Opinion
CV 122-064
02-08-2023
ZAVIER RASARD SMEDLEY, Plaintiff, v. KILOLO KIJAKAZI, Defendant.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA.
Plaintiff appeals the decision of the Acting Commissioner of Social Security (“the Commissioner”) denying him application for Disability Insurance Benefits (“DIB”) under the Social Security Act. Upon consideration of the briefs submitted by both parties, the record evidence, and the relevant statutory and case law, the Court REPORTS and RECOMMENDS the Commissioner's final decision be AFFIRMED, this civil action be CLOSED, and a final judgment be ENTERED in favor of the Commissioner.
I. BACKGROUND
Plaintiff applied for DIB on December 30, 2019, alleging a disability onset date of November 2, 2015. Tr. (“R.”), doc. no. 6, pp. 232, 252. Plaintiff was twenty-nine years old at his alleged disability onset date and thirty-six years old at the time the Appeals Council (“AC”) denied review of the decision currently under consideration. R. 1, 232. Plaintiff alleged disability based on the following conditions: sarcoidosis, ocular sarcoidosis bilateral, musculoskeletal sarcoidosis, chronic fatigue, and public anxiety. R. 256. Plaintiff completed four or more years of college and accrued work history in the Air Force, working as a janitor until his disability onset date. R. 257.
The Social Security Administration denied Plaintiff's application initially and on reconsideration. R. 177-80, 182-85. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and the ALJ held a hearing by telephone on December 10, 2020. R. 29-114, 18687, 189-206. At the hearing, the ALJ heard testimony from Plaintiff, acting pro se, as well as from Joel Leonard, a Vocational Expert (“VE”). R. 29. On February 23, 2021, the ALJ issued an unfavorable decision.
Applying the sequential process required by 20 C.F.R. §§ 404.1520, the ALJ found:
1. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of November 2, 2015 through his date last insured of December 31, 2020 (20 CFR 404.1571 et seq.).
2. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease, lumbar spine; bilateral pes planus; and, sarcoidosis (20 CFR 404.1520(c)).
3. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
4. Through the date last insured, the claimant had the residual functional capacity (“RFC”) to perform light workas defined in 20 CFR 404.1567(b) except in
that the claimant can frequently stoop, kneel, crouch, crawl, and balance. He can frequently climb ramps or stairs, and occasionally climb ladders, ropes, or scaffolds. He can frequently avoid hazards such as unprotected heights and dangerous machinery. He can tolerate occasional exposure to dust, fumes, gases, odors, or pulmonary irritants. He can tolerate occasional exposure to extremes of wetness, humidity, heat or cold. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
5. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)). Therefore, The claimant has not been under a disability, as defined in the Social Security Act, at any time from November 2, 2015, the alleged onset date, through December 31, 2020, the date last insured. (20 CFR 404.1520(g)).R. 12-24.
“Light work” is defined as:
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. §§ 404.1567(b).
When the AC denied Plaintiff s request for review of this unfavorable decision on March 17, 2022, (R. 1), the Commissioner's decision became “final” for the purpose of judicial review. 42 U.S.C. § 405(g). On May 17, 2022, Plaintiff filed pro se this civil action requesting reversal or remand of the adverse decision of the ALJ. (Doc. no. 1.) Plaintiff has submitted ten filings since, including a brief and an amended brief. (See doc. nos. 8, 11-15, 17, 19-21.) Giving a liberal construction to Plaintiff s pro se amended brief and related filings, the Court concludes Plaintiff is arguing the ALJ erred by failing to support his decision with substantial evidence; not finding additional severe impairments or considering impairments in combination; not finding the impairments met the listings; incorrectly ruling on subjective complaints; failing to consider RFC assessments from Drs. John Brice and James K. Smith; applying incorrect law “towards Plaintiff s back”; and failing to consider Plaintiff's EMT visits. (See doc. nos. 12, 13, 19.) The Commissioner maintains the administrative decision is supported by substantial evidence and should therefore be affirmed. (See doc. no. 19 (“Comm.'s Br.”).)
