Hutson v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

JENNIFER LYNN HUTSON, )

)

Plaintiff, )

)

v. ) Case No. 6:21-cv-01495-SGC

)

COMMISSIONER, SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

MEMORANDUM OPINION1

The plaintiff, Jennifer Lynn Hutson, appeals from the decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying

her application for Disability Insurance Benefits (“DIB”).2 (See Doc. 1).3 Hutson

timely pursued and exhausted her administrative remedies, and the Commissioner’s

decision is ripe for review pursuant to 42 U.S.C § 405(g). For the reasons discussed

below, the Commissioner’s decision is due to be remanded, although not on all

grounds urged by Hutson.

1 The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Doc. 12).

2 Hutson asserts in her brief that she also applied for Supplemental Security Income. (Doc. 15 at

1). But the record reflects Hutson applied only for DIB. (Tr. at 28, 153, 154, 165, 179, 192, 258).

3 Citations to the record in this case refer to the document and page numbers assigned by the court’s

CM/ECF electronic document system and appear as: Doc. __ at __. Citations to the administrative

record refer to the page numbers assigned by the Commissioner and appear as: Tr. at __.

I. Procedural History

Hutson has at least a high school education and prior work experience as a

teacher’s aide. (Tr. at 40 at 61). In her application for DIB, as amended, Hutson

alleged she became disabled on January 16, 2019, due to a variety of impairments.

(Id. at 28). After her claim was denied, Hutson requested a hearing before an

Administrative Law Judge (“ALJ”). (Id. at 28). Following a hearing, the ALJ denied

Hutson’s claim on March 10, 2021. (Id. at 28-42). The Appeals Council denied

review of the ALJ’s decision on September 17, 2021. (Id. at 1-4). The decision then

became the final decision of the Commissioner. See Frye v. Massanari, 209 F. Supp.

2d 1246, 1251 (N.D. Ala. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th

Cir. 1998)). Thereafter, Hutson commenced this action. (Doc. 1).

II. Statutory and Regulatory Framework

To establish eligibility 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. §§ 416(i)(1)(A), 423(d)(1)(A); see also 20 C.F.R. §

404.1505(a). An applicant for DIB must demonstrate disability between her alleged

initial onset date and her date last insured. Mason v. Comm’r of Soc. Sec., 430 F.

App’x 830, 831 (11th Cir. 2011) (citing Moore v. Barnhart, 405 F.3d 1209, 1211

(11th Cir. 2005); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)). The

Social Security Administration (“SSA”) employs a five-step sequential analysis to

determine an individual’s eligibility for disability benefits. 20 C.F.R. §

404.1520(a)(4).

First, the Commissioner must determine whether the claimant is engaged in

“substantial gainful activity.” Id. at § 404.1520(a)(4)(i). If the claimant is engaged

in substantial gainful activity, the Commissioner will find the claimant is not

disabled. Id. at § 404.1520(a)(4)(i) and (b). At the first step, the ALJ determined

Hutson met the SSA’s insured status requirements through December 31, 2019, and

had not engaged in substantial gainful activity since January 16, 2019, the amended

alleged onset date of her disability. (Tr. at 30).

If the claimant is not engaged in substantial gainful activity, the

Commissioner must next determine whether the claimant suffers from a severe

physical or mental impairment or combination of impairments that has lasted or is

expected to last for a continuous period of at least twelve months. 20 C.F.R. §

404.1520(a)(4)(ii). If the claimant does not have a severe impairment or

combination of impairments, the Commissioner will find the claimant is not

disabled. Id. at § 404.1520(a)(4)(ii) and (c). At the second step, the ALJ determined

that through her date last insured Hutson had the following severe impairments:

degenerative disc disease, osteoarthritis of the cervical and lumbar spine with a small

disc extrusion and an annular tear, cervical radiculopathy, right carpal tunnel

syndrome status post-surgical release, fibromyalgia, and obesity. (Tr. at 31). The

ALJ determined Hutson’s depression and attention-deficit / hyperactivity disorder

(“ADHD”) were non-severe impairments. (Id.).

If the claimant has a severe impairment or combination of impairments, the

Commissioner must then determine whether the impairment or combination of

impairments meets or equals one of the “Listings” found in 20 C.F.R. Part 404,

Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s

impairment or combination of impairments meets or equals one of the Listings, the

Commissioner will find the claimant is disabled. Id. at § 404.1520(a)(4)(iii) and (d).

At the third step, the ALJ determined that through her date last insured Hutson did

not have an impairment or combination of impairments that met or medically

equaled the severity of one of the Listings. (Tr. at 34).

