The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ELIZABETH ANNE HATLEY,
Plaintiff,
v. Case No. 6:20-cv-1881-JRK
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,1
Defendant.
OPINION AND ORDER2
I. Status
Elizabeth Anne Hatley (“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 “Spinal Stenosis,” “Degenerative Disc Disease,” “Osteoarthritis of
cervi[c]al spine and lumbar spine,” “Rheumatoid arthritis,” “Depression,”
“Fibromyalgia,” “Anemia,” “Myofascial pain syndrome,” “Peripheral
1 Kilolo Kijakazi is now the Acting Commissioner of Social Security. Pursuant to
Rule 25(d), Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew
Saul as Defendant in this suit. No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. ' 405(g).
2 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. 17), filed June 16, 2021; Reference Order (Doc. No. 19), entered June 21, 2021.
neuropathy,” “Bilateral facet arthropathy,” “obesity,” “chronic fatigue
syndrome,” “IBS,” “auto immune disease,” “endometriosis,” “ocular migraines,”
“PMJ,” “arphalija, [sic]” “iron insufficiency,” “leukocytosis,” “scoliosis,” “mild
facet,” “asthma,” “back pain,” and “vitamin d insufficiency.” Transcript of
Administrative Proceedings (Doc. No. 18; “Tr.” or “administrative transcript”),
filed June 16, 2021, at 88-89, 105, 249. Plaintiff filed an application for DIB on
January 27, 2017, alleging a disability onset date of February 17, 2016.3 Tr. at
194-200. The application was denied initially, Tr. at 88-102, 103, 122, 123-25,
and upon reconsideration, Tr. at 104-19, 120, 129, 130-35.
On November 15, 2019, an Administrative Law Judge (“ALJ”) held a
hearing, during which she heard testimony from Plaintiff, who appeared with
a non-attorney disability representative, and a vocational expert (“VE”). See Tr.
at 49-87, 126-27. Plaintiff was forty-seven years old at the time of the hearing.
Tr. at 61. On January 14, 2020, the ALJ issued a Decision finding Plaintiff not
disabled through the date of the Decision. See Tr. at 32-42.
Thereafter, Plaintiff sought review of the Decision by the Appeals Council
and submitted additional evidence in the form of a representative statement
and additional medical records. See Tr. at 5-6 (Appeals Council exhibit list and
3 Although actually filed on January 30, 2017, see Tr. at 194, the protective filing
date for the DIB application is listed elsewhere in the administrative transcript as January
27, 2017, see, e.g., Tr. at 88, 105.
order), 191-93 (request for review, including representative statement), 15-28
(medical records). On August 25, 2020, the Appeals Council denied Plaintiff’s
request for review, Tr. at 1-4, thereby making the ALJ’s Decision the final
decision of the Commissioner. On October 12, 2020, Plaintiff commenced this
action through counsel 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 argues: 1) the ALJ’s residual functional capacity
(“RFC”) assessment is not supported by substantial evidence because the ALJ
afforded “great weight” to “opinions of non-examining state agency medical
consultants whose opinions were issued more than a year before [] Plaintiff
underwent additional medical treatments”; and 2) the Appeals Council erred in
denying review after “Plaintiff submitted additional medical treatment
evidence from a time period after the date of the ALJ’s [D]ecision.” Joint
Memorandum (Doc. No. 22; “Joint Memo”), filed November 8, 2021, at 22, 34
(some emphasis omitted). After a thorough review of the entire record and
consideration of the parties’ respective arguments, 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 Simon v. Comm’r, Soc. Sec. Admin., 7
F.4th 1094, 1101-02 (11th Cir. 2021) (citations omitted); 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 34-42.
At step one, the ALJ determined Plaintiff “has not engaged in substantial
gainful activity since February 17, 2016, the alleged onset date.” Tr. at 34
(emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has
the following severe impairments: spinal disorders with radiculopathy,
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).
dysfunction of major joints, diffuse diseases of connective tissue/lyme disease,
osteoarthritis, inflammatory arthritis/fibromyalgia, and obesity.” Tr. at 35
(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 36 (emphasis and citation
omitted).
The ALJ determined Plaintiff has the following RFC:
[Plaintiff can] perform light work as defined in 20
[C.F.R. §] 404.1567(b). She can lift and/or carry 20 pounds
occasionally, 10 pounds frequently. She can stand and/or walk, with
normal breaks, for a total of 6 hours per 8-hour workday, and can
sit, with normal breaks, for a total of 6 hours per 8-hour workday.
