration, multitasking, and customer service due to his

fatigue secondary to lupus. He further opined that the claimant

could only occasionally climb, crawl, kneel, lift, pull, push,

reach, carry, bend, or twist. In addition, he opined that the

claimant could frequently grasp, perform repetitive motion,

and perform gross manipulation, but could occasionally

perform fine manipulation and could occasionally stand, stoop,

and walk. He further opined that the claimant could

occasionally lift up to 35 pounds and frequently lift up to five

pounds and would require scheduled absences from work once

every two months for follow up treatment (Exhibit 19E). The

undersigned afforded this opinion little weight because it is

contrary to the medical evidence. As noted above, the

claimant’s physical examination[s] routinely show intact

findings for range of motion, muscle strength, gait, sensation,

reflexes, and motor function. In addition, the claimant testified

at the subsequent hearing that he was not receiving any

treatment. Therefore, given the lack of corroborative clinical

abnormalities, the undersigned finds that this opinion is both

unsupported and inconsistent with the medical evidence of

record. Dr. Capone subsequently confirmed in October 2017

that the claimant was “permanently disabled” (Exhibit 19E).

This latter opinion was afforded little weight because it is

conclusory and addresses an issue reserved to the

Commissioner. Moreover, it is contrary to the medical

evidence, which shows mostly normal physical examination

findings as discussed above.

(Tr. 24).

Substantial evidence supports the ALJ’s decision to afford Dr. Capone’s

opinion little weight. First, the ALJ found that the opinion is contrary to the medical

evidence. (Tr. 24). The ALJ noted that Plaintiff’s physical examinations routinely

show normal range of motion, muscle strength, gait, sensation, reflexes, and motor

function. (Tr. 24). Indeed, Dr. Capone’s own treatment record was contrary to his

opinion. In his treatment note, he found Plaintiff denied fatigue, pain, and

gastrointestinal difficulties. (Tr. 564). On examination, he noted that Plaintiff had a

normal range of motion in all joints, no swelling or deformity, and no effusions. (Tr.

563). Basically, Dr. Capone’s examination of Plaintiff was generally normal. (Tr.

563-566). But in his opinion, he found Plaintiff to have chronic pain and frequent

gastrointestinal problems, and many exertional and other limitations. (Tr. 439-40).

Dr. Capone did not explain how he reached this opinion given his generally normal

examination findings. (Tr. 439). The ALJ properly discounted Dr. Capone’s opinion

because it was not supported by his own treatment note.

Plaintiff also cites various records that include some abnormal findings. (Doc.

23, p. 26-27). The issue is not whether the ALJ could have relied on other evidence

in assigning weight to Dr. Capone’s opinion, but whether substantial evidence in the

record supports the ALJ’s finding. Porto v. Acting Comm’r of Soc. Sec. Admin., 851

F. App'x 142, 147 (11th Cir. 2021) (citing Lewis v. Callahan, 125 F.3d 1436, 1440

(11th Cir. 1997)). Here, the ALJ considered Dr. Capone’s entire opinion and

determined that it was contrary to the medical evidence. (Tr. 24). The ALJ found

Plaintiff’s medical examinations – including the one conducted by Dr. Capone –

showed routinely intact range of motion, muscle strength, gait, sensation, reflexes,

and motor function. (Tr. 24, 486-87, 495, 509, 519-20, 563). These findings are

supported by the treatment notes. Moreover, the Court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that of the Commissioner.

Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). Even if

the evidence preponderates against the Commissioner’s decision, the Court must

affirm if substantial evidence supports the Commissioner’s decision. Buckwalter v.

Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021). Here, substantial

evidence supports the ALJ’s decision and thus the ALJ did not err in affording little

weight to Dr. Capone’s opinion.3

One final note – in the October 2017 form for subsidized childcare, Dr.

Capone checked a box that Plaintiff was permanently disabled. (Tr. 445). Dr. Capone

explained that Plaintiff was diagnosed with lupus and degenerative spine disease,

was unable to work, and was going through the disability process. (Tr. 445). The

ALJ afforded little weight to this opinion because it was conclusory and an issue

reserved to the Commissioner. (Tr. 24). Dr. Capone’s statement that Plaintiff is

disabled is conclusory and the explanation provided little support for such a finding.

