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Noble v. Comm’r of Soc. Sec., 963 F.3d 1317 (11th Cir. 2020), Atty Michael A. Steinberg, Tampa, FL

Plaintiff, a Navy veteran, filed for disability benefits based on a combination of his physical and mental impairments. His claim included evidence of a 80% VA disability rating due to the combined effect of several impairments, and the VA’s award of “individual unemployability.” Id. at 1320-21. The ALJ stated that he was not bound by the VA’s findings and gave it little weight “due to its inconsistency with the objective medical evidence and the other opinion evidence of record.” Id. at 1323. The ALJ denied benefits at step 5, and the district court affirmed. Id.

On appeal, Plaintiff argued the ALJ erred by failing to give the VA’s finding of disability great weight. Id. at 1324. The Court noted this case fell under the “old” version of 20 C.F.R. § 404.1504, which stated that other governmental decisions are not binding on SSA, and SSR 06-03p, which provided that other governmental decisions cannot be ignored and the ALJ must explain how he considered such decisions. Id. The Court noted some tension in its precedent addressing this issue:

On the one hand, we have at least one decision holding that another agency’s disability determination is simply “a factor to be considered,” and the ALJ may decline to follow the other agency’s determination when more recent medical evidence in the record before the ALJ contradicts the other agency’s disability finding. Skeels v. Richardson, 453 F.2d 882, 883 (5th Cir. 1972). On the other hand, we have decisions saying that another agency’s finding that a claimant is disabled is entitled to “great weight”—a term that suggests the other agency’s determination should be afforded some degree of deference. Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984) (internal quotation marks omitted); DePaepe v. Richardson, 464 F.2d 92, 101 (5th Cir. 1972).

Id. at 1325. After setting forth each decision, the Court stated:

We can resolve the apparent tension between Skeels and DePaepe. Skeels recognized that the VA’s determination that a claimant was disabled was a single piece of evidence that a hearing examiner should weigh against other evidence—in that case, medical examinations of the claimant conducted after the VA’s decision. Skeels thus teaches that an ALJ may decline to follow another agency’s disability decision on the ground that the decision is contradicted by more recent medical evidence. When we look at the context in which we made the “great weight” statement in DePaepe, we see that it was in circumstances where the hearing examiner failed to “give any consideration in his findings to the fact that the VA” had determined that the claimant was disabled. 464 F.2d at 101 (emphasis added). Without more, the statement tells us only that an ALJ must consider and discuss the VA’s findings. Importantly, DePaepe and its progeny did not address whether an ALJ is required to defer to the VA’s disability determination when there is contradicting medical evidence in the record. See, e.g., Brady, 724 F.2d at 921 (remanding because the ALJ erred in concluding that the claimant’s impairments were not severe; mentioning the VA’s disability decision only in passing); Rodriguez, 640 F.2d at 685 (vacating and remanding because the ALJ erred in ignoring the claimant’s credible testimony that he could not return to his previous job when “nothing in the medical evidence refute[d]” the claimant’s testimony). By recognizing that an ALJ must discuss a decision from another decision finding the claimant disabled but may refuse to follow the other agency’s decision when the record contains more recent medical evidence supporting a conclusion that the claimant is not disabled, we can resolve the apparent conflict between Skeels and DePaepe.

Requiring an ALJ to consider and discuss another agency’s findings is consistent with DePaepe’s statement that the VA’s decision must be given “great weight” because it requires an ALJ to give a special type of consideration to such evidence. In general, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). The “great weight” standard functions as an exception to this general rule by requiring an ALJ to discuss another agency’s decision finding the claimant disabled.

Harmonizing Skeels and DePaepe in this way also is consistent with the relevant regulations and the Commissioner’s rule in place at the time of the ALJ’s decision here; they indicated that an ALJ must consider the VA’s decision but is not bound by it. See 20 C.F.R. § 404.1504 (2016) (explaining that a decision by the VA is “not binding on us”); SSR 06-03p, 2006 SSR LEXIS 5 at *17, 2006 WL 2329939, at *2 (stating that “evidence of a disability decision by another governmental . . . agency cannot be ignored”). In addition, our interpretation respects that the question of whether a claimant is disabled is reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)(1) (recognizing that issue of whether a claimant is disabled is reserved to the Commissioner). If the “great weight standard” meant that an ALJ was required to follow the other agency’s decision that the claimant was disabled even when the medical evidence indicated to the contrary, that would be tantamount to telling the Commissioner that he had to follow the other agency’s determination, which would impinge on the Commissioner’s authority to determine whether a claimant is disabled.

