The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TIMOTHY BROWN, )
)
Plaintiff )
)
vs. ) Case No. 4:19-CV-1236-AKK
)
COMMISSIONER, SOCIAL SECURITY )
ADMINISTRATION, )
)
Defendant )
MEMORANDUM OPINION
Timothy Brown brings this action pursuant to 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). For the reasons explained below, the court finds that the
Administrative Law Judge (“ALJ”) applied the correct legal standards and that the
ALJ’s decision, which has become the final decision by the Commissioner, is
supported by substantial evidence. Therefore, the court will affirm the decision
denying benefits.
I.
Brown worked for more than thirty years before filing applications for
disability insurance benefits and supplemental security income, alleging that he
suffered from a disability beginning October 5, 2016, due to severe diabetes,
peripheral neuropathy, and arthritis. R. 21, 37, 153. The SSA denied Brown’s
applications, and he requested a formal hearing. R. 21, 90. After the hearing, an ALJ
issued a decision finding that Brown was not disabled. R. 21-30. The Appeals
Council denied Brown’s request for review and summarily affirmed, rendering the
ALJ’s decision the final decision of the Commissioner. R. 1-6. Having exhausted his
administrative remedies, Brown filed this action pursuant to 42 U.S.C. §§ 1383(c)(3)
and 405(g).
II.
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal
standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g) and 1383(c)
mandate that the Commissioner’s “factual findings are conclusive if supported by
‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The district court may not reconsider the facts, reevaluate the evidence, or substitute
its judgment for that of the Commissioner; instead, it must review the final decision
as a whole and determine if the decision is “‘reasonable and supported by substantial
evidence.’” Id. (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance
of evidence; “‘[i]t is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.’” Martin, 894 F.2d at 1529 (quoting Bloodsworth,
703 F.2d at 1239). If supported by substantial evidence, the court must affirm the
Commissioner’s factual findings even if the evidence preponderates against those
findings. See id. While judicial review of the ALJ’s findings is limited in scope, it
“does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
In contrast to the deferential review accorded the Commissioner’s factual
findings, “conclusions of law, including applicable review standards, are not
presumed valid” and are subject to de novo review. Martin, 894 F.2d at 1529. The
Commissioner’s failure to “apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal principles
have been followed” requires reversal. Id.
III.
To qualify for disability benefits, a claimant must show 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(1). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the ALJ must determine in sequence:
(1) whether the claimant is currently unemployed;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals one listed by the Secretary;
(4) whether the claimant is unable to perform his or her past work; and
(5) whether the claimant is unable to perform any work in the national
economy.
See McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. (citing 20 C.F.R. §
416.920(a)-(f)). “Once [a] finding is made that a claimant cannot return to prior work
the burden of proof shifts to the Secretary to show other work the claimant can do.”
Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). However, the claimant
ultimately bears the burden of proving that he is disabled, and, “consequently he is
responsible for producing evidence in support of his claim.” See, e.g., Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20 C.F.R. § 416.945(a), (c)).
IV.
In performing the five-step analysis, the ALJ first determined that Brown had
“not engaged in substantial gainful activity since October 5, 2016, the alleged onset
date . . . .” R. 23. Accordingly, the ALJ proceeded to Step Two, finding that Brown
had the following severe impairments: diabetes mellitus and peripheral neuropathy.
R. 23. At Step Three, the ALJ found that none of Brown’s impairments, considered
singly or in combination, met or “medically equal[ed] the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . .” R. 25. The ALJ then
determined Brown’s residual functional capacity (“RFC”), finding that, based on all
of Brown’s impairments, Brown could:
perform light work as defined in 20 CFR 4040.1567(b) except [Brown]
can frequently, handle, finger and feel. [Brown] can frequently climb
ramp and stairs, but never climb ladders, ropes or scaffolds. [Brown]
must avoid even concentrated exposure to hazards such as machinery
and unprotected heights.
R. 26. Proceeding to Step Four, and with the aid of a Vocational Expert (VE), the
ALJ determined that Brown could not return to his past relevant work. R. 28.
However, the ALJ concluded that Brown has transferable skills from his past work.
R. 29. And at Step Five, the ALJ found that, based on Brown’s age, education, work
experience, transferable skills, and the VE’s testimony, other jobs exist in significant
numbers in the national economy that Brown can perform. R. 29. Thus, the ALJ
concluded that Brown was not disabled from the alleged onset date through the date
of her decision. R. 30.
V.