II. STANDARD OF REVIEW
Judicial review of social security cases is narrow and limited to the following questions: (1) whether the Commissioner's findings are supported by substantial evidence, and (2) whether the Commissioner applied the correct legal standards. Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). When considering whether the Commissioner's decision is supported by substantial evidence, the reviewing court may not decide the facts anew, reweigh the evidence, or substitute its judgment for the Commissioner's. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Notwithstanding this measure of deference, the Court remains obligated to scrutinize the whole record to determine whether substantial evidence supports each essential administrative finding. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
The Commissioner's factual findings should be affirmed if there is substantial evidence to support them. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). Substantial evidence is “more than a scintilla, but less than a preponderance: ‘[i]t is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.'” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth, 703 F.2d at 1239). If the Court finds substantial evidence exists to support the Commissioner's factual findings, it must uphold the Commissioner even if the evidence preponderates in favor of the claimant. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). Finally, the Commissioner's findings of fact must be grounded in the entire record; a decision that focuses on one aspect of the evidence and disregards other contrary evidence is not based upon substantial evidence. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986).
The deference accorded the Commissioner's findings of fact does not extend to his conclusions of law, which enjoy no presumption of validity. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991) (holding that judicial review of the Commissioner's legal conclusions are not subject to the substantial evidence standard). If the Commissioner fails either to apply correct legal standards or to provide the reviewing court with the means to determine whether correct legal standards were in fact applied, the Court must reverse the decision. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
Although the Court liberally construes pro se briefs, “issues not briefed on appeal by a pro se litigant are deemed abandoned.” Gamble v. Comm'r of Soc. Sec., 685 Fed.Appx. 889, 890 (11th Cir. 2017) (per curiam) (citing Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam)). “To avoid abandonment, a party must plainly and prominently raise a claim or issue.” Anglin v. Soc. Sec. Admin., 602 Fed.Appx. 483, 484 (11th Cir. 2015). Plaintiff provides little substantive argument and makes no citations to the record or case law throughout his scattered filings, only two of which are titled as briefs. (See doc. no. 7, p. 2 (ordering Plaintiff to submit a brief containing arguments supported by specific references to the record and legal authority).) After consideration of all of his filings, the Court finds Plaintiff only develops his arguments regarding (A) whether his impairments were severe and met the listings; (B) the ALJ's bias; and (C) Dr. Brice and Dr. Smiths' RFC assessments. The Court deems all other arguments abandoned and will confine its analysis to these three contentions.
A. Whether the ALJ Erred in Determining Whether Plaintiff's Impairments Were Severe and Did Not Meet a Listing
1. The Sequential Evaluation Process
The Eleventh Circuit has outlined the five-step sequential process for evaluating a claim for disability benefits as follows:
1. Is the individual performing substantial gainful activity;
2. Does she have a severe impairment;
3. Does she have a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;
4. Can she perform her past relevant work; and
5. Based on her age, education, and work experience, can she perform other work of the sort found in the national economy.Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004) (citing 20 C.F.R. § 404.1520).
At step one, if the claimant is doing substantial gainful activity, the process stops, and a claimant is determined to be “not disabled.” Id. If the claimant is not doing substantial gainful activity, the process proceeds to step two. Id. At step two, the regulations instruct that a severe impairment is one which significantly limits one's ability to perform “basic work activities.” 20 C.F.R. § 404.1522(a) (“An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.”). Basic work activities involve “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522. Examples include:
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of j udgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.Id. The severity test has been described “as a de minimis requirement which only screens out those applicants whose medical problems could ‘not possibly' prevent them from working.” Stratton v. Bowen, 827 F.2d 1447, 1452 & n.9 (11th Cir. 1987) (citation omitted). If the ALJ finds at least one severe impairment, she proceeds to the third step of the analysis. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987); see also Heatly v. Comm'r of Soc. Sec., 382 Fed.Appx. 823, 825 (11th Cir. 2010) (citing Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984)) (holding ALJ must consider all claimant's impairments, severe and non-severe, in combination at step three and in assessing RFC).