After resolving the tension in our precedent, we conclude that it directs courts to consider two questions in deciding whether an ALJ who declined to follow another agency’s decision that a claimant was disabled nevertheless properly considered that decision. First, the court must ask whether the ALJ’s decision shows that she considered the other agency’s decision. See DePaepe 464 F.2d at 101. If the ALJ’s decision does not discuss the other agency’s decision, the case must be remanded to the Commissioner for consideration of the other agency’s decision. But if the ALJ discussed the other agency’s decision, the court moves on to the second step of the analysis: whether substantial evidence in the record supports the ALJ’s decision to depart from the other agency’s decision. See Skeels, 453 F.2d at 883. If there is substantial evidence in the record, then the ALJ’s decision should be affirmed. Id

Id. at 1328-30. Applying the above questions, the Court found (1) the ALJ’s decision on its face shows that the ALJ considered the VA’s decision and (2) substantial evidence supported the ALJ’s conclusion that the VA’s finding was inconsistent with the more recent medical evidence. Affirmed.

Samuels v. Acting Comm’r of Soc. Sec., 959 F.3d 1042 (11th Cir. 2020), Attys Daniel S. Jones and John Moran, New York, NY, and Stacey B. DeVeaux, Ft. Lauderdale, FL

Plaintiff applied for benefits based on bipolar disorder; the ALJ denied benefits at step 4 with alternative step 5 findings. The Court vacated the district court’s judgment and remanded because the ALJ did not have the benefit of its decision in Schink v. Comm’r of Soc. Sec., 935 F.3d 1245 (11th Cir. 2019) (per curiam), which may alter the step 4 analysis. Id. at 1044.

“As we said in Schink, the ALJ must consider the episodic nature of bipolar disorder. See 935 F.3d at 1267. Evidence that the claimant ‘seemed to be doing better’ during certain times does not support a finding that her impairment is not severe. Id.” Id. at 1046.

The Court found that Plaintiff’s step four arguments may have merit, “[b]ut the Commissioner should have a chance to weigh the evidence in light of our directive in Schink. See 935 F.3d at 1267-68. We therefore remand for further consideration without expressing a view on the ultimate merit of [Plaintiff’s] contention that the ALJ should not have discounted her own opinion and those opinions of her treating physicians.” Id.

Regarding the hypothetical presented to the VE, which Plaintiff also challenged, the Court stated “it does not appear that the hypotheticals accounted for the episodic nature of bipolar disorder. See Schink, 935 F.3d at 1268.” Id. at 1047. The Court found:

In particular, the ALJ did not account for unexcused absences or time spent off-task, which were limitations caused by [Plaintiff’s] bipolar disorder that were reflected in the record. Dr. Flemenbaum opined that [Plaintiff] was ‘moderately limited’ in her ability to complete a normal workweek. The Commissioner’s own expert found that [Plaintiff’s] ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances was ‘markedly limited. Asking the VE to assume that [Plaintiff] could carry out ‘simple work instruction’ and had only ‘occasional interaction’ with the public is not sufficient to communicate [Plaintiff’s] limitations from her bipolar disorder. Cf. Winschel, 631 F.3d at 1181 (reversing the denial of disability benefits because, at step two, ALJ determined impairments limited claimant “in maintaining concentration, persistence, and pace” but wholly failed to include such limitations in hypothetical).

Id. at 1047. Remand.

