P. BRADLEY MURRAY, Magistrate Judge.
Plaintiff Brittany L. Gilbert brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying her claims for child disability benefits and supplemental security income. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 16 & 17 ("In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.")). Upon consideration of the administrative record, Plaintiff's brief, the Commissioner's brief, and the parties' arguments at the January 28, 2020 hearing before the undersigned, the Court concludes that the Commissioner's decision denying benefits should be affirmed.
Plaintiff protectively filed an application for child's insurance benefits on or about July 6, 2016 and protectively filed an application for supplemental security income benefits on May 3, 2016 (compare Tr. 16 with Tr. 224-40); Plaintiff alleged disability beginning on November 3, 2013 in both applications (Tr. 224 & 231). Gilbert's claims were initially denied on July 7, 2016 (Tr. 84-85 & 145-57) and, following Plaintiff's July 19, 2016 request for a hearing before an Administrative Law Judge ("ALJ") (Tr. 165-67), a hearing—by video—was conducted before an ALJ on March 21, 2018 (Tr. 42-63). Two months prior to the hearing, on January 24, 2018, Plaintiff amended her disability onset date to January 15, 2016. (Tr. 245). On August 9, 2018, the ALJ issued a decision finding that the claimant was not disabled and, therefore, not entitled to social security benefits. (Tr. 16-28). More specifically, the ALJ determined at the fifth step of the five-step sequential evaluation process that Gilbert retains the residual functional capacity to perform those sedentary jobs identified by the vocational expert ("VE") during the administrative hearing (compare id. at 21-28 with Tr. 59-60). On August 29, 2018, the Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council (see Tr. 220-23); the Appeals Council denied Gilbert's request for review on March 13, 2019 (Tr. 1-3). Thus, the hearing decision became the final decision of the Commissioner of Social Security.
Plaintiff alleges disability due to Hashimoto encephalopathy, hyperthyroidism, migraine headaches, pseudo-tumor cerebri, Type II diabetes mellitus, obesity, and vertigo. The Administrative Law Judge (ALJ) made the following relevant findings:
(Tr. 18, 19, 21-22, 26, 27 & 28 (emphasis in original)).
A claimant is entitled to an award of benefits when she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or last for a continuous period of not less than 12 months. See, e.g., 20 C.F.R. § 416.905(a). In determining whether a claimant has met her burden of proving disability, the Commissioner follows a five-step sequential evaluation process. See, e.g., 20 C.F.R. § 416.920. At step one, if a claimant is performing substantial gainful activity, she is not disabled. 20 C.F.R. § 416.920(b). At the second step, if a claimant does not have an impairment or combination of impairments that significantly limits her physical or mental ability to do basic work activities (that is, a severe impairment), she is not disabled. 20 C.F.R. § 416.920(c). At step three, if a claimant proves that her impairments meet or medically equal one of the listed impairments set forth in Appendix 1 to Subpart P of Part 404, the claimant will be considered disabled without consideration of age, education and work experience. 20 C.F.R. § 416.920(d). If the claimant is unable to prove the existence of a listed impairment, at the fourth step, the claimant's residual functional capacity is determined, 20 C.F.R. § 416.920(e), and then a determination must be made regarding whether claimant's physical and/or mental impairments prevent her from performing any past relevant work, 20 C.F.R. § 416.920(f). And at the fifth step, the Commissioner must consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can perform other work besides past relevant work. 20 C.F.R. § 416.920(g). Plaintiff bears the burden of proof through the first four steps of the sequential evaluation process, see Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987), and while the burden of proof shifts to the Commissioner at the fifth step of the process to establish other jobs existing in substantial numbers in the national economy that the claimant can perform,
The task for the Magistrate Judge is to determine whether the Commissioner's decision to deny claimant benefits is supported by substantial evidence. Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
On appeal to this Court, Gilbert asserts two reasons the Commissioner's decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1) the ALJ's RFC determination is not supported by substantial evidence principally because the ALJ improperly rejected the opinions of her treating pediatric neurologist, Dr. Paul Maertens; and (2) the Appeals Council erred in failing to admit the evidence submitted to it as an exhibit and should have remanded the case to the ALJ for consideration of this new evidence.