Moreover, a medical source’s determination that an individual is permanently

disabled “is not dispositive of a disability claim because the determination is

reserved to the administrative law judge acting on behalf of the Commissioner.”

Walker v. Soc. Sec. Admin., Comm’r, 987 F.3d 1333, 1339 (11th Cir. 2021). For

these reasons, the ALJ did not err in affording little weight to this opinion.

3 The ALJ also mentioned that at the hearing, Plaintiff testified that he was not receiving any

treatment. (Tr. 24). Plaintiff explained that he lost his insurance and was unable to afford additional

medical treatment. (Doc. 23, p. 25-26). In affording little weight to Dr. Capone’s opinion, the ALJ

focused on the opinion being contrary to the medical records in evidence, which showed generally

normal examination findings. (Tr. 24). The Court finds this reason sufficient to determine the

ALJ’s decision as to this issue was supported by substantial evidence.

B. LMHC Pendleton’s Treatment Record

Plaintiff next argues that the ALJ erred in failing to consider Licensed Mental

Health Counselor (“LMHC”) Terri Pendleton’s assessment. (Doc. 23, p. 33). And

Plaintiff points out that when discussing the four broad areas of mental functioning

at step two, the ALJ specifically stated that “[n]otably, the claimant sought no mental

health therapy during the period at issue.” (Tr. 20). The Commissioner claims that

this misstatement was harmless error. (Doc. 23, p. 37). The Commissioner argues

that a licensed mental health counselor is not an acceptable medical source and thus

could not provide an opinion. (Doc. 23, p. 39). The Commissioner also argues that

Pendleton did not describe any work limitations for Plaintiff and thus there were no

opinions to consider. (Doc. 23, p. 40).

Pendleton’s record reflects that she met with Plaintiff on February 6, 2020.

(Tr. 801). Plaintiff presented with cognitive functioning as oriented/alert, mood as

depressed, functional status as intact, affect as blunted, and interpersonal as

interactive. (Tr. 801). Pendleton diagnosed Plaintiff with depressive disorder due to

another medical condition, with major depressive-life episode. (Tr. 801). Plaintiff

reported a history of violence in childhood, and reported he angered easily, yelled,

threw things, exploded, and agitated easily. (Tr. 801). He claimed not to respect

authority and challenged his bosses, while being resistant to feedback. (Tr. 801). He

thought he was smarter than everyone else and was very arrogant and flippant. (Tr.

801). He also reported a history of cutting and self-harm. (Tr. 801). He further

reported that he felt out of control and in constant pain. (Tr. 801). Most days he

claimed to stay in bed and was sad, depressed, and experienced no joy in his life.

(Tr. 801). He reported disturbed sleep, never felt rested, no appetite, and had

financial stress. (Tr. 801). Pendleton used interventions of exploration of coping

patterns, exploration of emotions, and exploration of relationship patterns. (Tr. 801).

She included no treatment plan progress. (Tr. 801).

Under the regulations, “[m]edical opinions are statements from acceptable

medical sources that reflect judgments about the nature and severity of your

impairment(s), including your symptoms, diagnosis and prognosis, what you can

still do despite impairments(s), and your physical or mental restrictions.” 20 C.F.R.

§ 404.1527(a)(1). While Plaintiff contends that the ALJ erred in failing to consider

Pendleton’s opinion, the February 2020 treatment note does not constitute a

“medical opinion” because it is not a statement from an acceptable medical source,

such as a physician or psychologist. Because Pendleton was a licensed mental health

counselor, she was not an “acceptable medical source” and she could not establish

the existence of a medically determinable impairment. Farnsworth v. Soc. Sec.

Admin., 636 F. App’x 776, 783 (11th Cir. 2016). Instead, Pendleton was categorized

as an “other medical source.” Id. “Thus, the ALJ was not required to assign and

explain the weight given to that evidence.” McMahon, 583 F. App’x at 892. And

while the ALJ must address medical opinions, he is not required to address every

piece of evidence in the record. Id. (citing Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir.2005) (“stating that ‘there is no rigid requirement that the ALJ specifically

refer to every piece of evidence in his decision’”); and Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir.1981) (“noting that the ALJ should sufficiently explain the

weight given to ‘obviously probative’ evidence”)).

