Washington v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

JACQUELINE SMITH }

WASHINGTON, }

}

Plaintiff, }

} Case No.: 4:19-cv-00462-MHH

v. }

}

ANDREW SAUL, }

Commissioner of the }

Social Security Administration,1 }

}

Defendant.

MEMORANDUM OPINION

Pursuant to 42 U.S.C. § 405(g), plaintiff Jacqueline Smith Washington seeks

judicial review of a final adverse decision of the Commissioner of Social Security.

The Commissioner denied her claims for a period of disability and disability

insurance benefits and supplemental security income. After careful review, the

Court affirms the Commissioner’s decision.

1 The Court asks the Clerk to please substitute Andrew Saul for Nancy A. Berryhill as the defendant

pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 25(d) (When a

public officer ceases holding office, that “officer’s successor is automatically substituted as a party.”);

see also 42 U.S.C. § 405(g) (“Any action instituted in accordance with this subsection shall survive

notwithstanding any change in the person occupying the office of Commissioner of Social Security or

any vacancy in such office.”).

I. PROCEDURAL HISTORY

Ms. Washington applied for a period of disability and disability insurance

benefits and supplemental security income. (Doc. 4-3, p. 16). She alleges that her

disability began on October 6, 2015. (Doc. 4-3, p. 16). The Commissioner initially

denied Ms. Washington’s claims. (Doc. 4-3, p. 16).

Ms. Washington requested a hearing before an Administrative Law Judge

(“ALJ”). (Doc. 4-3, p. 16). After the hearing, the ALJ issued an unfavorable

decision. (Doc. 4-3, pp. 16-26). The Appeals Council declined Ms. Washington’s

request for review, making the Commissioner’s decision final for this Court’s

judicial review. (Doc. 4-3, p. 2). See 42 U.S.C. § 405(g).

II. STANDARD OF REVIEW

The scope of review in this matter is limited. “When, as in this case, the ALJ

denies benefits and the Appeals Council denies review,” the Court “review[s] the

ALJ’s ‘factual findings with deference’ and his ‘legal conclusions with close

scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.

2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).

The Court must determine whether there is substantial evidence in the record

to support the ALJ’s findings. “Substantial evidence is more than a scintilla and is

such relevant evidence as a reasonable person would accept as adequate to support

a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004). In making this evaluation, the Court may not “decide the facts anew, reweigh

the evidence,” or substitute its judgment for that of the ALJ. Winschel v. Comm’r

of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and

citation omitted). If the ALJ’s decision is supported by substantial evidence, then

the Court “must affirm even if the evidence preponderates against the

Commissioner’s findings.” Costigan v. Comm’r, Soc. Sec. Admin., 603 Fed. Appx.

783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).

With respect to the ALJ’s legal conclusions, the Court must determine

whether the ALJ applied the correct legal standards. If the Court finds an error in

the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide

sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,

then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d

1143, 1145-46 (11th Cir. 1991).

III. SUMMARY OF THE ALJ’S DECISION

To determine whether a claimant has proven that she is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:

(1) whether the claimant is currently engaged in substantial gainful

activity; (2) whether the claimant has a severe impairment or

combination of impairments; (3) whether the impairment meets or

equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a residual functional capacity (“RFC”)

assessment, whether the claimant can perform any of his or her past

relevant work despite the impairment; and (5) whether there are

significant numbers of jobs in the national economy that the claimant

can perform given the claimant’s RFC, age, education, and work

experience.

Winschel, 631 F.3d at 1178.

In this case, the ALJ found that Ms. Washington has not engaged in substantial

gainful activity since October 6, 2015, the alleged onset date. (Doc. 4-3, p. 18).

The ALJ determined that Ms. Washington suffers from the following severe

impairments: degenerative disc disease and left shoulder bursitis. (Doc. 4-3, p. 18).

The ALJ determined that Ms. Washington suffers from the following non-severe

impairments: hypertension and affective disorder. (Doc. 4-3, p. 19). Based on a

review of the medical evidence, the ALJ concluded that Ms. Washington does not

have an impairment or a combination of impairments that meets or medically equals

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

(Doc. 4-3, p. 19).

In light of Ms. Washington’s impairments, the ALJ evaluated Ms.