She [c]an occasionally push/pull with bilateral lower extremities. In
terms of postural limitations, she can never climb ladders, ropes, or
scaffolds, but can occasionally climb ramps and stairs, stoop,
crouch, kneel, or crawl; and can constantly balance. In terms of
environmental limitations, she must avoid more than occasional
exposure to hazards, such as unprotected heights and uneven
terrain, vibrations, and extreme cold. Lastly, she would need to
alternate from sitting to standing, every 30 minutes, provided she
remains at the workstation and on task.
Tr. at 36 (emphasis omitted).
At step four, the ALJ relied on the testimony of the VE and found that
Plaintiff “is unable to perform any past relevant work” as “a combination job
consisting of respiratory therapist . . . dental and medical equipment . . . [and]
office manager,” as well as jobs of “public health coordinator” and “respiratory
therapist.” Tr. at 40 (some emphasis and citation omitted). At the fifth and final
step of the sequential inquiry, after considering Plaintiff’s age (“43 years
old . . . on the alleged disability onset date”), education (“at least a high school
education”), work experience, and RFC, Tr. at 40, the ALJ again relied on the
VE’s testimony and found that “there are jobs that exist in significant numbers
in the national economy that [Plaintiff] can perform,” such as “office helper,”
“marker, retail,” and “garment sorter.” Tr. at 41 (some emphasis and citation
omitted). The ALJ concluded Plaintiff “has not been under a disability . . . from
February 17, 2016, through the date of th[e D]ecision.” Tr. at 42 (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, Plaintiff challenges the ALJ’s assignment of “great weight” to
opinions of state-agency medical consultants that were rendered early in the
administrative process, and the Appeals Council’s decision to deny review in
light of additional medical evidence. Joint Memo at 22, 34. The issues are
addressed in turn.
A. ALJ’s Assignment of Great Weight to State-Agency Consultants’
Opinions
Plaintiff contends the ALJ erred in assigning “great weight” to the
opinions of non-examining state agency consultants. Joint Memo at 22.
Specifically, Plaintiff argues that the opinions were rendered early in the
administrative process, prior to Plaintiff undergoing certain procedures, and
therefore the physicians who rendered the opinions had an incomplete record
to review. Id. at 22-26. Responding, Defendant asserts the ALJ did not err in
evaluating the opinions because the ALJ assigned “an even more restrictive
RFC” than those assigned by the state-agency consultants. Id. at 26. Defendant
also argues the ALJ’s Decision makes clear she reviewed the medical evidence
of record in making the RFC determination, and the RFC is supported by
substantial evidence. Id. at 27-33.
“Medical opinions[5] 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).
Acceptable medical sources include licensed physicians, licensed psychologists,
5 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, 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). 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.
licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists. 20 C.F.R. § 404.1502(a).6
The Regulations establish a hierarchy among medical opinions 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
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);
6 For claims filed on or after March 27, 2017, acceptable medical sources also
include licensed audiologists, licensed Advanced Practice Registered Nurses, and licensed
Physician Assistants. 20 C.F.R. § 404.1502(a)(6)-(8).
see also 20 C.F.R. § 404.1527(f); Walker v. Soc. Sec. Admin., Comm’r, 987 F.3d
1333, 1338 (11th Cir. 2021) (citation omitted); 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, 125 F.3d
at 1440.
Here, the ALJ in assessing the opinion evidence (related to Plaintiff’s
physical impairments) assigned “great weight” to the opinions of non-examining
state agency physicians Shakra Junejo, M.D. and James Christensen, M.D. that
were rendered at the initial and reconsideration levels, respectively. Tr. at 39;
see Tr. at 98-100 (Dr. Junejo’s opinion), 115-17 (Dr. Christensen’s opinion).
These physicians opined generally that Plaintiff is capable of performing the
requirements of light work. See Tr. at 98-100, 115-17. In spite of assigning the
opinions “great weight,” the ALJ determined that “the medical evidence of
record supported more severe physical impairments, as discussed elsewhere in
th[e D]ecision, that warranted a more restrictive [RFC].” Tr. at 39. The RFC
ultimately assigned by the ALJ was indeed more restrictive than the opinions.
Tr. at 36.