On appeal, Brown argues that (1) the ALJ failed to properly apply the pain
standard, (2) the Appeals Council failed to consider new, material, and
chronologically relevant evidence, and (3) the ALJ’s decision is not based on
substantial evidence. Doc. 9.1 The court addresses each of these contentions in turn.
A.
Brown contends that the ALJ erred by failing to properly apply the pain
standard when discounting Brown’s subjective complaints of pain. Doc. 9 at 2-6.
When, as here, the plaintiff alleges disability because of pain, he must present
“(1) evidence of an underlying medical condition and either (2) objective medical
evidence that confirms the severity of the alleged pain arising from that condition or
(3) that the objectively determined medical condition is of such a severity that it can
be reasonably expected to give rise to the alleged pain.” See
42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529; Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991) (citation omitted). Thus, a plaintiff’s “subjective testimony
supported by medical evidence that satisfies the standard is itself sufficient to
support a finding of disability.” Id. (citations omitted). However, an ALJ may
1 Initially, Brown also argued that the ALJ should have found Brown disabled pursuant to
Grid Rule 201.14, doc. 7 at 1, 12, but Brown withdrew that argument, doc. 9 at 8.
properly discredit a claimant’s subjective testimony if the ALJ clearly articulates her
reason for doing so and substantial evidence supports the ALJ’s finding. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553,
1561-62 (11th Cir. 1995).
At the administrative hearing, Brown testified that he can no longer work due
primarily to pain in his feet from peripheral neuropathy. See R. 41-43. In particular,
Brown testified that he had pain in his feet, hands, and back; he could no longer wear
steel-toed boots; he could not stand for more than ten to fifteen minutes at a time, or
sit for more than thirty minutes without needing to stand; he could not climb up and
down a ladder due to numbness in his feet; he had difficulty with basic tasks,
including walking up or down three steps to his porch; and he could not lift more
than ten pounds due to pain. R. 42-43, 46, 48-50, 60. Brown also testified that he
suffers from fatigue and at times requires naps due to issues with his diabetes and
blood sugar. R. 44-45, 63. Brown also reported that he had trouble sleeping due to
pain in his legs. R. 193. After considering these subjective claims of pain, the ALJ
found that while Brown’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms [], [Brown’s] statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence . . . .” R. 27.
Brown disagrees and contends that the ALJ improperly applied the pain
standard in reaching her finding. But, Brown fails to explain how the ALJ erred or
point to any record that the ALJ mischaracterized or did not consider. See doc. 7 at
10-12. Thus, Brown “gives neither the Commissioner nor the court any guidance
about [his] argument aside from the fact that [he] asserts the existence of an error.”
Morgan v. Soc. Sec. Admin., Comm’r, No. 4:17-cv-01148-ACA, 2019 WL 1466259,
at *3 (N.D. Ala. Apr. 3, 2019). Therefore, because “[i]ssues raised in a perfunctory
manner, without supporting arguments and citation to authorities, are generally
deemed to be waived,” N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422
(11th Cir. 1998), Brown has failed to establish reversible error.
Moreover, substantial evidence supports the ALJ’s decision to discount
Brown’s subjective testimony. As the ALJ noted, Brown’s medical records from the
relevant time period consistently show that Brown had normal gait, motor function,
range of motion, and strength. R. 27, 347, 385-86, 390, 425. The records include a
report from Dr. Biswa Battacharyya, a primary care physician, who referred Brown
for a lumbar spine AP test, or x-ray, in June 2016, and which showed normal
alignment with no significant degenerative changes and minimal anterolisthesis in
an otherwise normal study. R. 373. Similarly, in 2017, an x-ray of Brown’s hands
and lower extremities revealed normal alignment and well-preserved joints. R. 387.
In addition, at several visits in 2017, Brown reported to Dr. Mohammad Zaman, a
primary care physician, that he had some swelling in his extremities but that he had
no muscle aches, joint pain, back pain, difficulty walking, or exercise intolerance.
R. 385-86, 389, 424-25. As the ALJ noted, these medical records are inconsistent
with Brown’s testimony that he suffered from disabling pain, and they provide
substantial evidence to support the ALJ’s decision to discount Brown’s testimony.
B.
Brown argues next that the Appeals Council failed to review evidence he
submitted on appeal. Doc. 9 at 6. In general, a claimant may present new evidence
in support of his application at each stage of the administrative process. Ingram v.
Comm’r of Soc. Sec. Admin, 496 F.3d 1253, 1261 (11th Cir. 2007) (citing 20 C.F.R.