Meade v. Comm’r of Soc. Sec., 807 Fed. Appx. 942 (11th Cir. Mar. 23, 2020), Atty Enrique Escarraz, III, St. Petersburg, FL

Plaintiff applied for disability benefits based on her panic disorder. She appealed the ALJ’s denial of benefits, and raised two arguments: (1) the ALJ was biased against her, and refused to recuse herself on remand from the Appeals Council; and (2) the ALJ’s denial of her claim was not supported by substantial evidence. While the Court found no basis for her first argument, it agreed with her second argument and reversed and remanded.
The Court began with a discussion of Schink v. Comm’r of Soc. Sec., 935 F.3d 1245 (11th Cir. 2019) (per curiam):

In Schink, we vacated the ALJ’s denial of disability benefits, holding, in relevant part, that the ALJ failed to give good cause for discounting the opinion of the claimant’s two treating physicians while giving substantial weight to the opinion of two evaluative physicians who had never treated the claimant. Id. at 1256, 1260. As part of the ALJ’s finding the treating physicians’ opinions were due little weight, the ALJ found their treatment notes indicated only mild limitations during the claimant’s mental-status examinations. Id. at 1262. We noted the ALJ did not clearly articulate the basis for that conclusion but stated it was unclear how the record could support such a conclusion. Id. We stated some of the claimant’s mental-status examinations were better than others with respect to various metrics, but nevertheless held the alleged inconsistencies within those medical records were insufficient to discount the treating physicians’ opinions because “[i]t is not enough merely to point to positive or neutral observations that create, at most, a trivial and indirect tension with the treating physician’s opinion by proving no more than that the claimant’s impairments are not all-encompassing.” Id. at 1262-63. We also noted the fact the claimant could remain on topic during a conversation on examination was not inconsistent with a finding the claimant suffered from a highly disruptive mood disorder that rendered him incapable of working. Id. at 1263. Finally, we stated the ALJ’s reliance on the claimant’s ability to engage in solitary activities, such as watching television or walking the dog, was not a basis to discount the treating physicians’ opinions, particularly with regard to their opinions regarding the claimant’s ability to interact with others. Id. at 1264.

Id. at 946-47.

The Court then found the ALJ’s decision was not supported by substantial evidence. Beginning with her work history, the ALJ stated that while her pattern of work from the late 1990s onward might have tended to support her disability claim, the evidence was equivocal because there was no corroborating evidence from former coworkers or employers or medical evidence. Id. at 947. However, the Court stated that Plaintiff’s ex-husband stated she began experiencing difficulty at work due to her excessive worrying and fears about leaving the house and then began taking excessive amounts of medication, which supports that her troubled work history was due to her anxiety disorder. Id. The Court found that Plaintiff’s testimony and her ex-husband’s testimony supported her position, and there was no contrary evidence in the record to support the ALJ’s finding that Plaintiff’s work history was not tied to her panic disorder. Id.

Turning to her treating physician’s opinion, the ALJ gave it little weight because Dr. Jones “paradoxically’ stated [Plaintiff] had made some, albeit insignificant, progress under her care, even though he also stated her [GAF] score had decreased from 60 to 50 over the same time period.” Id. at 947-48. The Court, however, stated there was “no inherent contradiction between the idea [Plaintiff] had made some insignificant progress under Dr. Jones’ care while her overall ability to function simultaneously decreased due to the addition of the stress stemming from her divorce.” Id. at 948. The Court that Dr. Jones’ GAF score of 50 was consistent with other scores of 55 and 65 that same year, and so other evidence in the record did not support a finding that his opinion was entitled to little weight. Id. The Court noted that in one treatment note, Plaintiff’s GAF score increased to 75, which was not inconsistent with the other evidence “given the fluctuating nature of [her] anxiety.” Id. And, Dr. Jones explained that her average GAF was 60, which he considered to be a large functional impairment. Id. The Court found the ALJ “did not properly consider his opinion as [Plaintiff’s] treating physician because that one treatment record [showing a GAF of 75] did not make his overall opinion of [Plaintiff] inconsistent with the record such that his opinion could be given little weight across the board.” Id.

Turning to her other treating physician’s opinion, which the ALJ rejected because she was never late or missed appointments, the Court stated “it is unclear how her ability to consistently show up for medical appointments that occurred monthly or every few months was indicative of her ability to reliably report to work on a daily or near-daily basis.” Id. Further, the Court stated “it is unclear why [the ALJ] required corroborating evidence that [Plaintiff] had experienced a panic attack while at work, as the record indicates [her] disorder affected her reliability by inhibiting her ability to regularly report to work, regardless of whether she also suffered from panic attack while at work. Id. (citing Schink, 935 F.3d at 1263-64).

