Hodge v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JEANNE HODGE,

Plaintiff,

v. Case No. 8:21-cv-136-MAP

COMMISSIONER OF SOCIAL SECURITY

Defendant.

/

ORDER

Plaintiff Jeanne Hodge seeks judicial review of the denial of her claim for a

period of disability, disability insurance benefits (DIB), and Supplemental Security

Income (SSI). Plaintiff argues that the Administrative Law Judge (ALJ) committed

reversible error by improperly concluding that Plaintiff did not have a severe

impairment prior to January 1, 2020, and contends that remand is warranted under

sentence six of 42 U.S.C. § 405(g) based upon new, material, noncumulative evidence

provided by Plaintiff to the Court. As the ALJ’s decision was based on substantial

evidence and employed proper legal standards, and because remand under sentence

six is not warranted, the Commissioner’s decision is affirmed.

I. Background

Plaintiff, who was born in 1959, claimed disability beginning January 1, 2014

(Tr. 167, 171). Plaintiff obtained at least a high school education, and her past relevant

work experience included work as an insurance reviewer (Tr. 26-27, 201). Plaintiff

alleged disability due to post-traumatic stress disorder (PTSD), sexual trauma,

depression, and anxiety (Tr. 200).

Given her alleged disability, Plaintiff filed applications for a period of disability,

DIB, and SSI (Tr. 167-70, 171-76). The Social Security Administration (SSA) denied

Plaintiff’s claims both initially and upon reconsideration (Tr. 45-98, 103-08, 111-22).

Plaintiff then requested an administrative hearing (Tr. 123-24). Per Plaintiff’s request,

the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 34-44). Following

the hearing, the ALJ issued a partially favorable decision, finding that Plaintiff was

not disabled prior to January 1, 2020, but that Plaintiff became disabled as of January

1, 2020, and continued to be disabled through the date of the decision, noting that

Plaintiff’s disability was expected to last 12 months past the onset date (Tr. 12-33).

Additionally, the ALJ indicated that Plaintiff was not under a disability within the

meaning of the Social Security Act at any time through December 31, 2018, the date

last insured (Tr. 27).

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

the insured status requirements through December 31, 2018, and had not engaged in

substantial gainful activity since January 1, 2014, the alleged onset date (Tr. 19). After

conducting the administrative hearing and reviewing the evidence of record, the ALJ

determined that Plaintiff had the following medically determinable impairments prior

to January 1, 2020: history of lumbar discectomy in 1984, vitamin D deficiency,

insomnia, corneal dystrophy, bilateral cataract, refractive error, major depressive

disorder, unspecified anxiety disorder, and PTSD (Tr. 19). Even though the ALJ

identified several medically determinable impairments, the ALJ concluded that

Plaintiff did not have an impairment or combination of impairments that significantly

limited or was expected to significantly limit her ability to perform basic work-related

activities for 12 consecutive months (Tr. 19). Consequently, the ALJ found that

Plaintiff did not have a severe impairment or combination of impairments prior to

January 1, 2020 (Tr. 19).

According to the ALJ, beginning on January 1, 2020, Plaintiff had the severe

impairments of chronic obstructive pulmonary disease (COPD), obesity, and other

trauma/stressor-related disorder (Tr. 22). Notwithstanding the noted severe

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

combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 22). The ALJ then

concluded that Plaintiff retained a residual functional capacity (RFC) since January 1,

2020, to perform light work with the following limitations:

she can lift 20 pounds frequently and 10 pounds continuously; she can

carry 20 pounds occasionally and 10 pounds frequently; she can stand

and/or walk for 6 hours in an 8 hour day and sit for 6 hours in an 8 hour

day; she requires a sit/stand option with an alternating interval of 1-2

hours; she can frequently push and/or pull with the upper extremities

and reach above shoulder level with both arms; she can constantly reach

waist to chest with both arms, handle with both hands, finger with both

hands, and feel with both hands; she can occasionally stoop and crouch;

she can frequently climb ramps/stairs, balance, and crawl; she can

constantly kneel; she cannot climb ladders or scaffolds; she cannot work

around pulmonary irritants or high exposed places; she can occasionally

work around humidity/wetness, extreme cold, extreme heat, and

vibrations; she is able to perform simple, routine, and repetitive tasks; she

is able to understand, remember, and carry out simple instructions; she

is limited to work that requires occasional changes in the work setting;

and she is limited to work that requires occasional interaction with the

public, coworkers, and supervisors.