At step three of the evaluation process, the Commissioner must determine whether a claimant meets or equals a disability described in the Listing of Impairments, which describes impairments severe enough to prevent a person from performing any gainful activity. Davis v. Shalala, 985 F.2d 528, 532 (11th Cir. 1993). Plaintiff bears the burden of showing that her condition meets or equals a Listing. Castle v. Colvin, 557 Fed.Appx. 849, 852 (11th Cir. 2014) (per curiam); Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987). In order to show that her impairment meets a Listing, Plaintiff needs to satisfy all of the specified medical criteria; “[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “To ‘equal' a Listing, the medical findings must be ‘at least equal in severity and duration to the listed findings. '” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (citation omitted). It is axiomatic that when a claimant's condition meets or equals a Listing, the Commissioner must find the claimant disabled without regard to the claimant's age, education, or previous work experience. 20 C.F.R. §§ 404.1520(d) & 416.920(d).
To determine whether Plaintiff has severe mental impairments that meet a listing during steps two and three, the regulations direct the ALJ to utilize a “special technique” (i.e., PRT) where the ALJ determines what degree of limitation Plaintiff s impairments cause in four broad functional areas known as the paragraph B criteria. 20 C.F.R. § 404.1520a(c)(3-4); Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005) (per curiam); Boris v. Comm'r of Soc. Sec., No. 5:15-CV-434-OC-PRL, 2016 WL 4651377, at *5 (M.D. Fla. Sept. 7, 2016). The ALJ uses these criteria to both determine whether a mental impairment is severe, and whether a severe impairment meets a listing. These areas are (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00E. The ALJ rates a claimant's functional limitations in each of these criteria using a five-point scale from no limitation to extreme limitation. To meet the listing, Plaintiff must have at least one extreme limitation or two marked limitations. See Id. §§ 12.04, 12.06, 12.08, & 12.11.
Plaintiff claims the ALJ erred in steps two and three and makes no specific arguments regarding steps four and five or the RFC. For the reasons explained below, Plaintiff s contentions do not entitle him to remand.
2. Severe Impairments
The ALJ found Plaintiff had four severe impairments: degenerative disc disease, lumbar spine; bilateral pes planus, and sarcoidosis. R. 14. The ALJ further noted several non-severe impairments: depression; anxiety; PTSD; low vision (uveitis secondary to sarcoidosis); migraines; status post right hand/wrist fracture; mechanical strain, left shoulder; Osgood-Schlatter's of the left, knee; hearing loss and tinnitus; erectile dysfunction (ED); and obstructive sleep apnea (OSA). R. 15. Because of a lack of record evidence, the ALJ found Plaintiff s alleged impairment of HIV was non-medically determinable. R. 15.
In briefing, Plaintiff lists the following severe impairments: “Bilateral Lung Sarcoidosis (Both Lungs Impaired), Ocular Sarcoidosis(Right Eye Impairment), Musculoskeletal Sarcoidosis (Enlarged Neck lymph node), Parotid Fever (Uneven Facial Disfiguration), Degenerative-arthritis (Back Inflammation), Chronic Migraines, Chronic Fatigue, Mental Anxiety Disorder and Depression.” (Doc. no. 12, p. 2.) However, in argument, he only explains that the ALJ should have found his sarcoidosis, low vision, migraines, anxiety, and depression severe. In fact, Plaintiff spends much of his briefings explaining how severe his sarcoidosis is, including by submitting an image of his face exhibiting symptoms of sarcoidosis. His point is moot: the ALJ found Plaintiff s sarcoidosis was a severe impairment. The Court will only analyze whether substantial evidence supported the ALJ's decision to deem Plaintiff s low-vision, migraines, anxiety, and depression non-severe.
In finding Plaintiff9 s low-vision non-severe, the ALJ first noted Plaintiff reported a six-week ocular flare that pained and limited his left eye so much that he could not read normal print, could not drive at night, and had to wear sunglasses during the day. R. 76-79. The flare and those limitations were gone by late 2020, though Plaintiff experiences black spots more frequently now that he did before the flare up. R. 79. Plaintiff wears glasses and has been prescribed eye drops (which he uses inconsistently), and evidence shows his vision is 20/20 in both eyes with corrections. R. 79, 319-20, 453-58. He can now drive with little issue and says his hobbies are watching TV and reading. R. 80, 96. The Court finds that substantial evidence supports the ALJ's decision. Plaintiffs response carries little value: he claims he simply ran out of his eye drop prescription, and was warned if he stopped taking the eye drops he would be at risk of blindness, which he believes clearly constitutes a severe impairment. Plaintiff might be correct if he was blind, but Plaintiff is not blind and substantial evidence shows his vision causes little to no functional limitations. The ALJ's decision that Plaintiff has no severe vision-related impairment has substantial evidence in support and should be affirmed.