As for the ALJ’s reliance on the lack of eyewitness accounts by medical personnel, the Court noted that Plaintiff submitted supportive statements from four different people, and the ALJ “did not explain why an observation by medical personnel would have been more illuminating, since the core problem with [her] panic disorder as it related to her ability to work was the fact that it frequently prevented her from being able to leave her home.” Id. at 948-49. Remand.

Gossett v. SSA, Comm’r, 812 Fed. Appx. 847 (11th Cir. Apr. 28, 2020), Atty Myron Allenstein

This is an attorney fee case; when Plaintiff was awarded her back benefits of $216,000, the SSA withheld $81,000 as potential attorney fees. Id. at 848. Allenstein spent 15 hours on her appeal, and after remand, the SSA found her disabled. Id. After the favorable decision but before finding out the amount of back benefits, Allenstein moved the district court for $2,850.90 in attorney’s fees under EAJA, based on 15 hours of work at a “reasonable” hourly rate of $190.06. The Commissioner did not oppose this request, and the district court awarded EAJA fees in the requested amount. Id.

Allenstein then moved for attorney fees under 42 U.S.C. § 406(b); after learning the amount of back due benefits and citing his contingency fee agreement, he asked for $78,280.63 in attorney’s fees, which represented 25% of back benefits less the $2,850 in EAJA fees. Id. at 849. The Commissioner opposed this request, stating that $78,000 in fees for 15 hours of work would result in a “windfall” to Allenstein. Id. The district court found that the requested amount for 15 hours of work would result in an effective hourly rate of $5,218.71; the district court found a reasonable rate would be double the prevailing rate ($380.12), and awarded $5,701.80. Id.

On appeal, the Court found that the district court erred in relying on Hayes v. Sec’y of HHS, 923 F.2d 418 (6th Cir. 1990) to assess the reasonableness of his attorney fee request. Id. The Court stated that the Supreme Court resolved a circuit split about the method for determining reasonable attorney fees under § 406(b) in Gisbrecht v. Barnhart, 535 U.S. 789 (2002). In Gisbrecht, the Supreme Court rejected the lodestar method, and found that contingency-fee agreements are “presumptively reasonable”, but that courts could “appropriately reduce[] the attorney’s recovery based on the character of the representation and the results the representative achieved. Id. at 850 (citing Gisbrecht, 535 U.S. at 808).

Here, the Court found the district court’s decision was contrary to Gisbrecht because it looked at Hayes to assess the reasonableness of Allenstein’s contingency-fee agreement; Hayes employed the lodestar method, which was expressly rejected in Gisbrecht. Id. The Court found the district court’s reliance solely on the lodestar method was an abuse of distraction. Id. The Court stated “Gisbrecht calls upon the district court to evaluate factors or circumstances beyond the lodestar calculation, based on the circumstances of [Plaintiff’s] case.” Id. at 851. Thus, the district court’s judgement was vacated and remanded for further proceedings.

Bailey v. Comm’r of Soc. Sec., 802 Fed. Appx. 462 (11th Cir. Jan. 31, 2020), Attys Richard Allen Culbertson and Sarah Fay

Plaintiff applied for disability insurance benefits based on multiple physical impairments. The ALJ found that he could perform light work with limitations, and that he could still perform his past relevant work as a dispatcher. Id. at 463-64. On appeal, Plaintiff argued the ALJ erred in evaluating his treating physicians’ opinions, and also erred in failing to specifying the weight given to medical opinion of Dr. Garewal. Id. at 464.

The Court found that substantial evidence supported the ALJ’s assignment of less weight to his treating physician. Id. at 465. However, it agreed that the ALJ erred by failing to mention or assign weight to Dr. Garewal’s May 15th handwritten note. Id. While an ALJ may disregard a treating physician’s opinion upon a finding of good cause, the ALJ must articulate clearly his reasons for doing so. Id. (citing Winschel, 631 F.3d at 1179). “Here, where the ALJ made no mention of Dr. Garewal’s opinion that [Plaintiff] was unable to work and failed to specify the weight given to that opinion, we cannot ‘determine whether the ultimate decision on the merits of the claim is rational and supported by substantial evidence.’” Id. (quoting Winschel, id.). Dr. Garewal’s handwritten note stated “I am treating [him] for progressive neuropathy which is resulting in weakness, pain, and sensory deficits. I don’t presently think he can work.” Id. While acknowledging that the final determination of disability is reserved to the Commissioner and a physician’s opinion that a person is “unable to work” is not entitled to “special deference” under § 404.1527, nonetheless the Court stated:

We stress, however, that the ALJ must consider all the claimed expert, medical opinions in the record and must specify the weight – including no weight, if applicable – given to each purported medical opinion and the reasons therefor. See id. at §§ 404.1520(e), 404.1527(c); Winschel, 631 F.3d at 1179; see also Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (“[T]he ALJ has a basic obligation to develop a full and fair record.”). We have said that failure to articulate clearly the reasons for giving less weight to the opinion of a treating physician constitutes reversible error. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
Id. at 465-66. Reversed in part and remanded.

Valdez v. Comm’r of Soc. Sec., 808 Fed. Appx. 1005 (11th Cir. Apr. 23, 2020), Atty Michael A. Steinberg, Tampa, FL

Plaintiff was a younger individual with a limited education when he filed for disability benefits based on a combination of physical and mental impairments. While the ALJ found he could no longer work as a master baker, he concluded that there are other simple, sedentary jobs that he can perform, such as lens inserter, lens-block gauger, and order clerk, and denied benefits on this basis. Id. at 1007. Plaintiff raised to arguments regarding the step 5 jobs, which the district court rejected. Id. at 1007-08. He raised the same arguments to the Court.

Plaintiff’s first argument was that the ALJ erred in finding that he could work as an order clerk, which carries a Reasoning Level 3, given that he was limited to simple, routine, repetitive tasks. Id. at 1009. The Court noted that it has not decided the issue of whether a limitation to simple, routine and repetitive work is inconsistent with a jobs that requires reasoning level of 3, and it failed to do so here, as the other two jobs relied on by the ALJ were R1 (lens inserter) and R2 (lens-block gauger), and were not inconsistent with the assessed RFC, and so any error by the ALJ was harmless. Id.

Plaintiff’s second argument was that the ALJ’s finding that there were a sufficient number of lens inserter and lens-block gauger jobs in the national economy was not supported by substantial evidence. Id. Plaintiff presented to the district court data published in the Dept. of Labor’s occupational employment statistics, and argued the VE’s numbers were “extremely overstated.” Id. However, in determining whether the ALJ’s decision was supported by substantial evidence, the Court stated it could “look only to the evidence actually presented to the ALJ.” Id. at 1009-10. (quoting Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998); see also Cherry v. Heckler, 760 F.2d 1186, 1193 9(11th Cir. 1985)). At the hearing, the only evidence regarding job numbers was the VE’s testimony that there were approximately 78,000 lens inserter and lens-block gauger jobs in the national economy. Id. at 1010. Plaintiff neither presented the occupational employment statistics to the ALJ nor objected to the VE’s testimony. Id. The Court held 78,000 jobs was substantial evidence to support the ALJ’s step 5 finding, and affirmed the district court’s judgment.

Preston v. Comm’r Soc. Sec. Admin., 2018 WL 6433682 (11th Cir. Dec. 7, 2018).

Plaintiff appealed the district court’s order affirming the Commissioner of the Social Security Administration’s decision to deny her supplemental security income. On appeal, Plaintiff argues that substantial evidence does not support the ALJ’s RFC determination.

The Court rejected Plaintiff’s argument that “any reasonable person would have found” her to be disabled “as a direct and proximate result of [her] combination of impairments,” including depression, anxiety, and—as evidenced by testing from when she was 14 years old—intellectual and behavioral deficiencies.” The Court found that “the mere existence of these impairments does not reveal the extent to which they limit her ability to work or undermine the ALJ’s determination in that regard.” The court noted the ALJ discussed at length how he weighed the objective medical evidence, including the extent of Plaintiff’s impairments, in making his RFC determination. Additionally, the court found that the ALJ had adequately evaluated Plaintiff’s credibility. The court acknowledged some evidence cut against the ALJ’s decision, noting Plaintiff occasionally suffers from visu that some evidence supports a disability determination does not cast doubt on the propriety of the ALJ’s decision.al hallucinations as a result of schizoaffective disorder. However, it concluded “that some evidence supports a disability determination does not cast doubt on the propriety of the ALJ’s decision.” The court affirmed the district court’s judgment.