(Tr. 23-24). Considering Plaintiff’s noted impairments, the ALJ determined that, since

January 1, 2020, Plaintiff could not perform her past relevant work as an insurance

reviewer (Tr. 26).

In considering Plaintiff’s ability to perform other work, the ALJ indicated that

Plaintiff was an individual closely approaching retirement age on January 1, 2020, the

established disability onset date, and that Plaintiff did not have work skills she could

transfer to other occupations within the RFC. Given Plaintiff’s age, education, work

experience, and RFC, the ALJ found that, since January 1, 2020, no jobs existed in

significant numbers in the national economy that Plaintiff could perform (Tr. 27).

Accordingly, as noted, the ALJ concluded that Plaintiff was not disabled prior to

January 1, 2020, including not being under a disability for purposes of DIB prior to

December 31, 2018, but that Plaintiff became disabled on January 1, 2020, and

continued to be disabled through the date of the decision (Tr. 27).

Given the ALJ’s partially favorable findings, Plaintiff requested review from the

Appeals Council, which the Appeals Council denied (Tr. 1-6, 164-66). Plaintiff then

timely filed a complaint with this Court (Doc. 1). The case is now ripe for review

under 42 U.S.C. §§ 405(g), 1383(c)(3).

II. Standard of Review

To be entitled to benefits, a claimant must be disabled, meaning he or she must

be unable to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than

twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental

impairment” is an impairment that results from anatomical, physiological, or

psychological abnormalities, which are demonstrable by medically acceptable clinical

and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

To regularize the adjudicative process, the SSA promulgated the detailed

regulations currently in effect. These regulations establish a “sequential evaluation

process” to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.

If an individual is found disabled at any point in the sequential review, further inquiry

is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the ALJ

must determine, in sequence, the following: whether the claimant is currently engaged

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

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

severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart

P, Appendix 1; and whether the claimant can perform his or her past relevant work.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the claimant cannot perform the tasks

required of his or her prior work, step five of the evaluation requires the ALJ to decide

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

education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). A

claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert,

482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

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

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a

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

to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th

Cir. 2011) (citation and internal quotation marks omitted). While the court reviews

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

is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260

(11th Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh the

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

evidence preponderates against the ALJ’s decision. Mitchell v. Comm’r of Soc. Sec., 771

F.3d 780, 782 (11th Cir. 2014); Winschel, 631 F.3d at 1178 (citations omitted);

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s

failure to apply the correct law, or to give the reviewing court sufficient reasoning for

determining that he or she has conducted the proper legal analysis, mandates reversal.

Ingram, 496 F.3d at 1260 (citation omitted). The scope of review is thus limited to

determining whether the findings of the Commissioner are supported by substantial

evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g);

Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations omitted).

III. Discussion

A. Disability Onset Date

Plaintiff first contends that the ALJ erred by finding that Plaintiff had no severe

impairments prior to January 1, 2020. The claimant bears the burden of proving the

existence of a disability, as defined by the Social Security Act. Carnes v. Sullivan, 936

F.2d 1215, 1218 (11th Cir. 1991). To prove the existence of a disability, a claimant

must furnish medical and other evidence rather than simply relying on conclusory

statements of pain or other symptoms. 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(D) &

(H)(i); see 20 C.F.R. §§ 404.1529(b), 416.929(b) (“Your symptoms, such as pain,

fatigue, shortness of breath, weakness, or nervousness, will not be found to affect your

ability to do basic work activities unless medical signs or laboratory findings show that

a medically determinable impairment(s) is present.”).