Washington’s residual functional capacity. The ALJ determined that Ms.

Washington had the RFC to perform:

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)

except she could occasionally climb ramps and stairs, stoop and crouch,

but never ladders, ropes or scaffolds; nor should she kneel or crawl; she

could only occasionally reach overhead with her bilateral upper

extremities; she could frequently use her left upper extremity for

handling and fingering; she can have only occasional exposure to

vibration as well as extremes of cold; no exposure to hazards such as

unprotected heights and dangerous machinery; and would be capable

of performing simple, routine tasks.

(Doc. 4-3, p. 22). “Sedentary work involves lifting no more than ten pounds at a

time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools.” 20 C.F.R. §§ 404.1567(a), 416.967(a). “Although a sedentary job is defined

as one which involves sitting, a certain amount of walking and standing is often

necessary in carrying out job duties.” 20 C.F.R. §§ 404.1567(a), 416.967(a). “Jobs

are sedentary if walking and standing are required occasionally and other sedentary

criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).

Based on this RFC, the ALJ concluded that Ms. Washington could not

perform her past relevant work as a pharmacy technician or material handler. (Doc.

4-3, p. 24). Ms. Washington was 46 years old when she applied for disability

benefits. A person who is that age “is defined as a younger individual age 45-49, on

the alleged disability onset date (20 CFR 404.1563 and 416.963).” (Doc. 4-3, p. 24).

Relying on testimony from a vocational expert, the ALJ found that other jobs existed

in the national economy that Ms. Washington could have performed, including

bench and table worker, assembler, and surveillance system monitor. (Doc. 4-3, p.

25). Accordingly, the ALJ determined that Ms. Washington was not under a

disability within the meaning of the Social Security Act at any time from October 5,

2015, the alleged onset date, through May 15, 2018, the date of the ALJ’s decision.

(Doc. 4-3, p. 25).

IV. ANALYSIS

Ms. Washington contends that she is entitled to relief from the ALJ’s decision

because the ALJ used an improper pain standard and failed to consider all of her

severe impairments, and Ms. Washington also argues that the denial is not supported

by substantial evidence. (Doc. 6, p. 1). The Court begins its analysis of these issues

with a review of the ALJ’s application of the pain standard. Then the Court considers

whether the ALJ evaluated all severe impairments and whether there is substantial

evidence to support the denial of benefits.

A. Pain Standard

The Eleventh Circuit pain standard “applies when a disability claimant

attempts to establish disability through his own testimony of pain or other subjective

symptoms.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); see also Coley

v. Comm’r, Soc. Sec. Admin., 771 Fed. Appx. 913, 918 (11th Cir. 2019). When

relying upon subjective symptoms to establish disability, “the claimant must satisfy

two parts of a three-part test showing: (1) evidence of an underlying medical

condition; and (2) either (a) objective medical evidence confirming the severity of

the alleged [symptoms]; or (b) that the objectively determined medical condition can

reasonably be expected to give rise to the claimed [symptoms].” Wilson v. Barnhart,

284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt, 921 F.2d at 1223); Chatham v.

Comm’r, Soc. Sec. Admin., 746 Fed. Appx. 864, 868 (11th Cir. 2019) (citing Wilson).

If the ALJ does not apply the three-part standard properly, then reversal is

appropriate. McLain v. Comm’r, Soc. Sec. Admin., 676 Fed. Appx. 935, 937 (11th

Cir. 2017) (citing Holt).

A claimant’s credible testimony coupled with medical evidence of an

impairing condition “is itself sufficient to support a finding of disability.” Holt, 921

F.2d at 1223; see Gombash v. Comm’r, Soc. Sec. Admin., 566 Fed. Appx. 857, 859

(11th Cir. 2014) (“A claimant may establish that he has a disability ‘through his own

testimony of pain or other subjective symptoms.’”) (quoting Dyer v. Barnhart, 395

F.3d 1206, 1210 (11th Cir. 2005)). If an ALJ rejects a claimant’s subjective

testimony, then the ALJ “must articulate explicit and adequate reasons for doing so.”