Levie v. Berryhill, No. 18-11832, 2018 U.S. App. LEXIS 34446 (11th Cir. Dec. 7, 2018).

Plaintiff appealed the district court’s order affirming the Social Security Commissioner’s denial of his application for disability insurance benefits and supplemental security income. Plaintiff argued that: (1) the ALJ improperly discredited the opinions of his psychologist and his psychiatrist; (2) the ALJ failed to consider the opinion of his treating therapist; and (3) the ALJ failed to consider his conditions of ADHD, Asperger’s disorder, and cognitive disorders.

The court rejected his arguments. First, the court found the ALJ properly weighed the opinions of Plaintiff’s psychologist and his psychiatrist. The court noted the ALJ carefully considered the treatment notes and medical opinions of the specialists and how those opinions fit with the record as a whole. It reasoned the ALJ ultimately found that objective medical evidence in the record and evidence of Plaintiff’s daily activities and work history were not consistent with the opinions Specifically, evidence in the record demonstrated that in addition to performing daily activities, Plaintiff was able to take care of his mother, remodel both his own property and other properties, and work for Goodwill Industries during his alleged disability. Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).

Next the court found that that the ALJ did not err in failing to weigh the opinion of his treating therapist. The court observed that the ALJ noted Plaintiff’s treatment with her and cited to her treatment notes. The treatment notes from the non-acceptable medical source were taken five to seven years prior to the Plaintiff’s alleged onset of disability and were not obviously probative., Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).

Finally, the court found that the ALJ properly considered Plaintiff’s conditions of ADHD, Asperger’s disorder, and cognitive disorders. In discussing the medical evidence contained in the various exhibits, the ALJ specifically noted that various mental health professionals had diagnosed him with those particular disorders. However, the court noted, “[a] diagnosis alone is insufficient to support a finding of disability but must be accompanied by evidence of functional limitation. See Moore v. Barnhart, 405 F.3d 1208, 1212−13 (11th Cir. 2005) (per curiam). After considering other acceptable medical opinions, as well as Plaintiff’s daily activities and work history, the ALJ concluded that these disorders did not impose significant functional limitations. In his written decision, the ALJ stated that he had considered Plaintiff’s impairments—both singly and in combination—and concluded that they did not meet the severity of any of the relevant listings. The court concluded that such a statement is sufficient to find that the ALJ considered the impact of the Plaintiff’s impairments alone and in combination. The court affirmed the district court’s judgment.

Washington v. Comm’r Soc. Sec. Admin., 906 F.3d 1353 (11th Cir. 2018).

Plaintiff suffers from diabetic neuropathy and reduced visual acuity. In November 2012, he applied for disability insurance benefits which was denied. He sought a hearing before an ALJ. He was represented by counsel during the proceeding. At the hearing, he provided extensive testimony and offered documentary evidence about his various health problems. Among other things, he testified about pain and swelling in his hands and feet on account of his diabetes. He also explained that he has difficulty with certain basic tasks, such as buttoning his shirts and tying his shoes. During the hearing, the ALJ asked him to pick up a pen, which he was unable to do. After he testified, the ALJ called a vocational expert to provide evidence about the availability of jobs that Plaintiff could perform. The ALJ posed a hypothetical question about an individual with all of Washington’s relevant characteristics, including that, because of his neuropathy, he would not be able to engage in “fine manipulation” with his fingers, and because of his visual impairments he would not be able to work around hazardous equipment or heights. In response, the VE testified there were no jobs the individual could perform because all such jobs required at least occasional fine manipulation. The ALJ then posed the same hypothetical except he proffered that the individual could perform occasional fine manipulation, also referred to as “occasional fingering.” In response, the VE identified two available jobs: table worker and bagger. The VE further opined that the table worker job involved inspecting larger items such as DVD cases or aspirin bottles for defects, and thus, would not involve fine detail work. He also explained that the bagger job entailed placing items — such as clothing or jewelry — into bags. The ALJ then asked the VE if his testimony was consistent with the Dictionary of Occupational Titles (DOT). The VE responded that his testimony was consistent and that he based his testimony on his experience, including having conducted onsite analyses of the jobs he identified. Plaintiff’s attorney declined an invitation to question the VE.