The responsibility for making the residual functional capacity determination rests with the ALJ. Compare, e.g., 20 C.F.R. § 404.1546(c) ("If your case is at the administrative law judge hearing level . . ., the administrative law judge . . . is responsible for assessing your residual functional capacity.") with, e.g., Packer v. Commissioner, Social Security Admin., 542 Fed. Appx. 890, 891-892 (11th Cir. Oct. 29, 2013) (per curiam) ("An RFC determination is an assessment, based on all relevant evidence, of a claimant's remaining ability to do work despite her impairments. There is no rigid requirement that the ALJ specifically refer to every piece of evidence, so long as the ALJ's decision is not a broad rejection, i.e., where the ALJ does not provide enough reasoning for a reviewing court to conclude that the ALJ considered the claimant's medical condition as a whole." (internal citation omitted)). A plaintiff's RFC—which "includes physical abilities, such as sitting, standing or walking, and mental abilities, such as the ability to understand, remember and carry out instructions or to respond appropriately to supervision, co-workers and work pressure[]"—"is a[n] [] assessment of what the claimant can do in a work setting despite any mental, physical or environmental limitations caused by the claimant's impairments and related symptoms." Watkins v. Commissioner of Social Security, 457 Fed. Appx. 868, 870 n.5 (11th Cir. Feb. 9, 2012) (citing 20 C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)); see also 20 C.F.R. § 404.1545(a)(3) (in assessing RFC, the Commissioner is required to consider "descriptions and observations of [the claimant's] limitations from [] impairments, including limitations that result from [] symptoms, such as pain, provided by [the claimant]. . . ."). Because "[a]n RFC determination is an assessment, based on all relevant evidence, of a claimant's remaining ability to do work despite her impairments[,]" Packer, supra, 542 Fed.Appx. at 891, consideration of a claimant's testimony and credibility is certainly an aspect of any such determination, see id. at 892 (in finding that Plaintiff had failed to establish that her RFC assessment was not supported by substantial evidence, the Eleventh Circuit considered, among other matters, the ALJ's consideration of Packer's testimony, specifically the credibility determination).
To find that an ALJ's RFC determination is supported by substantial evidence, it must be shown that the ALJ has "`provide[d] a sufficient rationale to link'" substantial record evidence "`to the legal conclusions reached.'" Ricks v. Astrue, 2012 WL 1020428, *9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F.Supp.2d 1345, 1347 (M.D. Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D. Ala. Feb. 14, 2013) ("`[T]he ALJ must link the RFC assessment to specific evidence in the record bearing upon the claimant's ability to perform the physical, mental, sensory, and other requirements of work.'"), aff'd, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013); see also Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per curiam) ("The ALJ must state the grounds for his decision with clarity to enable us to conduct meaningful review. . . . Absent such explanation, it is unclear whether substantial evidence supported the ALJ's findings; and the decision does not provide a meaningful basis upon which we can review [a plaintiff's] case." (internal citation omitted)).
In this case, the Court finds that the ALJ linked his RFC assessment—that is, light work with numerous limitations
"Weighing the opinions and findings of treating, examining, and non-examining physicians is an integral part of the process for determining disability." Kahle v. Commissioner of Social Security, 845 F.Supp.2d 1262, 1271 (M.D. Fla. 2012). In general, "the opinions of examining physicians are given more weight than those of non-examining physicians, treating physicians are given more weight than those of physicians who examine but do not treat, and the opinions of specialists are given more weight on issues within the area of expertise than those of non-specialists." McNamee v. Social Sec. Admin., 164 Fed.Appx. 919, 923 (11th Cir. Jan. 31, 2006). Indeed, "the ALJ must give the opinion of the treating physician `substantial or considerable weight unless "good cause" is shown to the contrary.'" Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan. 15, 2014), quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (other citation omitted); see Nyberg v. Commissioner of Social Security, 179 Fed.Appx. 589, 591 (11th Cir. May 2, 2006) (citing to same language from Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (per curiam).