Wilson, 284 F.3d at 1225; Coley, 771 Fed. Appx. at 918. As a matter of law, the

Secretary must accept a claimant’s testimony if the ALJ inadequately or improperly

discredits the testimony. Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988);

Kalishek v. Comm’r, Soc. Sec. Admin., 470 Fed. Appx. 868, 871 (11th Cir. 2012)

(citing Cannon); see Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987) (“It is

established in this circuit if the Secretary fails to articulate reasons for refusing to

credit a claimant’s subjective pain testimony, then the Secretary, as a matter of law,

has accepted that testimony as true.”).

When credibility is at issue, the provisions of Social Security Regulation 16-

3p apply. SSR 16-3p provides:

[W]e recognize that some individuals may experience symptoms

differently and may be limited by symptoms to a greater or lesser

extent than other individuals with the same medical impairments,

the same objective medical evidence, and the same non-medical

evidence. In considering the intensity, persistence, and limiting

effects of an individual’s symptoms, we examine the entire case

record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of

symptoms; statements and other information provided by medical

sources and other persons; and any other relevant evidence in the

individual’s case record.

SSR 16-3p, 2016 WL 1119029, at *4. An ALJ must explain the basis for findings

relating to a claimant’s description of symptoms:

[I]t is not sufficient . . . to make a single, conclusory statement that

“the individual’s statements about his or her symptoms have been

considered” or that “the statements about the individual’s symptoms

are (or are not) supported or consistent.” It is also not enough . . .

simply to recite the factors described in the regulations for evaluating

symptoms. The determination or decision must contain specific

reasons for the weight given to the individual’s symptoms, be

consistent with and supported by the evidence, and be clearly

articulated so the individual and any subsequent reviewer can assess

how the adjudicator evaluated the individual’s symptoms.

SSR 16-3p, 2016 WL 1119029, at *10. In evaluating a claimant’s reported

symptoms, an ALJ must consider:

(i) [the claimant’s] daily activities; (ii) [t]he location, duration,

frequency, and intensity of [the claimant’s] pain or other symptoms;

(iii) [p]recipitating and aggravating factors; (iv) [t]he type, dosage,

effectiveness, and side effects of any medication [the claimant]

take[s] or ha[s] taken to alleviate . . . pain or other symptoms; (v)

[t]reatment, other than medication, [the claimant] receive[s] or ha[s]

received for relief of . . . pain or other symptoms; (vi) [a]ny measures

[the claimant] use[s] or ha[s] used to relieve . . . pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and (vii) [o]ther factors

concerning [the claimant’s] functional limitations and restrictions due

to pain or other symptoms.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Leiter v. Comm’r, Soc. Sec. Admin.,

377 Fed. Appx. 944, 947 (11th Cir. 2010).

Ms. Washington argues that the ALJ improperly applied the pain standard by

failing to consider whether her impairments are so severe that the very nature of the

impairment could be expected to lead to her reported pain under the third prong of

the pain standard. (Doc. 6, pp. 18-20). She argues that the ALJ did not fully consider

whether Ms. Washington’s diagnoses of degenerative disc disease and shoulder

bursitis themselves could be expected to cause Ms. Washington pain and instead

only determined that the objective medical evidence does not confirm the severity

of Ms. Washington’s pain under prong two of the pain standard. (Doc. 6, pp. 18-

20).

Ms. Washington is correct; an ALJ should consider all three prongs of the pain

standard to determine whether a claimant’s pain is disabling, but an ALJ also must

consider “‘whether the intensity and persistence of the symptoms limit the

individual’s ability to perform work-related activities.’” See Hargress v. Soc. Sec.

Admin., Comm'r, 883 F.3d 1302, 1308 (11th Cir. 2018) (quoting Social Security

Ruling 16-3). The ALJ must evaluate whether the statements regarding the limiting

effects of pain are substantiated by objective medical evidence, and if they are not,

the ALJ must consider other evidence in the record to determine how the symptoms

limit the claimant’s work-related activities. See 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3).

An incomplete analysis of the pain standard by the ALJ here would be

harmless error because the evidence in the record does not support a finding that

pain would prevent Ms. Washington from performing sedentary work, and Ms.

Washington does not cite evidence to suggest that the ALJ’s determination would

have been different if the ALJ had considered the third prong of the pain standard.