The ALJ found that Plaintiff was not disabled. He determined that Plaintiff could find work as a bagger or table worker despite his impairments. On this basis, the ALJ denied his claim for benefits. In his decision, the ALJ also stated that, “[p]ursuant to SSR 00-4p, the undersigned has determined that the vocational expert’s testimony is consistent with the information in the Dictionary of Occupational Titles.” The order contained no other discussion of whether or how the VE’s testimony was consistent with the DOT.

Plaintiff sought relief from the denial of benefits in district court. Plaintiff argued the ALJ’s decision was not supported by substantial evidence because the ALJ had failed to properly identify, explain, and resolve an apparent conflict between the VE’s testimony and the DOT, as required by SSR 00-4p. In particular, Plaintiff observed that the VE expressly said that a person who is capable of only occasional fingering could work the jobs of bagger and table worker. In sharp contrast, however, the DOT describes both of these jobs as requiring frequent fingering. The district court denied his appeal concluding that the ALJ fulfilled his duties under SSR 00-4p simply by asking the VE if he had testified consistently with the DOT.

Plaintiff appealed the district court’s denial again arguing that the ALJ had failed erred under SSR 00-4p when he didn’t address the conflict between the RFC limitation to occasional hand use and the two jobs’ DOT requirement for frequent fingering. The court agreed. The court noted the case turned on the meaning and application of SSR 00-4p explaining that SSR 00-4p is a “policy interpretation” of the Agency’s regulations governing the adjudication of disability claims. It held that SSR 00-4p “imposes a duty on ALJs to identify and resolve apparent conflicts between DOT data and VE testimony, and this duty is not fulfilled simply by taking the VE at his word that his testimony comports with the DOT when the record reveals an apparent conflict between the VE’s testimony and the DOT. Rather, as we see it, the ALJ has an affirmative obligation to identify any “apparent” conflict and to resolve it. The failure to properly discharge this duty means the ALJ’s decision is not supported by substantial evidence.” In so holding, the court noted that it joined the 4th, 7th, 8th and 10th circuits.

Applying the “rules of statutory construction” as an aid for analysis, the court observed that SSR 00-4p’s “statement of purpose strongly suggests that the ALJ has an affirmative duty to ascertain the existence of conflicts. It declares that ALJs “must: Identify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs or VSs and information in the Dictionary of Occupational Titles (DOT) . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved.”” The court held the ALJ’s duties are “threefold and defined in the conjunctive.” An ALJ must: (1) identify any conflicts; (2) explain any discrepancy and how it was resolved; and (3) it is expansive. There is no suggestion that such duty is limited to “conflicts the ALJ is put on notice of by the claimant or by the VE. Rather, by the terms of the Ruling’s statement of purpose, the ALJ’s duty is defined in an expansive manner.”

Further, the court observed that the section of SSR 00-4p entitled “The Responsibility To Ask About Conflicts” states ALJs have “an affirmative responsibility to ask about any possible conflict between [] VE or VS evidence and information provided in the DOT.” The court noted this established an independent obligation “regardless of whether the VE identified the conflict for the ALJ when questioned.” The court explained, citing the Fourth Circuit in Pearson v. Colvin, 810 F.3d 204, 208 (4th Cir. 2015), that “[p]ut another way, the provision articulates a general duty to “ask about” conflicts, and posits two ways that an ALJ must discharge this responsibility, which are distinct and independent from one another. The ALJ must ask the VE whether there is a conflict and must ask for an explanation if there appears to be a conflict. Whenever a conflict is “apparent,” the ALJ must also ask the VE about it. Moreover, “[w]hen an ALJ identifies an apparent conflict that was not raised during a hearing, [the ALJ] can request an explanation of the conflict by submitting interrogatories to the vocational expert.” citing Social Security Administration, Hearings, Appeals, and Litigation Law Manual, I-2-5 § 30(C)(2015)). During or after the hearing, the ALJ is expected to take notice of apparent conflicts, even when they are not identified by a party, and resolve them.”

