Opinion
8:21-cv-927-JSS
08-01-2022
DIANNA BROOKS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER
JULIE S. SNEED UNITED STATES MAGISTRATE JUDGE.
Plaintiff Dianna Brooks seeks judicial review of the denial of her claims for a period of disability, disability insurance benefits (DIB), and supplemental security income (SSI). As the Administrative Law Judge's (ALJ) decision was based on substantial evidence and employed proper legal standards, the decision is affirmed.
BACKGROUND
A. Procedural Background
Plaintiff filed applications for a period of disability, DIB, and SSI on June 19, 2017. (Tr. 54.) The Commissioner denied Plaintiff's claims both initially and upon reconsideration. (Tr. 54.) Plaintiff requested an administrative hearing. (Tr. 54.) Upon Plaintiff's request, the ALJ held a hearing at which Plaintiff appeared and testified. (Tr. 54.) Following the hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff's claims for benefits. (Tr. 65.) Subsequently, Plaintiff requested review from the Appeals Council, which the Appeals Council denied. (Tr. 6-10.) Plaintiff then timely filed a complaint with this court. (Dkt. 1.) The case is now ripe for review under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
B. Factual Background and the ALJ's Decision
Plaintiff, who was born in 1973, claimed disability beginning on April 22, 2017. (Tr. 54, 63, 77.) Plaintiff has a limited education and past relevant work experience as a daycare worker. (Tr. 63, 81.) Plaintiff alleged disability due to seizures, insomnia, depression, and poor vision. (Tr. 130, 133.)
In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial gainful activity since April 22, 2017, the alleged onset date. (Tr. 57.) After conducting a hearing and reviewing the evidence of record, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine, seizure disorder, partial complex (i.e. poor vision), and obesity. (Tr. 57.) Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 59.) The ALJ then concluded that Plaintiff retained a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following additional considerations:
Function by function, the claimant remains able to lift and or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk 6 hours in a workday, and sit 6 hours in a workday. She can push and/or pull as much as she can lift and/or carry. She can never climb ladders, ropes, or
scaffolds; occasionally climb ramps and stairs; and frequently stoop, kneel, crouch, and crawl. She can have no exposure to unprotected heights or operating a motor vehicle and occasional exposure to moving mechanical parts and vibration.(Tr. 60.) In formulating Plaintiff's RFC, the ALJ considered Plaintiff's subjective complaints and determined that, although the evidence established the presence of underlying impairments that reasonably could be expected to produce the symptoms alleged, Plaintiff's statements as to the intensity, persistence, and limiting effects of her symptoms were not fully consistent with the medical evidence and other evidence of record. (Tr. 63.)
Considering Plaintiff's noted impairments and the assessment of a vocational expert (VE), the ALJ determined that Plaintiff could perform her past relevant work as a daycare worker. (Tr. 63.) Additionally, the VE testified that Plaintiff could perform other jobs existing in significant numbers in the national economy, such as marker, sorter, and small parts assembler. (Tr. 64.) Accordingly, based on Plaintiff's age, education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled. (Tr. 64-65.)
APPLICABLE STANDARDS
To be entitled to benefits, a claimant must be disabled, meaning that the claimant must be unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration (SSA), in order to regularize the adjudicative process, promulgated the detailed regulations currently in effect. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the ALJ must determine, in sequence, the following: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment, i.e., one that significantly limits the ability to perform work-related functions; (3) whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1; and (4) whether the claimant can perform his or her past relevant work. If the claimant cannot perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ to decide if the claimant can do other work in the national economy in view of the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g), 416.920(g).
A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court reviews the Commissioner's decision with deference to the factual findings, no such deference is given to the legal conclusions. Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In reviewing the Commissioner's decision, the court may not decide the facts anew, re-weigh the evidence, or substitute its own judgment for that of the ALJ, even if it finds that the evidence preponderates against the ALJ's decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner's failure to apply the correct law, or to give the reviewing court sufficient reasoning for determining that he or she has conducted the proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
ANALYSIS
Plaintiff challenges the Commissioner's decision and argues the Appeal Council erred in denying review of Plaintiff's additional medical records. (Dkt. 22 at 6.) Plaintiff further moves for remand pursuant to sentence six of 42 U.S.C. § 405(g). (Id. at 9.) For the reasons that follow, Plaintiff's contentions do not warrant reversal or remand.