Plaintiff submits a medical record from March 16, 2021, a month after the ALJ's decision, to show how he was warned failure to use eye drops would result in permanent damage. This evidence was not in the record before the ALJ and is from well after Plaintiff's date last insured of December 31, 2020. See Moore, 405 F.3d at 1211 (explaining Plaintiff must “demonstrate” disability on or before the last date for which she were insured”).
For Plaintiff s migraines, the ALJ noted Plaintiff had two headaches a month, lasting two to three days each, but the ALJ found the medical record unsupportive of the intensity and frequency of his headaches and cited to ample medical visits where Plaintiff made no mention of such severe headaches. See R. 15, 85-87, 320-21, 327-330, 594-97; see also R. 406, 428, 470, 507, 660, 706. Plaintiff also testified medicine resolves his headaches within an hour or two. R. 87. He takes over the counter medicines and has been prescribed Sumatriptan, but took Sumatriptan less frequently over time. R. 85-97.
In opposition to the ALJ's findings, Plaintiff presents a medical record showing he went to the emergency room once for migraines in 2018, described his symptoms just as he did during testimony during the hearing, and was prescribed Sumatriptan. (Doc. no. 12-1, pp. 26-28.) It is unclear whether this evidence-which is really just a recitation of Plaintiff s self-described symptoms-was contained in the record. Plaintiff also argues he stopped frequently taking Sumatriptan because of side effects. In essence, Plaintiff simply views the facts differently than the ALJ. However, the Court's job is not review evidence anew, but to determine whether reasonable person would accept the medical evidence as adequate to support a the ALJ's conclusion. The Court finds ALJ had substantial evidence showing Plaintiff's migraines were non-severe and made no error.
Last, regarding anxiety and depression, Plaintiff argues his mental conditions were severe impairments because the disability determination services (“DDS”) psychological examiner indicated Plaintiff suffered from anxiety and depression. However, diagnosis of a condition does not make that condition severe. Plaintiff also claimed his anxiety and depression were deemed severe by another ALJ in a prior DIB adjudication. The ALJ here analyzed both the DDS evaluation and previous DIB adjudication in both his paragraph B and RFC analysis, explaining the prior DIB adjudication was not persuasive as to severity of Plaintiff's mental impairments in this adjudication because that previous decision was inconsistent with the record here. R. 16, 20, 122-24. The prior DIB adjudication nonetheless found Plaintiff s mental impairments did not meet a listing, though severe. R. 123-24.
Further, the DDS evidence in this case expressly stated that Plaintiff's mental impairments were non-severe. R. 21, 150, 166. The ALJ properly walked through the paragraph B analysis for Plaintiff's mental impairments, finding no limitation in two functional areas, and only mild limitation in the two others, meaning Plaintiff's mental impairments were non-severe. R. 16-17. Plaintiff points to no specific error in this process, other than his disagreement with the result. See Gaddison v. Saul, No. 4:18-CV-0811-JEO, 2020 WL 374621, at *4 (N.D. Ala. Jan. 23, 2020) (affirming while noting Plaintiff “does not even point to which area of functioning in paragraph B she challenges.”). Substantial evidence supports the ALJ's decision, including the DDS evidence and Plaintiff s admitted ability to perform normal day-to-day responsibilities like shop, prepare meals, drive, clean, work at his home, and keep track of appointments and bills. R. 52, 92-95. He has not received treatment for mental health over the past four years, and other evidence, including a 2020 psychological evaluation, showed he had no more than mild limitations due to mental health and was able to socialize, albeit with some limitations. R. 16, 610-613.