If the claimant’s impairment or combination of impairments does not meet or

equal one of the Listings, the Commissioner must determine the claimant’s residual

functional capacity (“RFC”) before proceeding to the fourth step. 20 C.F.R. §

404.1520(e). At the fourth step, the Commissioner will compare an assessment of

the claimant’s RFC with the physical and mental demands of the claimant’s past

relevant work. Id. at § 404.1520(a)(4)(iv) and (e). If the claimant is capable of

performing her past relevant work, the Commissioner will find the claimant is not

disabled. Id. at § 404.1520(a)(4)(iv).

Before proceeding to the fourth step, the ALJ determined that through her date

last insured Hutson had the RFC to occasionally lift and/or carry 20 pounds;

frequently lift and/or carry up to 10 pounds; stand and/or walk in combination for at

least six hours during an eight-hour workday, with normal breaks; sit for between

six and eight hours during an eight-hour workday, with normal breaks; occasionally

climb ramps and stairs but not ladders, ropes, or scaffolds; occasionally balance,

stoop, kneel, crouch and/or crawl; frequently perform fine and gross manipulations

bilaterally; and tolerate occasional exposure to extreme heat, extreme cold, wetness,

and humidity. (Tr. at 24). The ALJ determined Hutson could not perform overhead

work activities with her upper extremities or be exposed to vibration or industrial

hazards. (Id.). At the fourth step, the ALJ determined that through her date last

insured Hutson was not able to perform her past relevant work. (Id. at 40).

If the claimant is unable to perform her past relevant work, the Commissioner

must finally determine whether the claimant is capable of performing other work

that exists in substantial numbers in the national economy in light of the claimant’s

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

(g)(1). If the claimant is capable of performing other work, the Commissioner will

find the claimant is not disabled. Id. at § 404.1520(a)(4)(v) and (g)(1). If the

claimant is not capable of performing other work, the Commissioner will find the

claimant is disabled. Id. at § 404.1520(a)(4)(v) and (g)(1).

At the fifth step, considering Hutson’s age, education, work experience, and

RFC, the ALJ determined that through her date last insured there were jobs existing

in significant numbers in the national economy, such as those of office helper,

storage facility rental clerk, and electronic worker, that Hutson could perform. (Tr.

at 40-41). Therefore, the ALJ concluded Hutson was not disabled through her date

last insured. (Id. at 41-42).

III. Standard of Review

Review of the Commissioner’s decision is limited to a determination of

whether that decision is supported by substantial evidence and whether the

Commissioner applied correct legal standards. Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1158 (11th Cir. 2004). A district court must review the

Commissioner’s findings of fact with deference and may not reconsider the facts,

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

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007); Dyer

v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district court must

“scrutinize the record as a whole to determine if the decision reached is reasonable

and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233,

1239 (11th Cir. 1983) (internal citations omitted). Substantial evidence is “such

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

conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id. A

district court must uphold factual findings supported by substantial evidence, even

if the preponderance of the evidence is against those findings. Miles v. Chater, 84

F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v. Sullivan, 894 F.2d 1520, 1529

(11th Cir. 1990)).

A district court reviews the Commissioner’s legal conclusions de novo. Davis

v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner’s] failure to

apply the correct law or to provide the reviewing court with sufficient reasoning for

determining that the proper legal analysis has been conducted mandates reversal.”

Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

IV. Discussion

Hutson filed an opening brief in which she asserts four errors in relation to the

administrative proceedings. (Doc. 14). She claims (1) the ALJ did not evaluate the

opinions of Justin Anderson, Psy.D., and Keith Morrow, D.O., properly; (2) the ALJ

erred by finding her depression and ADHD were non-severe impairments; (3) the

ALJ failed to address multiple apparent conflicts between the testimony of the

Vocational Expert (“VE”) and the Dictionary of Occupational Titles; and (4) the

Appeals Council failed to evaluate her additional evidence properly. (Doc. 14). The

Commissioner then filed a motion seeking to remand the case for further

consideration of Dr. Anderson’s opinions and the VE’s testimony. (Doc. 15).

Hutson opposes the motion insofar as it does not seek remand for further

consideration of all her asserted errors. (Doc. 16). The court considers below the

assertions of error the Commissioner has not impliedly conceded.

A. Non-Severe Impairments

Step two of the sequential evaluation undertaken by an ALJ serves as a “filter

or “screen” to weed out claims involving no severe impairment or combination of

impairments. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987); Stratton v.

Bowen, 827 F.2d 1447, 1452, 1452 n.9 (11th Cir. 1987). “[T]he finding of any

severe impairment . . . is enough to satisfy the requirement of step two.” Jamison,

814 F.2d at 588 (emphasis added); see also Tuggerson-Brown v. Comm’r of Soc.

Sec., 572 F. App’x 949, 951 (11th Cir. 2014) (“Based on our precedent and the

regulations . . . it is apparent that there is no need for an ALJ to identify every severe

impairment at step two.”). However, if a case advances beyond step two, an ALJ

must consider all impairments, severe or not, at later steps of the sequential

evaluation. Tuggerson-Brown, 572 F. App’x at 951; Gray v. Comm’r of Soc. Sec.,

550 F. App’x 850, 853 (11th Cir. 2013) (citing Bowen v. Heckler, 748 F.2d 629,

634-35 (11th Cir. 1984)). Accordingly, where an ALJ commits error at step two, the

error is harmless, provided the ALJ considers all impairments, severe or not, at later

steps of the sequential evaluation. See, e.g., Tuggerson-Brown, 572 F. App’x at 951-

52 (holding claimant could not demonstrate error where record demonstrated ALJ

considered severe and non-severe impairments after step two of sequential

evaluation).

Any error the ALJ committed by failing to identify Hutson’s depression and

ADHD as severe impairments at step two is harmless because the ALJ considered

these impairments at later steps of the sequential evaluation. The ALJ stated she

evaluated whether Hutson had an “impairment or combination of impairments” that

met or medically equaled the severity of one of the Listings and considered “all

symptoms” in determining Hutson’s RFC. (Tr. at 34). “Under [Eleventh Circuit]

precedent, those statements are enough to demonstrate that the ALJ considered all

necessary evidence.” Tuggerson-Brown, 572 F. App’x at 952 (citing Wilson v.

Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002)).

B. Dr. Morrow’s Opinions

For DIB and SSI applications filed on or after March 27, 2017, new

regulations for evaluating medical evidence apply. Relevant here, the new

regulations alter how the SSA evaluates medical opinions. The old regulatory

regime implemented a hierarchy of medical opinions and instructed an ALJ to assign

an evidentiary weight to each medical opinion contained in the record by considering

a laundry list of factors. See 20 C.F.R. § 404.1527(c). The new regulatory regime

disposes of the aforementioned hierarchy and instructs an ALJ to articulate the

persuasiveness of a medical opinion or the source of multiple medical opinions by

explaining (1) the extent to which the source offers support for the opinion(s) and

(2) the consistency of the opinion(s) with the record. See id. at § 404.1520c(a), (b)(1)

and (2), and (c)(1) and (2). “The more relevant the objective medical evidence and

supporting explanations presented by a medical source are to support his or her

medical opinion(s) . . . the more persuasive the medical opinion(s) . . . will be.” See

id. at § 404.1520c(c)(1). “The more consistent a medical opinion(s) . . . is with the

evidence from other medical sources and nonmedical sources in the claim, the more

persuasive the medical opinion(s) . . . will be.” See id. at § 404.1520c(c)(2). The

ALJ may, but is not required to, explain her consideration of other factors. See id.

at § 404.1520c(b)(2).

To make explicit what is implied above, when one medical source provides

multiple medical opinions, the new regulations do not require an ALJ to articulate

the persuasiveness of each medical opinion. See id. at § 404.1520c(b)(1). An ALJ

instead may “articulate how [she] considered the medical opinions . . . from that

medical source together in a single analysis.” Id. This is “[b]ecause many claims

have voluminous case records containing many types of evidence from different

sources,” as a consequence of which “it is not administratively feasible for [an ALJ]

to articulate in each determination or decision how [she] considered all of the factors

for all of the medical opinions.” Id.

Dr. Morrow is a family practitioner who saw Hutson monthly between

January 2019 and December 2020. (Tr. at 547-59, 619-33). In a treatment record

dated April 10, 2019, he opined Hutson should avoid repetitive motion with her right

hand due to pain and swelling. (Id. at 556). He completed a Physical Impairment

Questionnaire on January 5, 2021, stating Hutson suffered from constant, relatively

severe neck and back pain; had a history of fibromyalgia syndrome, lupus, and

neuropathy; and had functional limitations greater than those incorporated into the

ALJ’s formulation of Hutson’s RFC. (Id. at 635-39). An unexhaustive list of those

limitations according to Dr. Morrow is that Hutson could sit and stand or walk less

than one hour during an eight-hour workday with normal breaks; would require two

or three unscheduled breaks during an eight-hour workday; had significant

limitations in doing repetitive reaching, handling, and fingering; could only

occasionally lift between one and five pounds; could never lift any weight greater

than five pounds; and must avoid wetness, humidity, heights, noise, fumes, and

gases. (Id. at 638-39). Dr. Morrow identified palpable spasms in Hutson’s cervical

and lumbar paraspinous muscles as the basis for his opinions. (Id. at 635). The

Physical Impairment Questionnaire included a question asking Dr. Morrow to state

his opinion regarding the onset date of Hutson’s symptoms and limitations. (Id. at

636). Dr. Morrow did not answer the question. (See id.).

The ALJ determined the opinions Dr. Morrow expressed on the Physical

Impairment Questionnaire were unpersuasive because “they [were] not consistent

with his own treatment records or those of other physicians during 2019 and prior to

the expiration of [Hutson’s] insured status.” (Id. at 39). The ALJ also determined

the opinions did “not necessarily relate[] to the period at issue” because the Physical

Impairment Questionnaire was dated January 5, 2021, and Dr. Morrow expressed no

opinion Hutson’s functional limitations existed before December 31, 2019, the date

on which Hutson’s insured status expired. (Id. at 40).

Hutson argues the ALJ erred insofar as she did not mention Dr. Morrow’s

April 10, 2019 opinion she should avoid repetitive motion with her right hand due

to pain and swelling. (Doc. 14 at 11). She further asserts that with respect to the

Physical Impairment Questionnaire the ALJ did not discuss the supportability and

consistency factors with sufficient specificity. (Doc. 14 at 12-13). Finally, she

contends the chronological irrelevancy of the Physical Impairment Questionnaire

was not a valid reason for finding the opinions expressed in the questionnaire

unpersuasive and that the opinions did relate to the relevant period because Dr.

Morrow treated Hutson during that period. (Doc. 14 at 13).

The ALJ did not mention, explicitly, Dr. Morrow’s April 10, 2019 opinion

that Hutson should avoid repetitive motion with her right hand due to pain and

swelling. But, as discussed above, the new regulations do not require an ALJ to

discuss, explicitly, each medical opinion expressed by a medical source who offers

multiple medical opinions. See 20 C.F.R. § 404.1520c(b)(1). Regardless, Dr.

Morrow expressed a substantially similar opinion in the Physical Impairment

Questionnaire – that Hutson had significant limitations in doing repetitive reaching,

handling, or fingering – and the ALJ did discuss, explicitly, the Physical Impairment

Questionnaire.

As stated, Hutson argues the ALJ failed to address adequately the

supportability and consistency factors in relation to the Physical Impairment

Questionnaire. The court disagrees. The ALJ did not follow her statement regarding

the unpersuasiveness of Dr. Morrow’s opinions with statements regarding the

specific evidence that is inconsistent with each specific opinion. But the ALJ

discussed the supportability and consistency of Dr. Morrow’s opinions in a general

way elsewhere in her opinion. Again, the new regulations do not require an ALJ to

discuss, explicitly, each medical opinion expressed by a medical source who offers

multiple medical opinions. See 20 C.F.R. § 404.1520c(b)(1). And the court does

not interpret the new regulations or the case law to require an ALJ to structure her

discussion of a medical source’s medical opinions in a particular way.

The ALJ noted that, beginning in April 2019, Dr. Morrow detected palpable

cervical and lumbar spasms on examination of Hutson but did not note any

associated objective motor, sensory, reflex, or focal neurological deficits; muscle

atrophy; gait or mobility deficits; swelling, edema, synovitis, or effusion; or passive

range of motion deficits. (Tr. at 36; see also id. at 547-59, 619-33). The ALJ noted

records of Deepak V. Sree, M.D., of Rheumatology Associates of North Alabama,

P.C., showed Hutson described her low back pain in June 2019, shortly before

expiration of her insured status, as only periodic, flaring up “from time to time,” and

resolving “in about a week or so.” (Id. at 37; see also id. at 479). A record from a

follow-up visit with Dr. Sree in October 2019 documented Hutson’s evaluation for

lupus as unremarkable and her fibromyalgia as having improved. (Id. at 477).

Imaging of Hutson’s cervical and lumbar spines performed in November 2019 at the

request of David R. Longmire, M.D., a neurologist, revealed abnormalities described

as no more than “small” or “mild.” (Id. at 456-57). Motor nerve studies of the

median and peroneal nerves performed by Dr. Longmire’s office in November 2019

revealed normal findings. (Id. at 459). The ALJ discussed Dr. Sree’s October 2019

record and Dr. Longmire’s objective findings. (Id. at 37-38). She also noted Dr.