A. New Evidence Submitted to Appeals Council
Plaintiff argues the Appeals Council erred when it determined that records Plaintiff submitted after the ALJ's decision was rendered were not chronologically relevant. (Dkt. 22 at 6.) In response, Defendant argues that the Appeals Council was correct to find the records not chronologically relevant because they do not relate to the period at issue. (Dkt. 23 at 6.)
“‘With a few exceptions, a claimant is allowed to present new evidence at each stage of the administrative process,' including before the Appeals Council.” Washington v. Soc. Sec. Admin., Comm'r, 806 F.3d 1317, 1320 (11th Cir. 2015) (quoting Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)). The Appeals Council, while not required to make specific findings of fact, must consider additional evidence that is new, material, and chronologically relevant. Ingram, 496 F.3d at 1261 (stating that 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'”). “[E]vidence is ‘chronologically relevant' if it relates to the period on or before the date of the ALJ's hearing decision.” Washington v. Soc. Sec. Admin., Comm'r, 791 Fed.Appx. 871, 876 (11th Cir. 2019) (citing 20 C.F.R. § 416.1470(a)(5)). Evidence is “material if a reasonable possibility exists that the evidence would change the administrative result.” Washington, 806 F.3d at 1321. If the Appeals Council does not consider new, material, and chronologically relevant evidence, “it commits legal error and remand is appropriate.” Id. Alternatively, when the Appeals Council considers new evidence but denies review, the court decides whether the new evidence “render[s] the Commissioner's denial of benefits erroneous.” Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 785 (11th Cir. 2014); Ingram, 496 F.3d at 1262.
Plaintiff submitted the following evidence to the Appeals Council:
(1) Treatment records from Dr. Raj Eliazer dated July 22, 2019 to October 28, 2019 (Tr. 25-42); and
(2) Emergency room records from Advent Health dated October 15, 2019 (Tr. 15-24).
The Appeals Council found that these records were not chronologically relevant. (Tr. 7.) The relevant period for Plaintiff's claims for disability extended from April 22, 2017, the alleged onset date, through June 12, 2019, the date of the ALJ's decision. (Tr. 55, 57.) The evidence above does not relate to this relevant period. Hargress v. Soc. Sec. Admin., Comm'r, 883 F.3d 1302, 1309 (11th Cir. 2018) (“New evidence is chronologically relevant if it relates to the period on or before the date of the ALJ's hearing decision.”) (punctuation and citation omitted).
Dr. Eliazer's treatment records noted above consist of three follow-up appointments with Plaintiff dated July 22, 2019 (Tr. 29-33), October 21, 2019 (Tr. 3437), and October 28, 2019 (Tr. 38-42). The record for the July 22, 2019 follow-up appointment indicates that Plaintiff's seizure medicine was increased and that she “has not had a generalized seizure.” (Tr. 30.) Her neurologic exam yielded negative results. (Tr. 30, 32.) At the October 21, 2019 follow-up appointment, Dr. Eliazer noted that despite Plaintiff being directed to take 1200 mg of her seizure medication twice a day, she reported only taking 900 mg daily. (Tr. 35.) Dr. Eliazer further noted that “[i]n this setting patient reports she had a breakthrough seizure.” (Tr. 35.) Plaintiff was again requested to take the 1200 mg dosage twice a day. Her neurologic exam that day yielded negative results. (Tr. 35, 37.) Lastly, the October 29, 2019 record reflects that Plaintiff attended the appointment to clarify the dosage of her seizure medication. (Tr. 39.) Her neurologic exam again yielded negative results. (Tr. 39, 41.)
Notably, each record includes a copied-over summary from Plaintiff's past follow-up appointments with Dr. Eliazer that appear in the “Chief Complaint” portion of the record. Upon each follow-up appointment, it appears that notes regarding that appointment are added to this section.