The ALJ's analysis of Dr. Maertens' opinions is admittedly a bit hard to follow (see Tr. 25-26); however, the following appears to be the critical portion of that analysis:
(Tr. 26).
The government conceded during oral arguments on January 28, 2020, that the second part of the Maertens' sentence directed to whether the claimant can engage in gainful employment (see Tr. 437), specifically the portion about missing work for more than 2 days per month or experiencing frequent interruptions (id.), takes the treating pediatric neurologist's opinion out of the realm of a comment on the inability to work (that is, a comment on an issue reserved to the Commissioner) and safely ensconces it as a medical opinion, contrary to what was found by the ALJ (see Tr. 26). This concession, however, does not translate into a remand in favor of the Plaintiff in this case because the ALJ stated elsewhere that he was rejecting Dr. Maertens' various opinions because the treating pediatric neurologist completed the form on March 28, 2016 (see, e.g., Tr. 437-40), a mere two months after the amended disability onset date (compare id. with Tr. 26). Moreover, the ALJ also rejected Maertens' various opinions because they were not supported by the record as a whole, or were contradicted by persuasive evidence, and the ALJ chose to place greater weight on the objective and clinical findings of record. (Tr. 26).
This Court agrees with the ALJ that because Dr. Maertens' opinions only account for two months of the period of adjudication they do not provide a sufficient basis upon which to find Plaintiff disabled, since the definition of disability presupposes that an individual is unable to engage in substantial gainful activity for a continuous period of not less than 12 months. See, e.g., 20 C.F.R. § 416.905(a). And, here, it bears noting that after Plaintiff's office visit to Dr. Maertens on March 28, 2016 (see Tr. 429-30), Gilbert appears to have been evaluated by Dr. Maertens on only one occasion thereafter, on October 4, 2016 (Tr. 441-42), a date upon which the plan included referral to the YMCA (id. at 442). The referral of Plaintiff to the YMCA appears to the Court to be inherently inconsistent with Dr. Martens' expressed opinion in March of 2016 that physical activities (including, walking and movement of extremities) would greatly increase her pain to such an extent at to cause distraction from task or total abandonment of task (compare id. with Tr. 439). In addition, the ALJ correctly observed that Dr. Maertens' opinions are not bolstered by the record evidence as a whole and, indeed, the record evidence supports contrary findings. The relevant objective findings of various neurologists who examined Plaintiff after she got to an age where she could not be treated by Dr. Maertens, at all times have been grossly normal (Tr. 445-46, 462-63 & 467-68).
Based on the foregoing discussion, the undersigned finds that the ALJ's decision to afford little weight to the opinions expressed by Dr. Maertens on March 28, 2016 is supported by substantial evidence and, as a consequence, also finds the ALJ's RFC determination supported by substantial evidence. As aforesaid, the ALJ explained in detail how the medical evidence of record supported the particular components of his RFC determination and, therefore, properly linked his RFC assessment to specific evidence in the record bearing upon Gilbert's ability to perform the physical, mental, sensory and other requirements of work.
The Eleventh Circuit has made clear that "[w]ith few exceptions, the claimant is allowed to present new evidence at each stage of th[e] administrative [review] process[,]" including before the Appeals Council. Ingram v. Commissioner of Social Security Admin., 496 F.3d 1253, 1261 (11th Cir. 2007). And while the Appeals Council has the discretion not to review the ALJ's denial of benefits, Flowers v. Commissioner of Social Sec., 441 Fed.Appx. 735, 745 (11th Cir. Sept. 30, 2011), it "must consider new, material, and chronologically relevant evidence" submitted by the claimant. Ingram, supra, 496 F.3d at 1261; see also 20 C.F.R. § 404.970(b) ("If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision.").
Ring v. Berryhill, 2017 WL 992174, *4 (N.D. Ala. Mar. 15, 2017), aff'd, 728 Fed.Appx. 966 (11th Cir. Mar. 23, 2018).