An ALJ “may” consider evidence from licensed mental health counselors in

determining the severity (but not the existence) of a medically determinable

impairment and how an impairment affects an individual’s ability to function.

Figuera v. Comm’r of Soc. Sec., 819 F. App’x 870, 872 (11th Cir. 2020); SSR 06-

3p.4 Here, Pendleton did not provide an opinion as to the severity of Plaintiff’s

medically determinable impairments nor how his mental impairments affect his

ability to function. Pendleton’s February 2020 progress note simply includes a

diagnosis (which cannot be used to establish a medically determinable impairment

because Pendleton is an “other medical source”), Plaintiff’s presentation, and then a

lengthy recitation of Plaintiff’s subjective complaints. (Tr. 801). Pendleton did not

opine as to the severity of Plaintiff’s medically determinable mental impairments or

how his limitations would affect his ability to function. In essence, there is no

4 SSR 06-3p was rescinded in March 2017, but was in effect at the time this claim was filed. See

82 Fed. Reg. 15,263 (Mar. 27, 2017).

opinion from Pendleton that the ALJ needed to consider. And while it may have

been better if the ALJ mentioned this progress note, the ALJ was not required to

consider each piece of evidence in the record. See McMahon, 583 F. App’x at 891;

Dyer, 395 F.3d at 1211. In sum, even if the ALJ misstated that Plaintiff did not seek

mental health therapy and erred in not considering Pendleton’s February 2020

progress note, these errors are harmless because Pendleton did not render any

opinion on the severity of a medically determinable impairment or any functional

limitations stemming from this impairment, the two areas permitted as an “other

medical source.”

C. Appeals Council Review

Plaintiff argues that the Appeals Council erred by failing to evaluate evidence

submitted to it from LMHC Pendleton.5 (Doc. 23, p. 42). The Commissioner claims

that this evidence is not chronologically relevant and, even if it is, the evidence

would not change the outcome of the decision and therefore, the Appeals Council

committed no error. (Doc. 23, p. 46-47).

“‘With a few exceptions, the claimant is allowed to present new evidence at

each stage of this administrative process,’ including before the Appeals Council.”

Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015)

5 Plaintiff submitted other evidence to the Appeals Council, but only cited Pendleton’s May 25

letter, and raised no argument as to this other evidence. (Doc. 23, p. 42-45).

(quoting Ingram v. Comm’r of Soc., Sec. Admin., 496 F.3d 1253, 1261 (11th

Cir.2007)). Under new regulations effective in 2017,6 the Appeals Council will

review a case 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.”

20 C.F.R. § 404.970(a)(5); 20 C.F.R. § 416.1470(a)(5). New evidence is

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

decision. Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1309 (11th Cir.

2018). The new regulation added an additional requirement that 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 § 416.1435….” 20 C.F.R. § 404.970(b); 20 C.F.R. § 416.1470(b).

The Appeals Council need not give a detailed explanation or further address

each piece of new evidence individually. Hargress, 883 F.3d at 1309 (citing Mitchell

v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014)). If the ALJ’s

decision is contrary to the weight of the evidence – including the new evidence –

then the Appeals Council must grant the petition for review. Id.

6 In 2016, 20 C.F.R. § 416.1470(a)(5) was amended, effective January 17, 2017, but with

compliance not required until May 1, 2017. See 81 Fed. Reg. 90987, 90996 (Dec. 16, 2016). So

the regulations went into effect before Plaintiff submitted the additional evidence and before the

Appeals Council issued its decision.