There is no dispute that Dr. Eliazer's records are new. However, to be chronologically relevant, they must relate to a period on or before the date of the ALJ's decision. See Hargress, 883 F.3d at 1309. Dr. Eliazer's treatment records from July 22, 2019 to October 28, 2019 do not. See Carlton v. Comm'r of Soc. Sec., No. 8:20-cv-1423-DNF, 2021 WL 5002733, at *4 (M.D. Fla. Oct. 28, 2021) (“While it is clear that Plaintiff suffers from epilepsy, these June 2019 seizures do not specifically relate to any of the past seizures.”). Rather, the records reflect treatment that Plaintiff received after the period at issue ended. Moreover, the records do not include any opinion made by Dr. Eliazer that relates back to Plaintiff's condition during the relevant period or address Plaintiff's limitations. See Washington, 806 F.3d at 1322 (finding evidence chronologically relevant because doctor relied on prior medical history of hallucinations that pre-dated the ALJ's decision to form an opinion); Clough v. Soc. Sec. Admin., Comm'r, 636 Fed.Appx. 496, 498 (11th Cir. 2016) (holding evidence chronologically relevant because doctor's evaluation relied on history of epilepsy dating back to when claimant was a child). Instead, the records demonstrate that Dr. Eliazer determined the frequency of Plaintiff's seizures during periodic checkups and adjusted her medication accordingly. (Tr. 28-42.) See also Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (“An implicit requirement is that the new evidence pertain to the time period for which benefits are sought, and that it not concern later-acquired disabilities or subsequent deterioration of a previously non-disabling condition.”).
Likewise, although the Advent Health emergency department record dated October 15, 2019 (Tr. 16-24) is new, it does not relate to the relevant period. The record shows that Plaintiff presented to the emergency room with head and neck pain as a result of a motor vehicle accident while she was riding on a bus that day. (Tr. 20.) Nothing in the record addresses Plaintiff's impairments and limitations during the relevant period. See Lindsey v. Comm'r of Soc. Sec., 741 Fed.Appx. 705, 712 (11th Cir. 2018) (holding that newly submitted medical records were not relevant because they only related to the claimant's treatment after the ALJ's decision and they did not change “the picture of what his symptomology was like before the ALJ's decision”). As such, the court finds the Advent Health records not chronologically relevant. Accordingly, because the medical records submitted by Plaintiff after the ALJ's decision are not chronologically relevant, the Appeals Council did not err.
Moreover, even if the treatment and emergency room records were chronologically relevant, they are not material in that they do not contain information that has the reasonable probability of changing the administrative outcome. Hargress, 883 F.3d 1302 at 1309 (citing Washington, 806 F.3d at 1321). As discussed above, the records do not contain any additional opinions or set forth any new limitations on Plaintiff's ability to work. Rather, the records merely reflect the same symptoms and behaviors already considered by the ALJ in that Plaintiff suffered from periodic seizures, was treated for seizure disorder, was non-compliant with her medication, and that her provider adjusted her medication when necessary. (Tr. 30-41, 451-584, 585- 607, 609-42, 681-700, 719-64, 768-816.) Thus, the new records only corroborate the ALJ's reasoning in finding Plaintiff not disabled. See Griffin v. Comm'r of Soc. Sec., 723 Fed.Appx. 855, 858 (11th Cir. 2018) (holding that new medical evidence was not material because it was consistent with the previous medical records already considered by the ALJ and would not have changed the ALJ's decision). Therefore, because the new records are not chronologically relevant nor material, they do not undermine any of the ALJ's findings. See Mitchell, 771 F.3d at 785 (“The additional evidence was either cumulative of the evidence before the ALJ or was not chronologically relevant, and none of it undermined the substantial evidence supporting the ALJ's decision.”)
B. Remand Under Sentence Six of 42 U.S.C. § 405(g)
Plaintiff additionally seeks remand pursuant to sentence six of 42 U.S.C. § 405(g). (Dkt. 22 at 9.) In support of this request, Plaintiff offers two additional treatment records from Dr. Eliazer, dated January 29, 2020 and July 23, 2020 (Dkt. 22-1), that were not submitted to the Appeals Council and not part of the administrative proceedings. Plaintiff contends remand is warranted because the records are new and material. (Dkt. 22 at 10.)