In Flowers, supra, the Eleventh Circuit made clear that "[w]hen a claimant properly presents new evidence, and the Appeals Council denies review, the Appeals Council must show in its written denial that it has adequately evaluated the new evidence." 441 Fed.Appx. at 745 (citation omitted). Indeed, "[i]f the Appeals Council merely `perfunctorily adhere[s]' to the ALJ's decision, the Commissioner's findings are not supported by substantial evidence and we must remand `for a determination of [the claimant's] disability eligibility reached on the total record.'" Id., quoting Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980). The panel in Flowers ultimately concluded that the Appeals Council did not adequately consider the new evidence submitted by the claimant because "apart from acknowledging that Flowers had submitted new evidence, the Appeals Council made no further mention of it or attempt to evaluate it." Id.
However, since the decision in Flowers, subsequent panels of the Eleventh Circuit have indicated that where the Appeals Council accepts a claimant's new evidence but denies "review because the additional evidence fail[s] to establish error in the ALJ's decision[,]" that administrative body adequately evaluates the new evidence. Mitchell v. Commissioner, Social Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014); see also Beavers v. Social Sec. Admin., Commissioner, 601 Fed.Appx. 818, 822 (11th Cir. Feb. 9, 2015) ("Here, the Appeals Council denied Worthy's petition for review, stating, as it did in Mitchell, that it had considered Worthy's reasons for disagreeing with the ALJ's decision and her new evidence, but found that the new evidence did not provide a basis for changing the ALJ's decision. Under Mitchell, no further explanation was required of the Appeals Council."). Indeed, the Mitchell panel noted that the Appeals Council "was not required to provide a detailed rationale for denying review." 771 F.3d at 784; see also id. at 784-85 ("We note that our conclusion that the Appeals Council is not required to explain its rationale for denying a request for review is consistent with the holdings of other circuits that have considered this issue.").
These subsequent panel cases leave the viability of Flowers questionable given that, as noted by the court in Flowers, the Appeals Council "stated that it had considered Flowers's reasons for her disagreement with the ALJ's decision and her additional evidence[]" but "concluded `that this information does not provide a basis for changing the Administrative Law Judge's decision.'" 441 Fed.Appx. at 740. This, of course, is the exact Appeals Council rationale upheld by later Eleventh Circuit panels in Mitchell and Beavers without need for further explanation/evaluation. Compare id. with Mitchell supra, 771 F.3d at 784-85 and Beavers, supra, 601 Fed.Appx. at 822.
With these principles in mind, the Court turns to Plaintiff's argument relative to the Appeals Council's treatment of the medical records submitted to it, Plaintiff again arguing that the Appeals Council erred in failing to remand the case for proper consideration of the additional neurological records from Stanton Road Clinic. (Doc. 13, at 6-7). In making this argument, Plaintiff provides a summary of these records (id. at 7) and argues that the records show a worsening in of Plaintiff's vertigo symptoms and medication changes due to ineffective migraine treatment and, therefore, support Dr. Maertens' opinions (id.).
This Court too has reviewed the records from Stanton Road Clinic dated May 31, 2018 and August 24, 2018 and cannot agree with Plaintiff that these records show a worsening in Plaintiff's vertigo to a degree that supports Dr. Maertens' various opinions and would suggest a reasonable probability that the outcome of the administrative decision would be changed. This is because the Stanton Road Clinic records simply reflect that Plaintiff's vertigo happens only once or twice per week and each time for only one minute (Tr. 34), evidence which is consistent with (not inconsistent with) record evidence from Stanton Road Clinic before the ALJ at the time of the administrative decision (compare id. with Tr. 444, 461-62 & 465-66). And it is because the ALJ had similar evidence before him at the time of the administrative decision that the Court finds that the Appeals Council did not err in determining that the new evidence did not establish "a reasonable probability that it would change the outcome of the decision." (Tr. 2.)
There being no other claims of error asserted, the Court finds that the Commissioner's final decision denying Gilbert benefits is due to be affirmed.
It is