Ms. Washington’s medical records indicate that she experienced pain in her

shoulders, and she complained mostly about left shoulder pain. Her physicians

provided fairly conservative treatment for her shoulder pain, prescribing some pain

medication in 2016 and 2017. Ms. Washington also received a few injections for

pain management. A few of Ms. Washington’s medical records mention

fibromyalgia, and one medical record from 2017 states, under “social history,”

“Disabled due to fibromyalgia.” (Doc. 4-11, p. 34). But that record from Southern

Cardiovascular Associates, P.C. concerns a visit for treatment of hypertension. In

the record, the treating certified nurse practitioner stated that Ms. Washington’s

chest pain might be caused by hypertension or fibromyalgia, and the CNP noted that

Ms. Washington saw a physician for treatment of her neck pain. (Doc. 4-11, pp. 33-

36). While Ms. Washington’s medical records indicate that, during the relevant time

period, she suffered from chronic left shoulder pain, the substantial evidence in the

record supports the conclusion that that pain would not prevent Ms. Washington,

who is right-handed (Doc. 4-10, p. 74), from performing sedentary work.

The ALJ properly considered and discredited Ms. Washington’s subjective

complaints of pain. The ALJ determined that while Ms. Washington’s “medically

determinable impairments could reasonably be expected to cause the alleged

symptoms,” the medical record and other evidence were not consistent with Ms.

Washington’s statements regarding the intensity, persistence, and limiting effects of

her pain. (Doc. 4-3, pp. 22-24). Substantial evidence from Ms. Washington’s

testimony and the medical record supports the ALJ’s determination that Ms.

Washington was not as limited by her pain as she asserts, and the ALJ properly

explained her reasons for rejecting statements by Ms. Washington and discussed

which evidence contradicted Ms. Washington’s pain testimony.

1. Ms. Washington’s Medical Records

Ms. Washington’s medical records confirm that she has suffered from a

history of musculoskeletal impairments throughout the disability period. On

September 18, 2015, Ms. Washington was diagnosed with significant degenerative

disk disease after undergoing a magnetic resonance imaging (MRI) procedure.

(Doc. 4-9, p. 50). Following this diagnosis, Ms. Washington had surgery to replace

her C-5-C6 disk on October 30, 2015. (Doc. 4-9, p. 75). Though initially thought

to be a successful procedure, Ms. Washington’s pain in her neck worsened after this

procedure. (Doc. 4-10, p. 6). In January of 2016, Ms. Washington underwent a

second procedure to correct hardware failure from the first surgery. (Doc. 4-10, p.

34). Ms. Washington reported to Dr. James Smith after the procedure that her neck

was improving and that she no longer had arm pain. (Doc. 4-10, pp. 43, 46, 49). Dr.

Smith remarked that he believed it would be unlikely that she would return to a

labor-intensive job, and she “would be best suited for a sedentary job,” including

teaching. (Doc. 4-10, p. 41).

In May of 2016, Ms. Washington reported having constant shoulder pain.

(Doc. 4-10, pp. 61-62). She had difficulty putting on clothes or holding items

without dropping them. (Doc. 4-10, pp. 61-62). Ms. Washington had full range of

movement of various joints, was capable of walking, and could sit on the exam table

without assistance, but Ms. Washington had limited range of movement with her left

shoulder. (Doc. 4-10, pp. 61-63). Dr. Celtin Robertson determined that Ms.

Washington had no limitation in sitting, standing, or manipulative activities except

Ms. Washington could not “reach overhead or reach forward the left upper

extremity.” (Doc. 4-10, p. 65). Dr. Smith recommended physical therapy for Ms.

Washington’s shoulder pain, but it did not improve her condition. (Doc. 4-10, pp.

76, 83-84).

The medical records also indicate that Ms. Washington had a history of benign

hypertensive heart disease since November 2013. (Docs. 4-8—4-11). Ms.

Washington’s medical records indicate that she has not suffered fainting or any other

significant limitation resulting from her hypertension. (Doc. 4-8, p. 11). A

transthoracic echocardiogram taken in October 2015 was normal. (Doc. 4-11, p. 4).

2. Ms. Washington’s Testimony

In January 2016, Ms. Washington completed a disability report and a

functional report. (Doc. 4-7, pp. 2-5, 26-33). On the disability report, Ms.