Where evidence is first presented to the district court, the court may consider only whether the newly discovered evidence warrants remand to the Commissioner under sentence six of 42 U.S.C. § 405(g). See Ingram, 496 F.3d at 1267 (“[A] sentence six remand is available when evidence not presented to the Commissioner at any stage of the administrative process requires further review.”). Sentence six of § 405(g) provides that the court may “order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). To prevail on a motion seeking remand under sentence six, a plaintiff must establish “(1) there is new, noncumulative evidence; (2) the evidence is ‘material,' that is, relevant and probative so there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for the failure to submit the evidence at the administrative level.” Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986); see also Vega v. Comm'r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001). All three requirements must be met to warrant remand under sentence six on a plaintiff's motion. See Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991) (“Under sentence six, the district court may remand in light of additional evidence without making any substantive ruling as to the correctness of the [Commissioner's] decision, but only if the claimant shows good cause for failing to present the evidence earlier.”).
1. Noncumulative Evidence
The Commissioner contends that the newly submitted treatment records are cumulative evidence of Plaintiff's ongoing treatment with Dr. Eliazer from April 2017 through June 2019. (Dkt. 23 at 14.)
Plaintiff's newly submitted records reflect additional treatment by Dr. Eliazer from two follow-up appointments on January 29, 2020 and July 23, 2020 (the 2020 records). (Dkt. 22-1.) These records, however, are cumulative since they show the same condition and treatment as Dr. Eliazer's records that were before the ALJ. For example, the 2020 records show that Dr. Eliazer was treating Plaintiff for her seizure disorder. (Id.) These are cumulative of treatment records from Dr. Eliazer that are part of the administrative record, which also reflect that Dr. Eliazer treated Plaintiff for her seizure disorder. (Tr. 587-602, 615-22, 632-41, 719-64.) The 2020 records do not demonstrate that Dr. Eliazer formed any new opinion, diagnosed any new conditions, or limited Plaintiff's ability to work. (Dkt. 22-1); see generally Collins ex rel. L.R. v. Kijakazi, No. 8:20-cv-1419-T-SPF, 2022 WL 354720, at *3 (M.D. Fla. Feb. 7, 2022) (“[E]vidence of a condition that existed prior to the ALJ's hearing, but was not discovered until afterward, is new and non-cumulative.”) (citing Vega, 265 F.3d at 1218-19). Moreover, the ALJ's decision denying benefits reflects that the ALJ already accounted for Plaintiff's seizure disorder by thoroughly considering all symptoms consistent with “State agency medical and psychological consultants” and “clinical and objective findings.” (Tr. 60, 63); cf. Burgos v. Kijakazi, No. 8:20-cv-2497-AEP, 2022 WL 843594, at 5* (M.D. Fla. Mar. 22, 2022) (finding evidence cumulative because it was “already considered and accounted for by the ALJ in the decision” and the “ALJ thoroughly considered” and “comprehensively discussed” plaintiff's “treatment for all her mental impairments”). As such, the court finds that these treatment records do not present new, noncumulative medical evidence that could form the basis for remand.
Plaintiff has thus failed to establish one of the three requirements under sentence six, and remand on that basis is therefore unavailable. Nonetheless, the court will address the other requirements.
2. Good Cause
As noted above, the records submitted to the court relate to two follow-up appointments with Dr. Eliazer on January 29, 2020 and July 23, 2020. (Dkt. 22-1.) The Appeals Council denied review on May 4, 2020. (Tr. 6-14.) At the outset, Plaintiff has established good cause for not submitting the July 2020 record earlier since that record did not exist during the administrative proceedings. See Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir. 1985) (citing Burton v. Heckler, 724 F.2d 1415, 1418 (9th Cir. 1984) (“Good cause for failing to present evidence earlier may exist where . . . the evidence did not exist at the time of the administrative proceedings.”); Onge v. Comm'r of Soc. Sec., No. 2:19-cv-84-FtM-66NPM, 2020 WL 6729411, at *6 (M.D. Fla. Oct. 30, 2020) (finding good cause because “evidence dated after the Appeals Council's final decision . . . could not have been submitted to the Commissioner prior to that decision.”). However, Plaintiff does not explain why the January 29, 2020 treatment report was not submitted to the Appeals Council. Therefore, Plaintiff has not established good cause for why the January record was not submitted at an earlier stage. See Jones v. Comm'r of Soc. Sec., No. 8:19-cv-1415-T-NPM, 2020 WL 8669680, at *4 (M.D. Fla. Nov. 30, 2020) (finding no good cause where plaintiff possessed evidence but could not explain why he failed to submit it to the Appeals Council); Culpepper v. Colvin, No. 2:13-cv-1015-LSC, 2014 WL 3889800, at *6 (N.D. Ala. Aug. 6, 2014) (finding no good cause where the plaintiff chose to submit some records to the Appeals Council but not others). As such, good cause only exists as to the July 23, 2020 record being submitted late.