Before reaching the substance of the evidence submitted to the Appeals

Council, Plaintiff raises some procedural arguments. First, Plaintiff claims that if the

Appeals Council determined the evidence did not relate back then it had to explain

why it did not accept the additional evidence and advise Plaintiff of his right to file

a new application, citing 20 C.F.R. § 404.970(c). (Doc. 23, p. 43). Second, Plaintiff

argues that it is unclear whether the Appeals Council ever saw this new evidence

because it was not listed as evidence it considered. (Doc. 23, p. 43). In the Notice of

Appeals Council Action, the Appeals Council specifically addressed the evidence

submitted to it. (Tr. 2).

You submitted 2 pages from T. Pendleton, LMHC dated

February 6, 2020. This evidence is not new because it is a copy

of Exhibit(s) 16F. We did not exhibit this evidence.

You also submitted 2 pages from Akumin dated March 30,

2020, and 7 pages of records from T. Pendleton, LMHC dated

March 5, 2020 to April 28, 2020. We find this evidence does

not show a reasonable probability that it would change the

outcome of the decision. We did not exhibit this evidence.

You submitted 6 pages of records from T. Pendleton, LMHC

dated May 5, 2020 to May 25, 2020. The Administrative Law

Judge decided your case through April 28, 2020. This

additional evidence does not relate to the period at issue.

Therefore, it does not affect the decision about whether you

were disabled beginning on or before April 28, 2020.

If you want us to consider whether you were disabled after

April 28, 2020, you need to apply again. If you file a new claim

for disability insurance benefits within 6 months after you

receive this letter, we can use June 19, 2020, the date of your

request for review, as the date of your new claim. The date you

file a new claim can make a difference in the amount of

benefits we can pay.

You have the right to file a new application at any time, but

filing a new application is not the same as filing a civil action.

If you disagree with our action and file a new application

instead of filing a civil action, you might lose some benefits or

not qualify for any benefits. So, if you disagree with our action,

you should file a civil action within 60 days as described

below.

(Tr. 2). From these statements, it is clear that the Appeals Council considered the

evidence submitted from Pendleton, explained it did not relate to the period at issue,

and advised Plaintiff of his right to file a new application. (Tr. 2). The Court finds

no merit in Plaintiff’s procedural arguments.

As to the evidence submitted after the ALJ’s April 28, 2020 decision, the

Appeals Council acknowledged receipt of 6 pages of records from Pendleton dated

May 5, 2020 through May 25, 2020. (Tr. 2). The Appeals Council found that this

additional evidence did not relate to the period at issue and therefore it did not affect

the decision about whether Plaintiff was disabled beginning on or before April 28,

2020. (Tr. 20). Because the evidence is dated after the April 28 decision, the Court

finds that this submission constitutes new evidence and Plaintiff has shown good

cause for the submission. Arguably, the evidence is relevant because Pendleton

noted that she saw Plaintiff one time when the records were originally requested and

had not had time to fully assess him. (Tr. 39). She then saw him ten more times and

reached her diagnosis. (Tr. 39). These records arguably appear to relate to the

relevant time period, which was on or before the ALJ’s decision.

The question then becomes whether a reasonable probability exists that the

records from May 5 through May 28, 2020 would change the administrative

outcome. See Phillips v. Soc. Sec. Admin., Comm’r, 833 F. App'x 308, 321 (11th Cir.

2020) (“However, even assuming these records were chronologically relevant,

remand is not required, as the records are not material”). They would not. As stated

above, Pendleton is a licensed mental health counselor and not an “acceptable

medical source.” Farnsworth v. Soc. Sec. Admin., 636 F. App’x 776, 783 (11th Cir.

2016). As a result, she cannot establish the existence of a medically determinable

impairment. Id. She can, however, opine as to the severity of an impairment and how

an impairment affects an individual’s ability to function. Figuera v. Comm’r of Soc.

Sec., 819 F. App’x 870, 872 (11th Cir. 2020); SSR 06-3p.

The progress notes from May 5, 2020 and May 20, 2020 provide the same

diagnoses from the February 2020 progress note of depressive disorder due to

another medical condition, with major depressive-like episode, but also include a

new diagnosis of narcissistic personality disorder. (Tr. 51-52). At both visits,

Pendleton found Plaintiff’s cognitive functioning as oriented/alert, mood as

euthymic, functional status as intact, affect as appropriate, and interpersonal as

interactive. (Tr. 51-52). She listed Plaintiff’s reported subjective complaints. (Tr. 51-

52). She also listed interventions as exploration of coping patterns and exploration

of emotions, but included no treatment plan progress. (Tr. 51-52). As in the February

2020 progress note discussed above, in these more recent progress notes Pendleton

did not provide an opinion on the severity of Plaintiff’s medically determinable

impairments nor how his mental impairments affect his ability to function.