Washington noted that she suffered from disc deterioration, cervical disc

replacement and infusion, muscle spasms, high blood pressure, heart issues, and

fibrocystic disease. (Doc. 4-7, p. 14). Ms. Washington reported on her functional

report that she was experiencing “constant pain in the neck, back and shoulders.”

(Doc. 4-7, p. 26). She reported that she could brush her hair, shave her legs, and

prepare meals every day. (Doc. 4-7, pp. 27-28). Ms. Washington could manage her

own finances. (Doc. 4-7, p. 29). She reported that her illnesses affected her memory

and ability to walk such that “walking a certain distance cause [her] to become

dizzy.” (Doc. 4-7, p. 31). She also reported “numbness in her hands.” (Doc. 4-7,

p. 31).

In the hearing before the ALJ on January 23, 2018, Ms. Washington described

her surgeries in October 2015 and January 2016 as treatment for disc degeneration.

(Doc. 4-3, p. 46). Ms. Washington testified that despite these surgeries, her pain

continued, and she developed shoulder pain and had “plenty [of] injections” in her

left shoulder to help alleviate pain. (Doc. 4-3, p. 46). Ms. Washington rated her

pain without medication at “about an eight” out of ten and a “about a six” after taking

medication. (Doc. 4-3, p. 50). Ms. Washington was unable to seek pain

management because she did not have insurance. (Doc. 4-3, pp. 52-54).

Ms. Washington also testified to the limiting effects that her symptoms had

on her daily life. She stated that she would attempt to do household chores, but it

hurt her, and she had to have her grandson help her do laundry. (Doc. 4-3, p. 49).

For “most of the day,” Ms. Washington would sleep for approximately two to three

hours at a time, and she suffered drowsiness because of her medications. (Doc. 4-3,

pp. 46, 51). Ms. Washington could prepare a meal in the microwave. (Doc. 4-3, p.

46). Occasionally, she would attend church, grocery shop, drive less than a mile to

her doctor’s appointments, or ride with her daughter back to home in Mississippi.

(Doc. 4-3, pp. 47-48, 52).

3. The ALJ’s determination

The ALJ discounted Ms. Washington’s testimony concerning the limitations

she experienced because her impairments, citing specific evidence in Ms.

Washington’s medical records to discount her statements. (Doc. 4-3, pp. 22-24).

Pointing to Dr. Smith’s long treatment history of Ms. Washington’s degenerative

disc disease and shoulder pain, the ALJ noted that Ms. Washington seemed to

experience less pain following her two surgeries and that her shoulder pain resulted

in limited range of motion but did not otherwise prevent Ms. Washington from

engaging in daily activities. (Doc. 4-3, p. 23). The ALJ also discussed Dr.

Robertson’s physical examination of Ms. Washington and gave some weight to the

doctor’s finding that Ms. Washington had full range of motion except limitations in

her left shoulder movement because that finding was “generally consistent with

medical records and the claimant’s daily activities.” (Doc. 4-3, pp. 23-24). The ALJ

explained that the x-rays of Ms. Washington’s left shoulder “showed no radiographic

abnormality.” (Doc. 4-3, p. 24). These determinations are consistent with Ms.

Washington’s testimony that she could do some activity like walking for a short

distance, going grocery shopping, or tending to her personal hygiene without

assistance.

Ultimately, on this record, substantial evidence supports the ALJ’s decision

to partially discredit Ms. Washington’s statements regarding the limitations that she

attributes to pain. See Markuske v. Comm’r of Soc. Sec., 572 Fed. Appx. 762, 767

(11th Cir. 2014) (“The objective medical evidence cited by the ALJ provided

‘adequate reasons’ for her decision to partially discredit Markuske’s subjective

complaints [of back, neck, elbow, and carpal tunnel syndrome pain].”). The ALJ did

not ignore Ms. Washington’s complaints of pain; the ALJ weighed that information

in arriving at Ms. Washington’s RFC. Therefore, the ALJ did not commit error in

applying the pain standard.