In considering whether a claimant has a disability, the ALJ considers the

medical severity of a claimant’s impairments at step two of the sequential analysis. 20

C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Step two operates as a threshold

inquiry. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); see Gray v. Comm’r

of Soc. Sec., 550 F. App’x 850, 853 (11th Cir. 2013) (per curiam).1 At step two, a

claimant must show that he or she suffers from an impairment or combination of

impairments that significantly limits his or her physical or mental ability to perform

basic work activities, including physical work activities, such as walking, standing,

sitting, lifting, reaching, carrying, and handling, and mental work activities, such as

understanding, carrying out, and remembering simple instructions; use of judgment;

1 Unpublished opinions are not considered binding precedent but may be cited as persuasive

authority. 11th Cir. R. 36-2.

responding appropriately to supervision, coworkers, and usual work situations; and

dealing with changes in a routine work setting. See 20 C.F.R. §§ 404.1520(a)(4)(ii),

404.1521, 404.1522(a), 416.920(a)(4)(ii), 416.921, 416.922(a). The claimant bears the

burden of showing that an impairment is severe. See Doughty v. Apfel, 245 F.3d 1274,

1278 (11th Cir. 2001).

“An impairment is not severe only if the abnormality is so slight and its effect

so minimal that it would clearly not be expected to interfere with the individual’s

ability to work, irrespective of age, education or work experience.” McDaniel, 800 F.2d

at 1031; Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) (per curiam). “[T]he

‘severity’ of a medically ascertained disability must be measured in terms of its effect

upon ability to work, and not simply in terms of deviation from purely medical

standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547

(11th Cir. 1986). In other words, an impairment or combination of impairments is not

considered severe where it does not significantly limit the claimant’s physical or

mental ability to perform basic work activities. Turner v. Comm’r of Soc. Sec., 182 F.

App’x 946, 948 (11th Cir. 2006) (per curiam) (citations omitted); 20 C.F.R. §§ 404.1522,

416.922. Likewise, an impairment is considered non-severe if it fails to meet the

duration requirement, meaning it has not lasted or is not expected to last for a

continuous period of at least 12 months. See 20 C.F.R. §§ 404.1509, 416.909.

As the Commissioner contends, Plaintiff failed to point to any evidence

demonstrating that Plaintiff’s impairments would limit her ability to perform basic

work activities, thus rendering them severe impairments, prior to January 1, 2020.

Instead, Plaintiff relies on statements made in the January 2, 2020 psychological

consultative examination setting forth Plaintiff’s medical history, examination results,

and an opinion that Plaintiff would be limited to a reduced range of light work activity

and “posits that it is apparent that she did not go from having no severe impairments

whatsoever, to being limited to less than a full range of light work, including severe

mental limitations, the next day” (Doc. 22, at 10). While I appreciate Plaintiff’s

position, the record simply does not support an onset of disability prior to January 1,

2020.

Rather, as the ALJ indicated, the record is devoid of any physical health

treatment notes from July 2016 or any mental health treatment notes from May 2018

until the ALJ referred Plaintiff for both psychological and physical consultative

examinations in January 2020 (Tr. 24, 289-418). In fact, the ALJ addressed the lack

of records during the December 2019 administrative hearing, stating that he would

send Plaintiff for consultative examinations, given that the record appeared sparse (Tr.

41). Indeed, at the time of the administrative hearing, the medical record consisted

of 85 pages of treatment records from the Department of Veterans Affairs (VA),

ranging from July 2013 to April 2018 (Tr. 289-374). Following the hearing, Plaintiff’s

counsel submitted another 22 pages of records from the VA, ranging from April 1982

to March 2008 and mainly consisting of treatment for insomnia, vision issues, and

lower back pain (Tr. 377-98). Consistent with his statement, however, the ALJ sent

Plaintiff to consultative examinations with Dr. Thomas Trimmer and Dr. Eniola Owi

in January 2020, which formed the basis for his finding that Plaintiff became disabled

as of January 1, 2020 (Tr. 16-28, 400-05, 407-18).

Although the treatment records prior to January 1, 2020, showed that Plaintiff

was diagnosed with both physical and mental impairments, including anxiety,

depression, PTSD, vision problems, and lower back pain, the records do not support

a finding that any of Plaintiff’s impairments were severe before that time. As an initial

matter, “[d]iagnosis of a listed impairment is not alone sufficient; the record must

contain corroborative medical evidence supported by clinical and laboratory findings.”