Plaintiff simply disagrees with the ALJ's factual findings but leans mainly on his diagnosis rather than evidence showing how his impairments cause functional limitations. “[P]roof of the mere existence of impairments does not prove the extent to which they limit a claimant's ability to work.” Hutchinson v. Astrue, 408 Fed.Appx. 324, 326 (11th Cir. 2011) (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)). As already explained, it is not the Court's role to review factual findings de novo, but rather to determine whether substantial evidence supports the ALJ's finding. Such substantial evidence exists here.
3. Listings
The ALJ reviewed Listings 1.02, Major Dysfunction of a Joint(s) (Due to any Cause), and 1.04, Disorders of the Spine, and found Plaintiff met neither. R. 17. Plaintiff points to no individual issue with the ALJ's analysis of Listings 1.02 and 1.04. He simply and briefly claims his impairments also met the following listings: 14.00 Immune System Disorders for his sarcoidosis; 3.00 Respiratory disorders for his bi-lateral lung bronchi; 1.00 Musculoskeletal System for his lymph node/chronic inflammation; 4.00 Mental Disorders for his anxiety, migraines, and depression; and 8.00 Skin disorders for his parotoid fever. (Doc. no. 12, pp. 3-4.)
First, the only impairment of these the ALJ found severe was Plaintiff's sarcoidosis. His arguments otherwise are either meritless or abandoned, as explained above. If Plaintiff cannot prove these impairments were severe, he likely will be unable to prove they severe enough to meet a listing individually or in combination. See Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004) (explaining claimant must show a severe impairment that meets a listing). Second, The Court can find no mention in the record of Plaintiff himself identifying these listings to the ALJ in his application or during the hearing. The ALJ is not required to specifically address listings nor previously raised by Plaintiff. See Blackmon v. Kijakazi, No. 2:20-CV-00741-CWB, 2022 WL 5199814, at *8 (M.D. Ala. Oct. 5, 2022); see also East v. Barnhart, 197 Fed.Appx. 899, 902 (11th Cir. 2006) (“Although the ALJ must consider all the impairments the claimant alleges in determining whether the claimant is disabled, the ALJ need not scour the medical record searching for other impairments that might be disabling, either individually or in combination, that have not been identified by the claimant.”). Third, Plaintiff only cites to the broad categories of impairments, providing little guidance on which specific listings he believes he meets and making no citations to the record to explain what evidence supports each listing. Though he is pro se, the Court will not parse through the dozens of listings in each category and the hundreds of pages of medical records to make Plaintiff's argument for him.
The only listing specified by Plaintiff in briefing is Listing 14.02, Systemic lupus erythematosus (“SLE”), but as explained, the ALJ does not err by failing to consider a listing Plaintiff did not identify beforehand. Regardless, to meet listing 14.02, Plaintiff must show;
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) or
B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, malaise, or involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.20 C.F.R. Part 404, Subpart P, Appx. 1, Part A, § 14.02. Plaintiff s entire argument is that he “meets and even exceeds written criteria of impairment for his auto-immune disease,” which is bare and unsatisfactory. (Doc. no. 12, p. 4.) It is Plaintiff s responsibility to prove his disability meets a listing, and Plaintiff fails to point to any evidence showing how he meets each of the specific criteria of Listing 14.02. Thus, he does not meet his burden or a listing. See Castle, 557 Fed.Appx. at 852; Sanderlin v. Comm'r of Soc. Sec., No. 2:14-CV-484-FTM-CM, 2015 WL 3627263, at *6 (M.D. Fla. June 10, 2015) (“The burden of establishing that a claimant's impairments meet or equal a listing rests with the claimant, who must produce specific medical findings that satisfy all the criteria of a particular listing.”) (emphasis added). The Court finds substantial evidence supports the ALJ's decision to not find, or even consider, Listing 14.02, which, as already explained, Plaintiff did not even mention during the adjudication. See Keane v. Comm'r of Soc. Sec., 205 Fed.Appx. 748, 750 (11th Cir. 2006) (“There may be an implied finding that a claimant does not meet a listing.”).