§ 404.900(b)). Thus, a claimant may present new evidence to the Appeals Council,
and the Council will review the claimant’s case if it “receives additional evidence
that is new, material, and relates to the period on or before the date of the [ALJ’s]
decision . . . .” 20 C.F.R. § 404.970(a). “Evidence is material if a reasonable
possibility exists that the evidence would change the administrative result.”
Hargress v. Soc. Sec. Admin, Comm’r, 883 F.3d 1302, 1309 (11th Cir. 2018) (citing
Washington v. Soc. Sec. Admin., 806 F.3d 1317, 1320 (11th Cir. 2015)). “[W]hen a
claimant properly presents new evidence to the Appeals Council, a reviewing court
must consider whether that new evidence renders the denial of benefits erroneous.”
Ingram, 496 F.3d at 1262.
At issue here are treatment records from Stringfellow Memorial Hospital. R.
8-11. These new records are dated January 1, 2019 and show a diagnosis of Diabetic
Ketoacidosis, but they do not indicate that Brown had that condition prior to date of
the ALJ’s decision, or that the condition caused any limitations prior to that date. R.
8-11. In other words, the records describe Brown’s condition at the time of treatment,
i.e., after the ALJ’s decision, and are not chronologically relevant. See Hargress,
883 F.3d at 1309-10. Thus, the Appeals Council properly found that the records do
not relate to the period at issue and, therefore, would not affect the ALJ’s decision.
R. 2. Simply put, the records Brown submitted do not show that the ALJ’s decision
is contrary to the weight of the evidence, and the Appeals Council did not err by
denying review. See Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 785 (11th
Cir. 2014) .
C.
Finally, Brown contends that the ALJ’s decision related to his RFC and ability
to perform light work is not based on substantial evidence. See docs. 7 at 14; 9 at 7.
To find that the claimant is not disabled, the ALJ must show that other jobs exist in
significant numbers in the national economy that the claimant can perform. See
Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002); 20 C.F.R.
§ 404.1512(b)(3). The ALJ may satisfy that burden by relying on the testimony of a
VE. Wilson, 284 F.3d at 1227 (citing Wolfe v. Chater, 86 F.3d 1072, 1077-78 (11th
Cir. 1996)). But, “[i]n order for a [VE]’s testimony to constitute substantial evidence,
the ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Id. (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)).
Here, the ALJ asked the VE whether jobs exist that an individual with
Brown’s age, education, work history, and RFC could perform, and the VE identified
numerous jobs, including assemblers, electronics workers, and mail clerks. R. 75.
Brown contends that the ALJ erred by finding he has the RFC to perform a modified
range of light work. See docs. 7; 9. However, Brown does not specify what the ALJ
failed to consider, or identify what evidence is contrary to the ALJ’s determination
of Brown’s RFC. See id. Thus, “[b]y failing to specify which aspect of the ALJ’s
decision was incorrect or unsupported by substantial evidence, [Brown] has
abandoned any challenge to the factual accuracy of the ALJ’s conclusion.” Jackson
v. Soc. Sec. Admin., Comm’r, 779 F. App’x 681, 684 (11th Cir. 2019) (citing
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014)).
Moreover, substantial evidence supports the ALJ’s determination of Brown’s
RFC. First, in December 2016, Dr. Thomas G. Amason, an agency medical
consultant, opined that, based on a review of Brown’s medical records, Brown had
an RFC to perform a range of medium work. R. 85-86. The ALJ gave Dr. Amason’s
opinion only partial weight because she found that evidence at the hearing indicated
that Brown was more limited. R. 28. In addition, as discussed above, Brown’s
medical records show that he consistently had normal gait, motor function, and
strength during the relevant time, and that Brown denied joint pain, back pain, and
difficulty walking. See pp. 8-9, supra. Contrary to Brown’s contentions, this
evidence supports the ALJ’s RFC determination.
VI.
It is evident that Brown believes the evidence supports a contrary finding and
that he disagrees with the ALJ’s ruling on the merits. However, the ALJ’s decision
reveals that “[s]he did consider all of the evidence and found that it did not support
the level of disability [Brown] claimed.” Freeman v. Barnhart, 220 Fed. Appx. 957,
960 (11th Cir. 2007). Therefore, the court concludes that the ALJ’s determination
that Brown 1s not disabled is supported by substantial evidence, and the ALJ applied
proper legal standards in reaching her decision. The Commissioner’s final decision
is due to be affirmed. A separate order will be entered.
DONE the 25th day of August, 2020.
— Apap bh tee
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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