Carnes, 936 F.2d at 1218. “Disability is determined by the effect an impairment has

on the claimant’s ability to work, rather than the diagnosis of an impairment itself.”

Davis v. Barnhart, 153 F. App’x 569, 572 (11th Cir. 2005) (per curiam). Furthermore,

the severity of a medically ascertained impairment is not measured in terms of

deviation from purely medical standards of bodily perfection or normality but rather

in terms of its effect upon ability to work. McCruter, 791 F.2d at 1547. Plaintiff’s

diagnoses alone therefore do not support a finding that she had a severe impairment

prior to January 1, 2020.

Nor do the treatment records establish that Plaintiff had a severe impairment

prior to that time. For example, as to Plaintiff’s lower back pain, the ALJ discussed a

January 2006 VA physical examination and functional capacity assessment, wherein

the examiner indicated that Plaintiff had a simple lumbar discectomy in 1984 that was

successful (Tr. 21, 383-91). The examiner indicated that Plaintiff did not experience

symptoms until 1991 or 1992 when back aches developed while doing sit-ups and

running and that Plaintiff experienced no chronic pain but rather only experienced

pain with some activities, including lifting more than 50 pounds “the wrong way” (T.

389). At that time, Plaintiff was receiving no formal treatment for her back pain, and

contemporaneous physical examination notes were unremarkable (Tr. 383-89).

Notwithstanding, Plaintiff was limited to being on her feet for one hour; walking six

miles in boots; walking four miles in field gear; walking four miles with field gear and

a 40-pound rucksack; remaining on her feet for two to three hours; and not being able

to run or do sit-ups (Tr. 390-91). Subsequent VA treatment records in April 2014

confirmed that Plaintiff still experienced chronic lower back pain, but examination

notes were unremarkable (Tr. 21, 339-44). Further, Plaintiff reported that her pain

level registered as a three on a 10-point scale, and her treatment regimen was

conservative, consisting of over-the-counter medications she could take as needed (Tr.

341-42).

Additionally, as the ALJ discussed, Plaintiff’s reported vision issues as early as

1982, which she managed conservatively with corrective lenses and/or glasses (Tr. 21,

332, 379-80, 384-85, 387, 389). Indeed, during a January 2015 optometry consult,

Plaintiff complained that she wanted new glasses because she experienced blurry

vision with her current glasses but vocalized no other complaints as to flashes, floaters,

or pain (Tr. 332). Plaintiff was diagnosed with corneal dystrophy, bilateral cataract,

and refractive error but demonstrated normal findings upon examination, except for

her visual acuity (Tr. 332-33). Even so, with correction, Plaintiff’s visual acuity

registered 20/40 (OS) and 20/50+2 (OD) (Tr. 332). Nothing in the record thus

showed that these or any of Plaintiff’s other physical impairments constituted severe

impairments before January 1, 2020.

Likewise, nothing in the record supports a finding that Plaintiff’s mental

impairments were severe prior to January 1, 2020. In the decision, the ALJ

acknowledged that Plaintiff stated that she stopped working in August 2013 due to

worsening psychological symptoms stemming from anxiety, depression, and PTSD

related to childhood trauma and adult sexual abuse in the military (Tr. 21-22). As the

ALJ highlighted, treatment records noted that a significant portion of Plaintiff’s stress

stemmed from financial reasons, housing issues, and lack of social support and that

she lived independently and could perform activities of daily living with only some

difficulties (Tr. 22). More importantly, mental status examination notes were typically

unremarkable, noting Plaintiff showed appropriate grooming and hygiene, appropriate

appearance, normal behavior, appropriate eye contact, no psychomotor deficits,

normal speech, normal thought content and process, normal to depressed or mildly

anxious mood, appropriate affect, no perceptual deficits, good to limited insight, good

to fair judgment, no suicidal or homicidal ideation, and intact memory, attention, and

fund of knowledge and was alert, cooperative, easy to engage, fully oriented, and