B. The ALJ’s Consideration of All Severe Impairments

The ALJ properly considered all severe impairments. At the second stage of

the sequential evaluation, the ALJ must only determine whether the claimant suffers

from “any severe impairment . . . whether or not it results from a single severe

impairment or a combination of impairments that together qualify as severe.”

Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). “A severe impairment is

one that significantly limits the claimant’s ability to do basic work activities.”

Heatly v. Comm’r of Soc. Sec., 2010 WL 2331416, at *1 (11th Cir. June 11, 2010).

Here, the ALJ determined that Ms. Washington suffers from degenerative disc

disease and left shoulder bursitis. (Doc. 4-3, p. 18). As discussed in the summary

above, there is substantial evidence to support this finding. Ms. Washington alleges

that the ALJ failed to consider her impairment of rheumatoid arthritis and the effect

rheumatoid arthritis on her ability to function. (Doc. 6, pp. 20-22).

Under the Social Security Amendments Act of 1954, claimants have the

burden of showing that they have medical condition that constitutes a severe

impairment. 42 U.S.C.A. § 423 (“An individual shall not be considered to be under

a disability unless he furnishes such medical and other evidence of the existence

thereof as the Commissioner of Social Security may require.”). Claimants may show

such an impairment through “medical evidence consisting of signs, symptoms, and

laboratory findings.” 20 C.F.R. § 404.1508.

In support of her argument, Ms. Washington cites several records from the

Etowah Free Community Clinic that summarily state that Ms. Washington has

rheumatoid arthritis. (Doc. 4-3, pp. 34, 37-38). These records contain no details

concerning the diagnosis, and the records indicate only that Ms. Washington

generally suffers from pain.2 The records do not indicate that arthritis significantly

limits Ms. Washington’s ability to perform work-related activities. Ms. Washington

2 Several medical records suggest that Ms. Washington’s chronic pain is a result of fibromyalgia

instead of rheumatoid arthritis. (Doc. 4-10, p. 83; Doc. 4-11, pp. 10, 13, 20). The ALJ discussed

her findings that Ms. Washington’s alleged fibromyalgia was not “a medically determinable

impairment.” (Doc. 4-3, p. 20). Using Social Security Ruling 12-2p section II (A) based on the

1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia, the ALJ

determined that Ms. Washington’s medical records did not have enough evidence supporting a

diagnosis of fibromyalgia. (Doc. 4-3, p. 21). The ALJ noted that Ms. Washington’s medical

records demonstrate a history of chronic pain, but there was no evidence of pain in all quadrants

of the body or at least 11 positive tender points, as required by the diagnosing criteria. (Doc. 4-3,

p. 21). Therefore, the ALJ determined that Ms. Washington’s fibromyalgia was not severe under

Social Security guidelines, and there is no evidence before the Court to contradict that finding.

has therefore not carried her burden of proving that her diagnosis of rheumatoid

arthritis should have been considered a severe impairment.

Regardless of how the ALJ weighed Ms. Washington’s rheumatoid arthritis

at Step Two of the framework, the ALJ properly considered all of Ms. Washington’s

conditions irrespective of severity when determining her RFC. (Doc. 4-3, pp. 17-

18). The ALJ specifically said that she had “considered all symptoms and the extent

to which these symptoms can be reasonably accepted as consistent with the objective

medical evidence and other evidence” as part of her RFC determination. (Doc. 4-3,

p. 22). The Court is satisfied that the ALJ considered the symptoms consistent with

Ms. Washington’s rheumatoid arthritis in coming to her conclusion that Ms.

Washington can perform sedentary work.

C. Substantial Evidence

Ms. Washington argues that the Appeals Council erred in failing to consider

additional evidence she had submitted. (Doc. 6, p. 22). In addition, Ms. Washington

argues that ALJ erred in relying on the Vocational Expert’s (“VE”) testimony

because the testimony was “not based on a correct or full statement of the claimant’s

limitations or impairments.” (Doc. 6, pp. 23-25). The Court is not persuaded by

either argument.

1. The Appeals Council Was Not Required to Consider New Evidence

At each stage of the administrative process, a claimant frequently is allowed

to introduce new evidence to support her claim. See 20 C.F.R. § 404.900(b); Ingram

v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007). The Appeals Council

“must consider new, material, and chronologically relevant evidence and must

review the case if ‘the administrative law judge’s action, findings, or conclusion is

contrary to the weight of the evidence currently of record.’” Ingram, 496 F. 3d at

1261 (quoting 20 C.F.R. § 404.970(b)). If the Appeals Council erroneously fails to

consider new evidence, a district court must remand. Washington v. Soc. Sec.

