Opinion
CASE NO. 2:09-CV-509-FtM-36SPC.
August 27, 2010
ORDER
THIS CAUSE came on for consideration upon the Report and Recommendation entered by Magistrate Judge Sheri P. Chappell on June 23, 2010 (Dkt. 20). Judge Chappell recommends affirming the decision of the Commissioner of Social Security, thereby denying Plaintiff's request for disability benefits (Dkt. 20, p. 26). Plaintiff filed objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 6.02 of the Middle District of Florida on July 7, 2010 (Dkt. 21). Defendant filed a response to Plaintiff's objections on July 14, 2010 (Dkt. 22).
I. PROCEDURAL HISTORY
The Court adopts the procedural history outlined in the Report and Recommendation (Dkt. 20, p. 2), but expands herein on key points. Plaintiff's application for disability benefits was denied in April 2006. Plaintiff then requested and appeared for a hearing before the Administrative Law Judge ("ALJ") in February 2009. After the ALJ issued an unfavorable decision the following month, Plaintiff filed a request for review of the hearing decision and submitted a supporting brief to the Appeals Council on May 5, 2009. In his brief to the Appeals Council, Plaintiff states that "the ALJ erred by failing to accord proper deference to the opinions of Dr. [Michele] Candelore," Plaintiff's treating physician (Tr. 9). Plaintiff directs the Appeals Council's attention to a letter prepared by Dr. Candelore that was prepared on March 11, 2009 following the hearing before the ALJ. Id. Plaintiff further states that "the ALJ's opinion is not based on substantial evidence, especially in light of the fact that Dr. Candelore's assessments (which should be accorded controlling weight as discussed above) unequivocally indicate that the claimant is credible. . . ." (Tr. 11). Upon review of Plaintiff's arguments presented in the brief, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 2-3).
II. PLAINTIFF'S OBJECTION — NEW EVIDENCE
III. STANDARD
Ingram v. Comm'r of Soc. Security,496 F.3d 1253126120 C.F.R. § 404.970Id.20 C.F.R. § 404.970Id. Id. See Burgin v. Comm'r of Soc. Security,2010 U.S. Dist. LEXIS 61472Deal v. Comm'r of Soc. Security,2009 U.S. Dist. LEXIS 81679 see also Chiress v. Comm'r of Soc. Security, 2010 U.S. Dist. LEXIS 63961 Galino v. Comm'r of Soc. Security, 2009 U.S. Dist. LEXIS 27157
The Court notes that some opinions have held that the court does not need to consider new evidence submitted to the Appeals Council that was not considered by the ALJ. In those instances, the plaintiff only challenges the denial of the benefits by the ALJ and not the denial of review of the ALJ's decision by the Appeals Council. See Tenney v. Astrue, No. 6:07-cv-855-Orl-DAB, 2008 U.S. Dist. LEXIS 62905, at *11 (M.D. Fla. Aug. 18, 2008) ("[T]he court must review whether the decision to deny benefits is supported by substantial evidence in the record as a whole, including evidence submitted to the Appeals Council, if the plaintiff challenges the Appeals Council's decision to deny review despite receipt of the post-ALJ information.") (italics in original) (underline added); Hummel v. Astrue, No. 8:06-CV-725-T-EAJ, at *18-19 (M.D. Fla. Aug. 30, 2007) ("To the extent Plaintiff is challenging the ALJ's decision to deny benefits, but not the Appeals Council's decision to deny review of the ALJ's decision, the court need not consider Dr. DeGeronimo's November 2005 opinion (submitted to the Appeals Council but not the ALJ)."). Although it is not readily apparent whether Plaintiff is challenging the ALJ's denial of benefits and the Appeal Council's denial of Plaintiff's request to review the ALJ's decision (see Dkt. 15, pp. 23-24), the Court considers the new evidence as part of the entire record.
IV. ANALYSIS
At the outset, the Court finds that the letter from Dr. Candelore, dated March 11, 2009, is not new evidence. The letter merely reiterates and clarifies Dr. Candelore's opinions, which were already a part of the record, considered, and rejected by the ALJ (Tr. 174-75, 187).
Assuming arguendo that the letter was new evidence, here, the ALJ found that Dr. Candelore's opinion, as the treating physician, did not warrant controlling weight for several articulated reasons, including the determination that Dr. Candelore's opinion was not consistent with the medical record as a whole and that the opinion was conclusory because Dr. Candelore failed to provide adequate explanation of its basis (Tr. 23). Although Dr. Candelore did provide a more detailed outline of the basis of her opinion in the letter of March 11, 2009, this evidence does not negate or challenge the fact that her opinion, according to the ALJ, was not consistent with the medical record as a whole. Therefore, the Court finds that the new evidence submitted to the Appeals Council does not provide grounds for remanding the case or reversing the ALJ's decision. Further, the Appeals Council considered this new evidence and made the determination that there was no reason to review the ALJ's decision (Tr. 2). The new evidence did not provide a basis for changing the ALJ's decision. Consequently, the Court holds that the ALJ's decision to deny Plaintiff's request for benefits should be affirmed. Plaintiff's objection to the Report and Recommendation based on new evidence is without merit.
Having considered Plaintiff's Complaint (Dkt. 1), Defendant's Answer to the Complaint (Dkt. 12), Plaintiff's Memorandum in Opposition to the Commissioner's decision (Dkt. 15), Defendant's Memorandum in Support of the Commissioner's decision (Dkt. 18), the Report and Recommendation, Plaintiff's Objections, and Defendant's Response, and undertaking a de novo review of the record, the Court finds that the Report and Recommendation should be confirmed with the inclusion of the Court's analysis of the new evidence submitted to the Appeals Council.
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1. The Magistrate Judge's Report and Recommendation (Dkt. 20) is ADOPTED, CONFIRMED, and APPROVED and is made a part of this order for all purposes.
2. The decision of the Commissioner is AFFIRMED.
3. The Clerk is directed to enter judgment accordingly and to close the file.DONE AND ORDERED at Ft. Myers, Florida, on August 27, 2010.