generally in no acute distress (Tr. 22, 303-19, 324-31, 334-39). Further, the record

indicated that Plaintiff experienced no psychiatric hospitalizations, had no suicide

attempts, both underwent therapy and received medication for her anxiety, and that

her major depressive disorder was in remission (Tr. 331, 334-38). Though Plaintiff

was diagnosed with and obtained treatment for her mental health impairments prior

to January 1, 2020, the record does not support a finding that Plaintiff’s mental

impairments caused more than a mild limitation in any functional area prior to

January 1, 2020, as the ALJ properly concluded (Tr. 22). See Smith v. Comm’r of Soc.

Sec., 501 F. App’x 875, 879 (11th Cir. 2012) (concluding that, though the record

indicated a history of anxiety and depression for which the claimant was prescribed

medication, nothing in the record indicated that the claimant experienced any effects

from the mental impairments that could be expected to interfere with her ability to

work). Given the foregoing, the ALJ did not err in finding that Plaintiff did not

experience a severe mental or physical impairment prior to January 1, 2020.2

Notwithstanding, Plaintiff argues that the ALJ should have obtained the

services of a medical expert if he deemed the record either inadequate or ambiguous

as to the specific onset date. In doing so, Plaintiff relies upon Social Security Ruling

(SSR) 83-20, arguing that SSR 83-20 prescribes the procedure by which the

Commissioner should determine the onset of disability. See SSR 83-20, 1983 WL 31249

(1983). Plaintiff’s reliance upon SSR 83-20 is misplaced, however. Namely, the SSA

explicitly rescinded and replaced SSR 83-20 as of October 2, 2018 when it issued SSR

18-01p, which directly addresses how the SSA determines the established onset date,

sometimes referred to as “EOD,” in disability claims. See SSR 18-01p, 2018 WL

4945639, at *1-2 (Oct. 2, 2018). SSR 18-01p states:

We need specific medical evidence to determine whether a claimant

meets the statutory definition of disability. In general, an individual has

2 As discussed below, the additional evidence provided by Plaintiff in this proceeding is not

material and thus would not change the result.

a statutory obligation to provide us with the evidence to prove to us that

he or she is disabled. This obligation includes providing us with evidence

to prove to us when he or she first met the statutory definition of

disability. The Act also precludes us from finding that an individual is

disabled unless he or she submits such evidence to us.

2018 WL 4945639, at *4 (footnotes omitted). If the ALJ needs to infer the date that a

claimant first meets the statutory definition of disability, the ALJ may call on the

services of a medical expert by soliciting testimony or requesting response to written

interrogatories. SSR 18-01p, 2018 WL 4945639, at *6. Importantly, “[t]he decision

to call on the services of [a medical expert] is always at the ALJ’s discretion,” and

“[n]either the claimant nor his or her representative can require an ALJ to call on the

services of [a medical expert] to assist in inferring the date that the claimant first met

the statutory definition of disability.” SSR 18-01p, 2018 WL 4945639, at *6.

Even though Social Security proceedings are inquisitorial rather than

adversarial in nature, claimants must establish their eligibility for benefits. Ingram,

496 F.3d at 1269; 20 C.F.R. §§ 404.1512(a), 416.912(a). During the administrative

process, therefore, a claimant must inform the SSA about or submit all evidence

known to the claimant relating to whether the claimant is blind or disabled. 20 C.F.R.

§§ 404.1512(a), 416.912(a). Though the claimant bears the burden of providing

medical evidence showing she is disabled, the ALJ is charged with developing a full

and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The ALJ

maintains this basic obligation to develop a full and fair record without regard for

whether the claimant is represented by counsel. Brown v. Shalala, 44 F.3d 931, 934

(11th Cir. 1995). When the plaintiff demonstrates that the record reveals evidentiary

gaps which result in unfairness or “clear prejudice,” remand is warranted. Id. at 935;

Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (“Remand for further

factual development of the record before the ALJ is appropriate where the record

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

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

(“However, there must be a showing of prejudice before it is found that the claimant’s

right to due process has been violated to such a degree that the case must be remanded

to the [Commissioner] for further development of the record.”) (citation omitted).

Here, Plaintiff failed to show any unfairness or prejudice warranting remand for

failure to properly develop the record. During the administrative hearing, Plaintiff

indicated that the VA was the only place she had gone for treatment (Tr. 38). In the

same discussion, the ALJ asked Plaintiff’s representative, who also represented

Plaintiff in this action, whether he had any additional evidence that day (Tr. 36). In

response, he stated that he was supposed to let the ALJ know that he had been working

on getting some updated records from the VA, he had sent several requests to the VA,

and, while some records remained outstanding, he did not provide notice to the ALJ

within the requisite five business days prior to the hearing to allow consideration of

such records at the hearing (Tr. 36). See 20 C.F.R. §§ 404.935(a), 416.1435(a). Later

in the hearing, he indicated that he was also handling a VA case for Plaintiff and had

“access to the VA files, so what I can do is get you the VA records that are missing”

and then stated that “if it comes in[,] we’ll get that to you” (Tr. 41). Given the

representations made during the administrative hearing, the ALJ afforded Plaintiff the

opportunity to supplement the record following the hearing, and Plaintiff did so (Tr.

375-98). The ALJ also referred Plaintiff to the two consultative examinations after the

hearing to assist in his determination of whether Plaintiff was disabled. Neither of the

consultative examiners stated that Plaintiff experienced an onset of disability prior to

January 1, 2020 (Tr. 399-418).

The ALJ therefore took great care in developing a full and fair record and

provided Plaintiff with ample opportunity to demonstrate a disability both before and

after January 1, 2020. The ALJ did not err in concluding that Plaintiff’s disability

onset began on January 1, 2020 and that the evidence of record did not support a

finding that Plaintiff’s impairments were severe prior to that date. Substantial evidence

supports the ALJ’s findings in that regard.

B. Sentence Six Remand

Plaintiff next argues that the matter should be remanded back to the

Commissioner under sentence six of 42 U.S.C. § 405(g) for consideration of new,

noncumulative, material evidence. Specifically, Plaintiff points to a November 2021

VA ratings decision (Doc. 22, Ex. A) and a December 2016 VA Compensation and

Pension (C&P) examination note related to Plaintiff’s application for veteran disability

benefits (Doc. 22, Ex. B) that did not appear in the record at the administrative level,

and thus neither the ALJ nor the Appeals Council considered such evidence. Plaintiff

acknowledges that, under the new regulations, the Commissioner need not consider

the decision of the VA in evaluating a claimant’s impairments but must consider the

supporting evidence underlying the VA’s decision (Doc. 22, at 18). See 20 C.F.R. §§

404.1504, 416.904. According to Plaintiff, however, despite the Commissioner

purportedly obtaining all of her VA records from January 1, 2013, through May 3,

2018, neither of the identified documents were included in the medical records

provided by the VA. While Plaintiff concedes that she bears the burden to establish

entitlement to disability, including providing copies of all medical evidence, she

contends that, where the Commissioner implies that all records were obtained from

the VA, and “this sister federal agency failed to provide copies of all of its records,

equity and justice dictate that if there is material evidence that was not part of the

claims file at the time of the [ALJ’s] decision, [] Plaintiff should be allowed to submit

this evidence to the Federal court” (Doc. 22, at 19).

When reviewing final agency decisions on Social Security benefits, the exclusive

methods by which district courts may remand to the Commissioner of Social Security

are set forth in sentence four and sentence six of 42 U.S.C. § 405(g). Shalala v. Schaefer,

509 U.S. 292, 296 (1993). Sentence six provides:

The court may, on motion of the Commissioner of Social Security made

for good cause shown before the Commissioner files the Commissioner's

answer, remand the case to the Commissioner of Social Security for

further action by the Commissioner of Social Security, and it may at any

time order additional evidence to be taken before the Commissioner of

Social Security, but only upon a showing that there is new evidence

which is material and that there is good cause for the failure to

incorporate such evidence into the record in a prior proceeding ….