Admin., Comm'r, 806 F.3d 1317, 1321 (11th Cir. 2015).

Evidence must be both material and timely to be considered by the Appeals

Council. “Evidence is chronologically relevant if it ‘relates to the period on or before

the date’ of the ALJ's decision.” Banks v. Comm'r, Soc. Sec. Admin., 686 Fed. Appx.

706, 709 (11th Cir. 2017) (quoting 20 C.F.R. § 416.1476(b)(1)). “Even records that

postdate the ALJ’s decision may be chronologically relevant when the records assess

conditions existing prior to the decision, the physician evaluated medical records

from before the ALJ’s decision, and there is no evidence of deterioration.” Blackwell

v. Saul, 2020 WL 5203992, *5 (N.D. Ala. Sept. 1, 2020) (citing Washington, 806

F.3d at 1322); see also Ring v. Soc. Sec. Admin., Comm'r, 728 Fed. Appx. 966, 968

(11th Cir. 2018). Additionally, evidence is “material, and thus warrants a remand,

if there is a reasonable possibility that the new evidence would change the

administrative outcome.” Flowers v. Comm'r of Soc. Sec., 441 Fed. Appx. 735, 745

(11th Cir. 2011). If additional evidence is either immaterial or untimely, the Appeals

Council may deny review and is not required to explain its decision to deny. Mitchell

v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014).

Ms. Washington submitted to the Appeals Council six medical records from

the Etowah Free Community Clinic regarding office visits from February 2018

through August 2018. (Doc. 4-3, pp. 33-38). These records indicate that Ms.

Washington experienced “fatigue” and “lots of pain,” including “neck pain, shoulder

pain, [and] pain in knees.” (Doc. 4-3, pp. 33-38). The records reflect diagnoses of

rheumatoid arthritis and fibromyalgia. (Doc. 4-3, pp. 33-38). After accepting this

new evidence, the Appeals Council denied review because that “evidence does not

show a reasonable probability that it would change the outcome of the decision.”

(Doc. 4-3, p. 3).

The records relating to Ms. Washington’s three office visits in February,

March, and May of 2018 are timely because they predate the ALJ’s decision. (Doc.

4-3, pp. 33, 36-38). The remaining records from office visits in June, July, and

August postdate the ALJ’s decision, but the records do appear to suggest that the

physician assessed the same conditions discussed in the earlier records.

Still, these records are not material because there is not a reasonable

probability that this evidence would change the ALJ’s determination. These records

indicate that Ms. Washington experienced pain, which already was established by

other evidence in the record considered by the ALJ. (Doc. 4-7, p. 26; Doc. 4-10,

p.6). Other medical records already considered by the ALJ reflected Ms.

Washington’s fibromyalgia diagnosis. (Doc. 4-10, p. 83; Doc. 4-11, pp. 10, 13, 20).

The new evidence submitted by Ms. Washington is new only to the extent that there

is an assessment of rheumatoid arthritis. (Doc. 4-3, pp. 33-38). As discussed in the

previous section, the ALJ considered this assessment in determining Ms.

Washington’s RFC. This new evidence would not reasonably alter the ALJ’s

decision because the evidence is mostly duplicative of other medical records

submitted to the ALJ. The Appeals Council did not err in denying review and was

therefore not required to explain its rationale for denying review beyond explaining

that the evidence would not have otherwise reversed the ALJ’s determination.

2. Hypothetical Questioning to Vocational Expert

At the fifth stage of the disability framework, the ALJ bears the burden of

demonstrating that sufficient jobs exist in the national economy that a plaintiff can

perform, given her residual functional capacity. Jones v. Apfel, 190 F.3d 1224, 1229-

30 (11th Cir. 1999). The ALJ can satisfy this burden by posing hypothetical

questions that include the claimant’s severe impairments to a vocational expert

(“VE”). See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (holding that

an ALJ may omit non-severe impairments in her hypothetical questions to the VE).