In arguing error on the part of the ALJ, Plaintiff relies in part on
Brightmon v. Soc. Sec. Admin, Comm’r, 743 F. App’x 347, 352-54 (11th Cir.
2018). In Brightmon, the ALJ assigned “great weight” to an early opinion of a
state-agency consultant and adopted the consultant’s opinion as the RFC. See
id. The United States Court of Appeals for the Eleventh Circuit found error
because the opinion was rendered early in the process, prior to the “much more
developed” medical record, id. at 352, and because the medical record on the
whole supported greater restrictions, see id. at 352-54. Here, unlike in
Brightmon, the ALJ’s Decision makes clear that she appropriately considered
medical evidence post-dating the physicians’ opinions and assigned a more
restrictive RFC as a result.7 See Tr. at 36-39. The ALJ did not err in assigning
“great weight” to the opinions of Dr. Junejo and Dr. Christensen, and the ALJ’s
ultimate RFC determination is supported by substantial evidence.
B. Appeals Council’s Denial of Review
Plaintiff challenges the Appeals Council’s decision to deny review despite
the new evidence presented to it, contending the evidence was “relevant to the
time period” adjudicated by the ALJ. Joint Memo at 34-35. Plaintiff also argues
the evidence “strongly suggests that [Plaintiff] was, in fact, not doing well from
surgery and was still experiencing pain and functional limitations.” Id. at 35.
Responding, Defendant argues the evidence is not chronologically relevant, not
material, and does not carry a reasonable probability of changing the
administrative result. Id. at 36-38.
With few exceptions, a claimant may present new evidence at each stage
of the administrative process, including to the Appeals Council. See 20 C.F.R.
§§ 404.900(b), 416.1400(b). When the Appeals Council is presented with
7 Plaintiff concedes “there are no treating physician opinions in the record” and
does not argue any point of error on the part of the ALJ for failing to obtain those or an
examining opinion. Joint Memo at 24. The undersigned’s independent review of the
administrative transcript reveals that there are arguably other opinions from treating
physicians that qualify as “medical opinions” under the Regulations even though they were
not rendered for the specific purpose of opining about the type of work Plaintiff can perform.
See, e.g., Tr. at 918-23 (“Ambulatory Consultation” notes documenting various
musculoskeletal and range of motion findings). Again, Plaintiff does not assert any error on
the part of the ALJ regarding these arguable opinions, instead assuming they do not exist.
Given the concession of the point and because the medical evidence on the whole supports the
ALJ’s RFC finding, the undersigned does not find reversible error in this regard.
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),
416.1470(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), 416.1470(b).
Evidence may be chronologically relevant even if it post-dates 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 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 post-dating 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 post-dating 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.
Although the Appeals Council is “not required to give a . . . detailed
explanation or to address each piece of new evidence individually,” Hargress v.
Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1309 (11th Cir. 2018) (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 v. Soc. Sec. Admin., Comm’r, 806 F.3d
1317, 1320 (11th Cir. 2015). “When a claimant properly submits new evidence
to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Banks for Hunter v. Comm’r,
Soc. Sec. Admin., 686 F. App’x 706, 709 (11th Cir. 2017) (citing Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007)).
Here, in seeking review of the ALJ’s Decision, Plaintiff submitted an
Emergency Room Record dated February 26, 2020, Tr. at 15-18, and mental
health treatment notes dated January 28, 2020, Tr. at 19-22, and February 7,
2020, Tr. at 23-28. The Appeals Council recognized that Plaintiff submitted the
additional medical evidence but found that it “does not relate to the period at
issue” and therefore “does not affect the [D]ecision about whether [Plaintiff was]
disabled beginning on or before January 14, 2020.” Tr. at 2.
Even assuming the evidence was chronologically relevant, the
undersigned finds that it does not carry a reasonable possibility of changing the
administrative result. The records essentially document similar issues that
were alleged all along and that the ALJ considered. Accordingly, the Appeals
Council did not err in denying review and the ultimate denial of benefits was
not erroneous.
V. Conclusion
After a thorough review of the entire record, the undersigned finds that
the ALJ’s Decision is supported by substantial evidence, and the Appeals
Council did not err in denying review. In light of the foregoing, 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 May 28, 2022.
conan, Ke Kel
JAMES R. KLINDT
United States Magistrate Judge
kaw
Copies to:
Counsel of Record
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