42 U.S.C. § 405(g). Sentence six constitutes the only way in which a district court may

remand a case to the Commissioner for consideration of new evidence not presented

to the Commissioner at any stage of the administrative process and requiring further

review. See Ingram, 496 F.3d at 1267-68; see also Jones v. Comm’r of Soc. Sec. Admin.,

Miami S. Region, 497 F. App’x 888, 891 (11th Cir. 2012). To establish a basis for

remand under sentence six, therefore, a claimant must demonstrate that (1) there is

new, noncumulative evidence; (2) the evidence is “material,” meaning relevant and

probative such that a reasonable possibility exists that it would change the

administrative result; and (3) good cause exists for the failure to submit the evidence

at the administrative level. Hunter v. Soc. Sec. Admin., 808 F.3d 818, 821 (11th Cir.

2015) (citation omitted).

As discussed above, during the administrative hearing, Plaintiff indicated that

she only received treatment from the VA (Tr. 38), and Plaintiff’s representative stated

that he was also handling a VA case for Plaintiff and had “access to the VA files, so

what I can do is get you the VA records that are missing” and then stated that “if it

comes in[,] we’ll get that to you” (Tr. 41). Plaintiff’s counsel then provided additional

records from the VA the day after the conclusion of the administrative hearing (Tr.

375-98). Neither in the more than six months between the conclusion of the

administrative hearing and the ALJ’s decision nor in the five months between the

ALJ’s decision and the denial of review by the Appeals Council did Plaintiff provide

any further records for consideration at the administrative level or notify the ALJ or

Appeals Council of any missing records. Plaintiff now asks this Court to consider the

November 2021 VA ratings decision (Doc. 22, Ex. A) and the December 2016 C&P

examination note (Doc. 22, Ex. B), arguing that both provide support for remand

under sentence six. As neither piece of evidence is material, however, the additional

evidence does not warrant remand.

Initially, the VA issued its ratings decision in November 2021, a year and a half

after the ALJ’s decision and a year after the Appeals Council’s denial of review (Doc

22, Ex. A).3 The VA assigned a 70% disability rating, effective January 23, 2015, for

service connection for other specified trauma and stressor related disorder (claimed as

PTSD), based on Plaintiff’s anxiety, depressed mood, difficulty in adapting to a work-

like setting, difficulty in adapting to stressful circumstances, difficulty in adapting to

work, difficulty in establishing and maintaining effective work and social relationships,

disturbances of motivation and mood, forgetting directions, forgetting names,

forgetting recent events, mild memory loss, occupational and social impairment with

reduced reliability and productivity, suicidal ideation, and suspiciousness. The VA

indicated that it considered Plaintiff’s VA treatment records from January 19, 2016, to

January 18, 2017, along with several other pieces of evidence, in making its disability

rating decision.

Even though the VA determined that Plaintiff experienced a 70% disability

rating, the disability ratings decision is not material for purposes of determining

whether Plaintiff experienced a disability in this context. As Plaintiff recognizes,

under the new regulations, the ALJ need not provide any analysis about a VA

3 Since the VA disability ratings decision did not issue until after review by the ALJ and the

Appeals Council, the evidence was new and noncumulative and good cause existed for the

failure to submit it at the administrative level.

disability or benefits decision but will consider all of the supporting evidence

underlying the VA’s decision to the extent that such evidence is in the record for claims

filed on or after March 27, 2017.4 See 20 C.F.R. §§ 404.1504, 416.904. The regulations

indicate that, because a decision by any other governmental agency or a

nongovernmental entity about whether a claimant is disabled, blind, employable, or

entitled to benefits is based on its rules, such decision does not bind the SSA and is not

the SSA’s decision about whether a claimant is disabled or blind under the SSA’s rules.

20 C.F.R. §§ 404.1504, 416.904. Accordingly, for any claims filed after March 27,

2017, the SSA will not provide any analysis in its determination or decision about a

decision made by any other governmental agency, specifically including the VA,

regarding whether a claimant is disabled, blind, employable, or entitled to any benefits.