Pendleton’s May 2020 progress notes simply include diagnoses (which as an “other

medical source” Pendleton cannot establish a medically determinable impairment),

Plaintiff’s presentation, and then a lengthy recitation of Plaintiff’s subjective

complaints. (Tr. 51-52). Pendleton did not opine as to the severity of Plaintiff’s

medically determinable mental impairments or how these impairments would affect

his ability to function. Thus, a reasonable probability does not exist that these

documents would not change the administrative outcome.

In addition to the progress notes, Plaintiff submitted a letter dated May 25,

2020 to the Appeals Council from Pendleton, which warrants closer scrutiny. (Tr.

39-41). In the letter, Pendleton explained the treatment history and that she had seen

Plaintiff 10 times. (Tr. 39). She also explained that she diagnosed Plaintiff with,

“depressive disorder due to a medical condition with major depression with

depressive like episodes and narcissistic personality disorder.” (Tr. 39). Pendleton

then goes into great detail about how Plaintiff fits “all the classic signs of the

[narcissistic personality] disorder.” (Tr. 39). But Pendleton, as an “other source”

cannot establish the existence of a medically determinable impairment, such as

narcissistic personality disorder. See Anteau v. Comm’r of Soc. Sec., 708 F. App’x

611, 613 (11th Cir. 2017) (finding that an “other source” cannot establish the

existence of a medically determinable impairment). And Plaintiff has not shown that

an acceptable medical source diagnosed Plaintiff with narcissistic personality

disorder. Indeed, the ALJ found Plaintiff’s medically determinable mental

impairment were depression and anxiety. (Tr. 20).

Arguably in the letter, Pendleton briefly discusses what possibly could be

construed as the severity of Plaintiff’s mental impairments and functional

limitations. (Tr. 41). Pendleton finds that Plaintiff’s “mental illness alone clearly

shows that he is incapable of work. His volatility, his complete disrespect for

authority and his inflated sense of self-importance would be disastrous in the work

arena.” (Tr. 41).

First, Pendleton’s opinion that based on Plaintiff’s mental illness he is

incapable of work is an issue reserved to the Commissioner and as a result, the Court

disregards it. See Walker v. Soc. Sec. Admin., Comm’r, 987 F.3d 1333, 1339 (11th

Cir. 2021). Second, Pendleton finds three functional limitations that would interfere

with work: (1) Plaintiff’s volatility; (2) his complete disrespect for authority; and (3)

his inflated sense of self-importance. (Tr. 41). But earlier in the letter when

describing all the elements of a narcissistic personality disorder, Pendleton

supported this diagnosis by finding Plaintiff had volatile and explosive anger,

believed in his superiority to his bosses, and had an exaggerated sense of self-

importance. (Tr. 39-40). Thus, these arguable severity or functional limitations

opinions all relate to Pendleton’s diagnosis of narcissistic personality disorder. Once

again, without an acceptable medical source to establish the medically determinable

impairment of narcissistic personality disorder, Pendleton’s opinion regarding the

arguable severity or functional limitations on Plaintiffs ability to function 1n a work

setting as to this impairment is undermined. See Anteau, 708 F. App’x at 613. Thus,

even if the Appeals Council erred in finding this additional evidence did not relate

to the period at issue, the error was harmless because there was no reasonable

probability that this May 25 letter would change the administrative outcome.

III. Conclusion

For the reasons discussed above, the Court finds that the decision of the

Commissioner is supported by substantial evidence and the Commissioner applied

the correct legal standard. The decision of the Commissioner is AFFIRMED. The

Clerk of Court is directed to enter judgment consistent with this opinion, terminate

all deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on January 14, 2022.

noueLaS N. RATER

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties