VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Gwendolyn Alford ("Ms. Alford") initiated this social security appeal on August 28, 2012. (Doc. 1). This matter is before the court on the objections (Doc. 15) of Ms. Alford to Magistrate Judge John E. Ott's report and recommendation (the "R&R") (Doc. 14),
The parties have filed briefs relating to Ms. Alford's appeal. (Docs. 6-8). The Commissioner filed a response to the Motion on May 13, 2014. (Doc. 12).
The R&R was entered on July 25, 2014. (Doc. 14). Ms. Alford's objections were filed on August 8, 2014. (Doc. 15). This case was randomly reassigned to the undersigned judge on August 12, 2014. (Doc. 16). The Commissioner responded to Ms. Alford's objections on August 22, 2014. (Doc. 18). Finally, Ms. Alford, on August 27, 2014, followed with a reply. (Doc. 19).
The matter, therefore, is now under submission, and for the reasons explained below, the court
The court's review of the Commissioner's decision is narrowly circumscribed. The function of this court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This 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). This court will determine that the ALJ's opinion is supported by substantial evidence if it finds "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. Substantial evidence is "more than a scintilla, but less than a preponderance." Id. Factual findings that are supported by substantial evidence must be upheld by the court. The ALJ's legal conclusions, however, are reviewed de novo, because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, the ALJ's decision must be reversed. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
After conducting a "careful and complete" review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other grounds by Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)).
A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep. No. 94-1609, 94th Cong., 2d Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R&R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006).
"Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) ("While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or abandoned by his failure to raise it on appeal to the district court."). However, the district judges has discretion to consider
"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410. Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Williams, 557 F.3d at 1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
Ms. Alford challenges the R&R on four different grounds, which all relate to her submission of evidence to the Appeals Council (the "AC")
Regarding the magistrate judge's review of the AC's treatment of Ms. Alford's post-hearing decision proof, the court, after undergoing a de novo assessment, concludes that the record lacks any reversible error. The court addresses each contested area separately below.
Ms. Alford first objects to R&R on the basis that the remand standard utilized by the magistrate judge is incorrect. Specifically, Ms. Alford suggests that Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987), sets forth the exclusive framework for her case. See id. ("In order to prevail on a claim that remand is appropriate, a claimant must establish that: `(1) there is new, noncumulative evidence; (2) the evidence is `material,' that is, relevant and probative so that there is a reasonable possibility that it would change the administrative result, and (3)
As the emphasized language makes clear, the Hyde remand standard most appropriately applies when a claimant is seeking to offer additional evidence that was
Further, Ingram embraces an erroneous-based test when evaluating the impact of proof properly submitted to the AC. See id. at 1262 ("When no new evidence is presented to the Appeals Council and it denies review, then the administrative law judge's decision is necessarily reviewed as the final decision of the Commissioner, but when a claimant properly presents new evidence to the Appeals Council, a reviewing court must consider
Finally, the magistrate judge did reference Hyde within the R&R insomuch as the first two prongs of that standard apply equally under the framework for evaluating evidence submitted at the AC level. (Doc. 14 at 15). Consequently, for all these reasons, the court
Ms. Alford submitted a sizeable collection of evidence to the AC post-hearing. (Tr. 4-5). In her second objection, Ms. Alford maintains that the magistrate judge improperly dealt with Dr. David Wilson's ("Dr. Wilson") psychological evaluation of her dated February 23, 2011 (Tr. 494-97), and his related mental health source statement dated May 7, 2011. (Tr. 503-04). Dr. Wilson is not one of Ms. Alford's treating physicians and apparently only saw her once in his capacity as a consultative physician.
After seeing Ms. Alford on that one day, Dr. Wilson opines:
(Tr. 497 (emphasis added)).
Dr. Wilson separately indicates that Ms. Alford is markedly restricted in her ability to follow a schedule, maintain regular attendance, arrive punctually within customary tolerances, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 503). Within this same statement, Dr. Wilson finds several other areas in which Ms. Alford has either mild or moderate work-related restrictions. (Tr. 503-04).
In discussing this evidence, the magistrate judge stated:
(Doc. 14 at 16).
The court now must determine whether this evidence is new, chronologically relevant, and material. Ingram, 496 F.3d at 1261. These documents generated by Dr. Wilson are "new" in that they are not cumulative to the evidence that Ms. Alford presented to the ALJ. Cf. Caulder v. Brown, 791 F.2d 872, 877 (11th Cir. 1986) (holding that "new objective medical evidence" presented first to the AC was not cumulative to the evidence proffered to the ALJ regarding the same underlying ailment).
Whether new proof is "chronologically relevant" and "material" is oftentimes an intertwined question. While Dr. Wilson's psychological evaluation and medical source statement were completed after December 22, 2010 — the date of the ALJ's disability determination, that temporal marker does not necessarily make the information chronologically irrelevant. Cf. Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir. 1983) ("[A] treating physician's opinion is still entitled to significant weight notwithstanding that he did not treat the claimant until after the relevant determination date." (citing Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981)), superseded on other grounds by 42 U.S.C. § 423(d)(5)).
Here, the court concludes that Dr. Wilson's records are chronologically irrelevant because the court cannot confirm that they "relate[] to the period on or before the date of the [ALJ] hearing decision." 20 C.F.R. § 404.970(b). Dr. Wilson's psychological evaluation occurs a little over two months and his medical source statement issues within five months of the ALJ decision date.
While the psychological evaluation indicates that Ms. Alford suffers from "recurrent" major depression (Tr. 497), nowhere within this report is this repeating depression tied to a time period occurring prior to the ALJ's decision. Instead, Dr. Wilson's summary of Ms. Alford's periods of taking medications for depression and anxiety include no temporal indicators other than "coming off the Celexa for about a month. . . ." (Tr. 494). Further, in terms of Ms. Alford's longitudinal mental history, Dr. Wilson reports that she "has not had any mental health treatment nor [has] been admitted to a psychiatric hospital."
The medical source statement similarly lacks any indication about what time period Dr. Wilson is capturing in his assessment of Ms. Alford. Finally, Dr. Wilson's post-hearing opinion is distinguishable from one that is provided by a treating physician, which within the Eleventh Circuit (and other sister circuits) is,
As for the factor of materiality, because there is a significant underlying gap between Dr. Wilson's findings and whether they have any bearing on Ms. Alford's condition during her relevant disability period between July 31, 2006, and December 20, 2010 (Tr. 40), the post-hearing proof is likewise immaterial. In other words, the court finds an absence of a "reasonable possibility" that the new evidence provided by Dr. Wilson,
Ms. Alford next objects to the magistrate judge's treatment of the medical source statements provided by her treating providers, Dr. Vishla Chindalore ("Dr. Chindalore") (Tr. 498-99) on March 23, 2011, and Dr. Kenny Smith ("Dr. Smith") (Tr. 585-86) on May 8, 2012. Dr. Chindalore's source statement issues a little over three months and Dr. Smith's about a year and a half after the ALJ decision date. Ms. Alford also submitted to the AC treatment notes related to these doctors. (Tr. 505-08 (Dr. Smith), 509 (Dr. Chindalore), 510-84 (Dr. Smith)).
In addressing these medical source statements, the magistrate judge reasoned:
(Doc. 14 at 17 (emphasis added)).
The court concludes that the opinions provided by Drs. Chindalore and Smith are arguably new because they are, at least, somewhat non-cumulative when compared with their earlier opinions that were before the ALJ at the time of his decision. (Compare Tr. 498-99 (Dr. Chindalore's second source statement), Tr. 585-86 (Dr. Smith's second source statement), with Tr. 418 (Dr. Chindalore's initial source statement), Tr. 458 (Dr. Smith's initial source statement)). They are also chronologically relevant as they expressly reference time frames that predate the ALJ's decision. However, the court deviates from the magistrate judge's suggestion that they lack materiality because neither new treating source opinion references
For example, Dr. Chindalore indicates that Ms. Alford "cannot lift, bend, sit/stand for prolonged periods" (Tr. 498). Further, Dr. Chindalore's source statement is supported by his underlying treatment notes made during Ms. Alford's follow-up visit on March 23, 2011, which lists fibromyalgia (one of Ms. Alford's impairments which the ALJ found to be severe (Tr. 31)) as her chief complaint. (Tr. 509). Other conditions listed are arthralagias,
However, despite the presence of some supportive medical findings, the court nevertheless agrees with the R&R that the post-hearing opinion provided by Dr. Chindalore does not meet the materiality standard because, akin to the situation in Kirkland, the full record reveals discrediting contradictions between Dr. Chindalore's initial and subsequent source statements, on the one hand, and her underlying treatment notes, on the other. As the magistrate judge explained:
(Doc. 14 at 13 (emphasis added)); (see also Tr. 34 ("On January 7, 2010, the claimant saw Dr. Chindalore for a follow-up appointment, and reported that she was doing reasonably well on her current therapy, with a little bit of pain in her thumbs and neck (Exhibit 12 F).")).
Therefore, given the ALJ's thorough explanation for discrediting Dr. Chindalore's August 2010 opinion about Ms. Alford's severe pain attributable to fibromyalgia and the absence of any effort by Dr. Chindalore to rebut the ALJ's reasoning in her subsequent March 2011 opinion, the court finds no "reasonable possibility" exists that the new evidence provided by Dr. Chindalore would persuade the ALJ to reverse his decision in this case. Hyde, 823 F.2d at 459; cf. Hayes v. Colvin, No. 4:12-CV-0809-VEH, 2013 WL 4804222, at *4 (N.D. Ala. Sept. 6, 2013) ("Dr. Lachman's subsequent patient history summary is non-cumulative as it
The court reaches a similar conclusion in its consideration of Dr. Smith's records. Here, the court assumes without deciding that the underlying treatment documents provided by Dr. Smith for the time period from August 1991 through August 2010 are sufficient to support Dr. Smith's post-hearing opinion issued on May 8, 2012, that Ms. Alford has been severely impaired since 2009 from the following collection of impairments: asthma, COPD, rheumatoid arthritis, fibromyalgia, diabetes, hypertension, and carpal tunnel syndrome. (Tr. 585).
Even so, the materiality standard is not met for several other reasons. First, akin to Kirkland, Dr. Smith's severely disabled since February 2009 opinion is contradicted by his own notes. More specifically, and as the ALJ expressly observed (Tr. 34), on August 10, 2009, Dr. Smith's records reflect that Ms. Alford reported to him that she had "good days and bad days." (Tr. 481). This type of notation significantly undermines Dr. Smith's sweeping post-hearing disability opinion, especially because he offers no explanation which reasonably reconciles this apparent divergence in Ms. Alford's degree of limitation due to pain caused by her multiple impairments.
Second, at the time Ms. Alford's case was before the ALJ, he already had a host of chronologically relevant records from Dr. Smith, including a response dated September 7, 2010, to a written inquiry from an administrative disability specialist indicating that Ms. Alford experiences "SEVERE" pain due to carpal tunnel syndrome and fibromyalgia. (Tr. 458). Because the earlier opinion from Dr. Smith is consistent with his subsequent one which comparably found that Ms. Alford suffers from severe pain based upon her collection of medical conditions, it is unlikely that the ALJ would alter the administrative result on account of this second, more developed, but yet still similar, source statement.
Third, the ALJ's grounds for discrediting Dr. Chindalore's initial source statement also raises serious doubts as to the foundation for of Dr. Smith's new pain-related opinion. In particular, Dr. Smith's post-hearing statement is silent about the impact of Ms. Alford's efforts to manage her pain symptoms through a low dosage of Lortab prescribed in July 2010. In fact, Dr. Smith's opinion appears to contradictorily indicate that Ms. Alford "avoids pain medications."
As for the underlying treatment records from Dr. Smith that were submitted to the AC, the court agrees with the R&R that they are either cumulative because the ALJ already had access to them at the time of his decision or chronologically irrelevant/immaterial because they do not bear upon Ms. Alford's status for the time period covered by the ALJ's decision. (Doc. 14 at 17-18). Therefore, for all these reasons, the court
Ms. Alford's fourth objection is tied to the magistrate judge's purported erroneous application of Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980). However, Ms. Alford's garbled objection poorly conveys the meaning of Epps. (Doc. 15 at 3-5). To be clear, Epps only requires a remand for the perfunctory treatment of post-hearing evidence by the AC when such proof is (1) new, (2) chronologically relevant, and (3) material. On the other hand, if one or more of these three criteria are not met, then the claimant's proof is not "properly present[ed]" to the AC, Ingram, 496 F.3d at 1262, and a remand pursuant to Epps is not triggered
Consequently, because the court agrees with the R&R that none of the post-hearing evidence relied upon by Ms. Alford in her objections meets the materiality threshold or otherwise satisfies the Ingram three-part test, a remand pursuant to Epps is inappropriate. Therefore, the court also
For the reasons set out above, the court