20 C.F.R. §§ 404.1504, 416.904. Since the ALJ discussed the underlying VA records

in the SSA claim file, along with the other evidence, and since he would not need to

provide any analysis regarding the VA disability determination, the subsequently

issued VA ratings decision is not material, since there is no reasonable possibility it

would change the administrative result, and consequently does not warrant remand.

Turning next to the C&P examination note, Plaintiff argues, in a conclusory

statement, that she did not know the C&P examination note existed at the time of the

ALJ’s decision, that good cause existed for her failure to submit it to the ALJ, and that

the Court should consider it (Doc. 22, at 19). Plaintiff’s argument regarding good

4 As Plaintiff submitted her applications for benefits on May 3, 2018 (Tr. 167-70, 171-76),

the new regulations apply.

cause for her failure to submit the C&P examination note lacks merit. Namely,

Plaintiff attended the C&P examination in December 2016, Plaintiff’s representative

reviewed the evidence of record prior to the administrative hearing, Plaintiff’s

representative received permission to submit additional evidence to the ALJ following

the administrative hearing, and Plaintiff’s representative produced additional evidence

after the hearing and later received an opportunity to present any issues or additional

evidence to the Appeals Council upon review of the ALJ’s decision. Further, Plaintiff

offers no explanation or elaboration as to how, given that backdrop, she was unaware

of the existence of the C&P examination note. Based on the foregoing, Plaintiff cannot

establish good cause for her failure to submit the C&P examination note

Even if she could, the C&P examination note would not have changed the

administrative result, as it echoed similar findings made contemporaneously during

her other VA appointments. Although she presented as agitated when discussing her

past, anxious, and tearful at times, she was fully oriented with normal speech rate and

tone, normal thought content and progression, no suicidal or homicidal ideations,

normal attention and concentration, a good fund of knowledge, good language, good

insight and judgment, average intelligence, and normal abstract reasoning (Doc. 22,

Ex. B, at 10-11). Plaintiff denied any significant problems with activities of daily living

(Doc. 22, Ex. B, at 11). While she endorsed symptoms associated with depression and

anxiety, including withdrawal, isolation, depressed mood, low energy, passive suicidal

ideation without plan or intent, crying spells, worthlessness, nervousness, restlessness,

fatigue, excessive worrying, trouble making decisions, and irritability, Plaintiff

indicated that the severity of her symptoms only registered as moderate (Doc. 22, Ex.

B, at 11-12). Despite her physical and mental impairments, the examiner indicated

that Plaintiff could manage her own financial affairs (Doc. 22, Ex. B, at 12). Regarding

her employability, the examiner opined that Plaintiff’s ability to understand and follow

instructions was considered not impaired; ability to retain instructions as well as

sustain concentration to perform simple tasks was considered not impaired; ability to

sustain concentration to task and persistence and pace was considered mildly

impaired; ability to respond appropriately to coworkers, supervisors, or the general

public was considered mildly impaired; and ability to respond appropriately to changes

in the work setting was considered mildly impaired (Doc. 22, Ex. B, at 14). The

examiner concluded that Plaintiff’s mental condition would not preclude occupational

functioning in a sedentary, structured, solitary work environment that accommodated

physical limitations (Doc. 22, Ex. B, at 14).

Nothing in the C&P examination note conflicts or is inconsistent with the ALJ’s

finding that Plaintiff did not have a severe impairment prior to January 1, 2020.

Rather, the C&P examination note confirms that, though Plaintiff was diagnosed with

mental and physical impairments prior to January 1, 2020, those impairments, either

singly or in combination, did not preclude Plaintiff from performing work activities.

As a result, consideration of the C&P examination note would not change the

administrative result, meaning it is not material. Based on the foregoing, Plaintiff

failed to establish a basis for remand under sentence six.

IV. — Conclusion

For the reasons stated herein, the ALJ applied the correct legal standards, the

ALJ’s decision is supported by substantial evidence, and remand is not warranted

under sentence six. Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is affirmed.

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

Commissioner and close the case.

DONE AND ORDERED in Tampa, Florida, on this 26th day of September,

2022.

MARK A. PIZZO

UNITED STATES MAGISTRATE JUDGE

cc: Counsel of Record

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