B. Bias
Plaintiff directly alleges the ALJ exhibited bias during the hearing when he questioned Plaintiff regarding his discharge from the military because “the line of questioning and the tonality of the conversation” showed the ALJ did not approve of Plaintiff s dishonorable discharge and the ALJ believed those with VA benefits would not request social security. (See doc. no. 13, p. 2.) The ALJ considered Plaintiff s military discharge in the decision, correctly explaining Plaintiff testified the discharge was honorable and for medical reasons while records indicated the discharge was for misconduct. R. 19, 60, 437. Now in his briefing,
Plaintiff admits the discharge as other than honorable-contradicting his statements at the hearing-but still states the ALJ intended to slight his character by including the discrepancy in his decision. Plaintiff does not further explain the basis for his other claim that the ALJ was biased against veterans who apply for social security benefits.
The Social Security Act requires a claimant's hearing be full and fair, and “[a]n administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision.” 20 C.F.R. § 404.940; Miles v. Chater, 84 F.3d 1397, 1400-01 (11th Cir. 1996) (per curiam); Small v. Barnhart, 329 F.Supp.2d 1272, 1275 (N.D. Ala. 2004) (“If an ALJ has a bias against all Social Security claimants, or a particular group of claimants, the individualized consideration of their claims will be lacking.”). Agency adjudicators are entitled to a presumption of integrity and honesty, and a party alleging bias bears the burden of proving bias and overcoming the presumption by showing some specific reason for disqualification. See Schweiker v. McClure, 456 U.S. 188, 195 (1982) (We must start, however, from the presumption that the hearing officers . . . are unbiased.”). If a claimant fears bias by the ALJ, he must notify the ALJ at the earliest opportunity for the ALJ to consider recusal, and he may appeal the ALJ's refusal to recuse to the AC. Jarrett v. Comm'r of Soc. Sec., 422 Fed.Appx. 869, 874 (11th Cir. 2011) (citing 20 C.F.R. § 404.940). When a claimant believes the ALJ's ultimate ruling on benefits is biased, the earliest opportunity to raise the issue is the claimant's appeal with the AC. Miles, 84 F.3d at 1400-01.
The Courts finds no merit to Plaintiff's claims of bias. His only evidence of bias is the ALJ's questioning: his questions regarding Plaintiff's military service and discharge were to determine Plaintiff's work history and whether Plaintiff went through a medical evaluation board review, as Plaintiff then claimed the discharge was for medical reasons. See R. 59-60, 64. If Plaintiff found the ALJ's tone offensive, such an allegation is insufficient to show bias. See Watton v. Astrue, No. CV 110-026, 2011 WL 1980535, at *8 (S.D. Ga. Apr. 21, 2011), (“to the extent that Plaintiff takes issue with the tone of the ALJ's response, he fails to make a showing adequate to give rise to a finding of bias on the part of the ALJ.”), adopted by 2011 WL 1990675 (S.D. Ga. May 20, 2011). Regardless, Plaintiff was required under the regulations to raise bias claims at the earliest opportunity, which here was in his appeal to the AC. His appeal makes no reference to any bias claims. R. 228. The Court finds no merit to Plaintiff's allegations of bias, and therefore no basis for remand.
C. Evidence from Drs. Brice and Smith
Plaintiff submits to the Court two RFC assessments, one by Dr. James K. Smith and the other by Dr. John W. Brice. (Doc. no. 12-1, pp. 31-39; doc. no. 20, p. 2-10.) The existence of neither provides any basis for remand.
1. Dr. Smith
With little discussion, Plaintiff attaches to his amended brief an RFC assessment signed by James K. Smith and dated September 19, 2022. (Doc. no. 12-1, pp. 31-39.) This RFC assessment post-dates the date last insured, the ALJ's and AC's decisions, and the filing of this case.
Because this evidence was not presented at the administrative level, it cannot be considered by the Court when determining whether the Commissioner's decision is supported by substantial evidence. A reviewing court, when presented with new evidence that was never presented for review at the administrative level, may only consider whether the new evidence necessitates remand under sentence six of § 405(g); a reviewing court may not consider the new evidence in determining whether the Commissioner's final decision is supported by substantial evidence. Ingram v. Comm'r of Soc. Sec. Admin, 496 F.3d 1253, 1267-68 (11th Cir. 2007); Norton v. Comm'r of Soc. Sec., 607 Fed.Appx. 913, 917-18 (11th Cir. 2015) (per curiam); see also Wilson v. Apfel, 179 F.3d 1276, 1278-79 (11th Cir. 1999) (evidence attached to appellant's brief not properly before the court) (citing Cherry v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985) (noting general principle that court's review is limited to certified administrative record)); Walters v. Barnhart, 184 F.Supp.2d 1178, 1185 (M.D. Ala. 2001) (“The plaintiff submits to the Court medical records which she did not present to the ALJ or the Appeals Council in support of her disability claim. These records are not part of the administrative record for review by this court.”)