3. Material Evidence
The court finds that the new records before the court are not material because there is no reasonable possibility that they would change the administrative result. In the decision, the ALJ found Plaintiff's seizure disorder to be a severe impairment. (Tr. 57.) In assessing the RFC, the ALJ noted that Plaintiff had seizures when she was not compliant with her medication. (Tr. 61, 62.) However, when compliant with medication, the ALJ noted that Plaintiff was seizure-free for “quite a long time.” (Tr. 63.) As a result, the ALJ determined that the RFC appropriately reflected the limits of Plaintiff's ability to work. (Tr. 62.)
To the extent Plaintiff argues that insurance issues were the cause for her noncompliance with medication, Plaintiff fails to develop this argument or clarify this issue in her brief. See Davis v. Jones, 506 F.3d 1325, 1330 n.8 (11th Cir. 2007) (holding that failing to develop argument in a brief abandons that issue).
Dr. Eliazer's January 29, 2020 report would not change the administrative result as it reflects that Plaintiff's condition improved with medication. Specifically, the record reflects that Plaintiff “has been event free on the increased doses of medication” and “will continue [the seizure medication] 1200 mg twice a day.” (Dkt. 22-1 at 7.) As such, the court finds that this record would not alter the result and is thus not material.
The July 23, 2020 report would also not change the administrative result as it does not provide any new insight or demonstrate that Plaintiff's condition during the relevant time period was actually more severe than the ALJ found. Specifically, the record evidence here does not show a significantly changed condition prior to the date of ALJ's decision on June 7, 2019 and, at most, shows a worsening condition thereafter. See McCartt v. Astrue, No. 3:11cv217/EMT, 2012 WL 3869548, at *14 (N.D. Fla. Sept. 6, 2012) (“Evidence of deterioration of any previously-considered condition(s) may subsequently entitle a claimant to benefit from a new application, but it is not probative of whether the claimant was disabled during the specific period under review.”) Indeed, although the July 23, 2020 record indicates that Plaintiff had two interim seizures, the record does not indicate whether the seizures occurred due to medication non-compliance. (Dkt. 22-1 at 1-4.) The report also does not indicate the severity of Plaintiff's seizures (i.e. grand mal or minor seizures). (Id.) According to the VE, minor seizures, unlike grand mal seizures, would not affect employability. (Tr. 100.) Consequently, the record does not provide any new evidence regarding Plaintiff's employability. See Ziegler v. Comm'r of Soc. Sec., No. 2:15-cv-538-FtM-99CM, 2017 WL 875786, at *2 (M.D. Fla. Mar. 6, 2017) (finding new, material evidence because “[p]rior to the ALJ's decision, the record was devoid of [plaintiff's] cognitive or mental functional limitations since adolescence” and “[t]herefore, it is reasonably possible that this new evidence could change the administrative outcome.”). Moreover, Plaintiff was prescribed additional medication and her neurological examination yielded normal results. (Dkt. 22-1 at 4.) Since the July 23, 2020 record does not show a significantly changed condition prior to the date of the ALJ's decision, the record would not change the administrative result. See Enix v. Comm'r of Soc. Sec., 461 Fed.Appx. 861, 864 (11th Cir. 2012) (holding that new evidence in the form of treatment notes that show a previous condition, such as seizures, “substantially deteriorating” is not sufficient to warrant a sentence six remand). Therefore, the court finds the evidence to not be material.
In sum, Plaintiff has failed to establish that the new records are noncumulative and material and that good cause exists to warrant consideration of the January record. Thus, Plaintiff has failed to meet her burden to obtain a remand pursuant to sentence six of 42 U.S.C. § 405(g).
CONCLUSION
Accordingly, after due consideration and for the foregoing reasons, it is ORDERED:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk of Court is directed to enter final judgment in favor of the Commissioner and close the case.
ORDERED.