The ALJ need not include in the hypothetical question any elements or limitations

that are not supported by the claimant’s record. See Crawford v. Comm'r of Soc.

Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (“[T]he ALJ was not required to include

findings in the hypothetical that the ALJ had properly rejected as unsupported.”).

During the hearing, the ALJ asked the vocational expert to consider:

a hypothetical individual of the Claimant’s age, education, and past

work history who would be capable of work at the sedentary exertional

level with the following limitations. She could occasionally climb

ramps and stairs, stoop and crouch. Never ladders, ropes, or scaffolds.

Nor could she kneel or crawl. She can only occasionally reach overhead

with her bilateral upper extremities. . . She could frequently use her left

upper extremity for handling and fingering. She can only have

occasional exposure to vibration as well as extremes of cold. No

exposure to hazards such as unprotected heights and dangerous

machinery. Can that individual perform any of the past jobs you’ve

described?

(Doc. 4-3, p. 59).

The VE determined that the individual would not be able to return to work as

a pharmacy technician or material handler—Ms. Washington’s two previous jobs—

but would be capable of performing sedentary, unskilled work as a bench and table

worker, assembler, or surveillance system monitor. (Doc. 4-3, pp. 59-60).

The ALJ followed up, asking:

With respect to the reaching requirements that I indicated of only

occasionally reaching overhead with the bilateral upper extremities,

does the DOT specifically delineate between overhead reaching,

reaching in front, reaching behind . . .?

(Doc. 4-3, p. 60). The VE responded that the “DOT does deal with reaching,

but not that specific in terms of directions.” (Doc. 4-3, p. 60). Finally, the ALJ

asked:

If I were to add another provision to the hypothetical that the individual

would miss work more than two days per month on a regular basis would

there be work in the national economy for that hypothetical individual?

(Doc. 4-3, p. 61). To which the VE responded, “[n]o, Your Honor.” (Doc. 4-3,

p. 61).

Ms. Washington argues that the ALJ did not meet the burden of showing

sufficient numbers of jobs available because the ALJ failed to pose to the vocational

expert questions that encompass the full range of Ms. Washington’s impairments.

Specifically, Ms. Washington contends that the ALJ failed to include that the

hypothetical individual could never “reach overhead or forward with her left upper

extremity.” (Doc. 6, pp. 24-25) (emphasis added). Additionally, Ms. Washington

argues that the ALJ should have conclusively determined that Ms. Washington was

incapable of performing any work because the VE responded that an individual who

“would miss more than two days per month on a regular basis” would be unable to

work. (Doc. 6, pp. 24-25).

The ALJ did not err in failing to include the specific condition that the

hypothetical individual could not reach forward with her upper left extremity. The

ALJ did ask the VE here whether there was employment for an individual who had

difficulty reaching overhead with upper bilateral extremities, and the VE explained

that the DOT does not delineate between reaching overhead or forward. (Doc. 4-3,

p. 61). The VE’s answer suggests that the DOT guidelines consider difficulty in

reaching in all directions as opposed to just reaching overhead. Even so, Ms.

Washington does not provide evidence supporting her contention that if the ALJ had

specifically asked about reaching forward, the VE would have changed his answer

regarding available employment. Indeed, the fact that the DOT guidelines do not

differentiate movement to that level of specificity indicates that the VE’s answer to

the ALJ’s hypothetical question regarding reaching with the upper extremities likely

would be the same.

As to the second limitation, there is no evidence in the record that Ms.

Washington necessarily would need to miss work more than two days a month.

While she testified that she does sleep often and that her medications make her

drowsy, Ms. Washington did not testify that she is incapable of work more than two

days a month, and her medical records do not support that conclusion. (Doc. 4-3,

pp. 46, 51). The ALJ therefore could disregard that limitation in her determination.

See Crawford, 363 F.3d at 1161. Accordingly, the ALJ included sufficient

information regarding Ms. Washington’s severe impairments in her hypothetical

questioning to the VE.

V. CONCLUSION

For the reasons discussed above, the Court affirms the Commissioner’s

decision.

DONE and ORDERED this September 23, 2020.

os DELINE HUGHES HAIKALA

UNITED STATES DISTRICT JUDGE

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