Remand might be necessitated under § 405(g) only if “(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) 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); 42 U.S.C. § 405(g). Regarding materiality, the new evidence must relate to the time period on or before the date of the ALJ's decision, and there must be a reasonable possibility the new evidence would change the administrative result. Lipscomb v. Comm'r of Soc. Sec., 199 Fed.Appx. 903, 907 (11th Cir. 2006); Archer v. Comm'r of Soc. Sec., 176 Fed.Appx. 80, 82 (11th Cir. 2006).
Plaintiff cannot show the Smith RFC assessment is material. The assessment makes general conclusions regarding Plaintiff's functional limitations with no reference to the relevant period, let alone any indication that its September 2022 findings are relevant to Plaintiff s limitations before the ALJ's decision or the date last insured of December 31, 2020.
The Smith RFC assessment would not have changed the administrative result and is therefore not material. Plaintiff also does not have good cause for failing to present this evidence earlier.
The Court notes that simple nonexistence of evidence during the administrative process sometimes may constitute good cause. See Tolbert v. Colvin, No. 5:13-CV-1864-CLS, 2014 WL 3889476, at *2 n.13 (N.D. Ala. Aug. 4, 2014) (explaining debate on whether nonexistence of evidence always constitutes good cause). However, the good cause avenue to considering new evidence “was designed to avoid the danger of encouraging claimants to seek afteracquired evidence, and then use such evidence as an unsanctioned ‘backdoor' means of appeal.” Milano v. Bowen, 809 F.2d 763, 767 (11th Cir. 1987) (internal quotations omitted). Allowing Plaintiff to escape his most recently social security adjudication by simply going to the doctor once more to gather additional evidence (of little value) for briefing would undermine the purpose of the good cause exception. See id; Harris v. Apfel, No. CIV.A.98-0953-MJ-G, 1999 WL 33915955, at *4 (S.D. Ala. Oct. 14, 1999) (“To uphold Congress' intent to discourage claimants from seeking after-acquired evidence as a means of obtaining reversal of an adverse decision, remand in this case must be denied.”). Therefore, Plaintiff has not satisfied the requisites of sentence six remand.
2. Dr. Brice
Dr. Brice filled out an RFC assessment for Plaintiff on February 25, 2020, finding no exertional, postural, manipulative, or communicative limitations, but noting some environmental limitations due to asthma and sarcoidosis. R. 614-619. Plaintiff discusses the Brice RFC assessment frequently throughout his response briefs, but his arguments boil down to one point: he believes the ALJ failed to consider the Brice RFC assessment. (See doc. nos. 19-20.) He is mistaken. Plaintiff initially submitted the Brice RFC assessment to the ALJ without a signature page, and the ALJ told him he would admit the assessment but still required it be signed. R. 43, 45, 108. The signature page was either not submitted or not included in the record, but the unsigned Brice RFC assessment was still reviewed by the ALJ as Exhibit B7F. R. 22, 614-19. The ALJ explained the assessment was minimally persuasive because it was unsigned as well as inconsistent with other, more persuasive medical evidence that showed greater functional limitations, specifically exertional limitations. R. 22. In other words, the ALJ viewed the Brice RFC assessment as more favorable to finding no disability. The Court finds nothing unusual here, and whatever error Plaintiff believes exists is non-prejudicial as the assessment cuts against Plaintiff's disability claims. Regardless, Plaintiff bases his enumeration of error off a false contention, so there is no error.
IV. CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS the Commissioner's final decision be AFFIRMED, this civil action be CLOSED, and final judgment be ENTERED in favor of the Commissioner.
SO REPORTED and RECOMMENDED.