Morrow did not identify any hand- or wrist-related pain or objective findings as a

basis of the opinions expressed in the Physical Impairment Questionnaire. (Id. at

37). The discussion above shows the ALJ did consider the supportability and

consistency factors relative to Dr. Morrow’s medical opinions, and her

determination the opinions were unpersuasive is supported by substantial evidence.

Because the ALJ considered the supportability and consistency factors, her

determination regarding the Physical Impairment Questionnaire’s lack of

chronological relevancy was not the only reason for discounting the questionnaire.

Moreover, that determination was not in error. Dr. Morrow expressed no opinion in

the questionnaire, which post-dated Hutson’s date last insured, as to the onset date

of Hutson’s symptoms and limitations. (See id. at 636).

C. Evidence Considered by Appeals Council

A claimant generally may present additional evidence at each stage of the

administrative process. 20 C.F.R. §§ 404.900(b), 404.970. The Appeals Council

must consider “new, material, and chronologically relevant evidence” submitted by

a claimant. Id. at § 404.970. Evidence is new if it is not merely cumulative of the

evidence that was before the ALJ. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.

1986). Evidence is material if there is a reasonable probability it would change the

administrative result. Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). Evidence

is chronologically relevant if it relates back to the time of the ALJ’s decision.

Washington v. Comm’r of Soc. Sec., 806 F.3d 1317, 1322 (11th Cir. 2015).

Whether evidence is new, material, and chronologically relevant is a question

of law subject to de novo review. Id. at 1321. Where the Appeals Council refuses

to consider new, material, and chronologically relevant evidence, it commits an error

of law, and remand to the Commissioner for consideration of the evidence in

conjunction with the record is appropriate. Id.

Hutson submitted to the Appeals Council a supplement to the Physical

Impairment Questionnaire completed by Dr. Morrow. (Tr. at 8). In the supplement,

dated May 13, 2021, Dr. Morrow indicates Hutson has limited ability to use her

hands to grasp, turn, and twist objects; to use her fingers for fine manipulation; and

to reach out and overhead with her arms. (Id.). Dr. Morrow further indicates the

limitations he noted in the January 5, 2021 Physical Impairment Questionnaire were

present as of January 2019. (Id.). The Appeals Council determined there was not a

reasonable probability the supplement would change the administrative result and,

therefore, declined to exhibit the evidence. (Id. at 2).

Hutson argues the Appeals Council erred insofar as Dr. Morrow’s supplement

addressed the ALJ’s reason for determining his January 5, 2021 Physical Impairment

Questionnaire was unpersuasive: that it did not relate to the relevant period. (Doc.

14 at 19). However, as discussed above, the ALJ did not determine the Physical

Impairment Questionnaire was unpersuasive for the sole reason it did not relate to

the relevant period. The supportability and consistency factors also informed the

ALJ’s determination. The ALJ found the medical opinions Dr. Morrow expressed

in the Physical Impairment Questionnaire were not supported by his own records or

consistent with the records of Hutson’s other treating providers. Given this

independent basis for determining the Physical Impairment Questionnaire was

unpersuasive, there is no reason to believe Dr. Morrow’s May 13, 2021 statement

the functional limitations noted on the January 5, 2021 Physical Impairment

Questionnaire were present as of January 2019 would have induced the ALJ to reach

a different conclusion.

Hutson also argues there is a reasonable probability the opinions Dr. Morrow

expressed in his May 13, 2021 supplement regarding her limitations in using her

hands, fingers, and arms would change the administrative result because these

limitations are inconsistent with the requirements of the jobs for which the ALJ

found her capable. (Doc. 14 at 19). Dr. Morrow expressed substantially the same

opinions in his January 5, 2021 Physical Impairment Questionnaire. He simply used

slightly different verbiage. (See id. at 638). Accordingly, there is not a reasonable

probability the “new” opinion regarding Hutson’s limitations in using her hands,

fingers, and arms would result in a different administrative outcome.

V. Conclusion

The Commissioner’s motion to remand this case for further consideration of

Dr. Anderson’s opinions and the VE’s testimony (Doc. 15) is due to be granted.

Having reviewed the administrative record and considered all the arguments

presented by the parties, the court finds the Commissioner’s decision otherwise is

due to be affirmed. A separate order will be entered.

DONE this 24th day of March, 2023.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

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