The court also took note of SSR 00-4p’s final provision describing that an ALJ “must explain the resolution of the conflict irrespective of how the conflict was identified.” The court concluded its analysis of the text by observing that, “[a]sking the VE about whether there is a conflict is not the only thing required of an ALJ. Indeed, if that were not the case the ALJ could ignore explaining and resolving any apparent conflict (such as the one that existed in this case) simply by asking one question of the VE and relying on his erroneous answer.”

The court noted that its interpretation of the text was also guided by the entire regulatory scheme. Disability adjudication is inquisitorial not adversarial and “[f]ew if any, agency adjudications depart more markedly from the adversarial customs that define the American legal tradition than do SSA hearings. In processing disability claims, the ALJs do not simply act as umpires calling balls and strikes. They are by law investigators of the facts and are tasked not only with the obligation to consider the reasons offered by both sides, but also with actively developing the record in the case. Accordingly, although independently identifying and resolving the points of apparent conflict between expert testimony and other evidence would be out of character for most judges, for a Social Security ALJ it can be fairly said to come with the territory.”

This conclusion was reinforced by the importance of the DOT in as source of jobs data. “ As SSR 00-4p itself explains, the SSA “rel[ies] primarily on the DOT . . . for information about the requirements of work in the national economy.” SSR 00-4p. Similarly, 20 C.F.R. § 416.966(d) explicitly names the DOT as one of the main sources of jobs data the SSA relies on, and provides that ALJs “will take administrative notice of reliable job information available” in the DOT. This subsection places the DOT first in its list of reliable government sources. What’s more, other SSA Rulings describe the DOT as “authoritative.” See, e.g., SSR 96-9p. Plainly the DOT is integral to disability hearings. The importance of the DOT, coupled with the robust nature of the ALJ’s investigatory responsibilities, gives further meaning to the obligations imposed on the ALJ by the Ruling to identify, explain, and resolve “apparent conflicts.”…. [a]n “apparent conflict” is thus more than just a conflict that is made apparent by the express testimony of the VE. It is a conflict that is reasonably ascertainable or evident from a review of the DOT and the VE’s testimony. At a minimum, a conflict is apparent if a reasonable comparison of the DOT with the VE’s testimony suggests that there is a discrepancy, even if, after further investigation, that turns out not to be the case. Since the ALJs frequently use the DOT, treat it as an authoritative source, and actively investigate the evidence for and against granting disability benefits, identifying these “apparent conflicts” falls well within their wheelhouse.”

Finally, applying the requirements of SSR 00-4p to Plaintiff’s case the court held that “the difference here between the VE’s testimony and the DOT presents one of the clearest examples of an “apparent conflict.” The VE was asked whether there are any jobs in the national economy for someone with Washington’s impairments, including the fact that he can only engage in “occasional fingering.” The VE testified that such an individual could work as a bagger and a table worker. A review of the DOT’s entries about these positions, however, indicates that both of these jobs can only be performed by a person who is capable of “frequent fingering.” This means that both jobs require fingering, i.e. “fine manipulation,” anywhere from 1/3 to 2/3 of the time. Thus, while the VE unequivocally testified that there were jobs Washington could perform, the DOT says otherwise. This doesn’t mean that the VE was wrong, but it does mean that there was a conflict, it was apparent, and it was important.”
The ALJ’s failure to resolve this conflict was not harmless and the court reversed and remanded for further development of the record on this issue.

Underwood v. Comm’r Soc. Sec. Admin., 2018 WL 5309926 (11th Cir. Oct. 26, 2018).

Plaintiff applied for disability insurance benefits with an onset date in 2005 and a date last insured in 2009. Plaintiff appealed the districts court’s affirmation of the ALJ’s denial of benefits, arguing: (1) the ALJ’s decision to give little weight to his treating physician’s opinions was not supported by substantial evidence; and (2) the ALJ’s determination that he was not credible was not supported by substantial evidence.

The court rejected his arguments. First, the court found that substantial evidence supported the ALJ’s determination that Plaintiff’s treating physician was entitled to “little weight.” Despite offering an opinion with mental health limitations, nor of the doctor’s records mention any symptoms. During the 7 appointments in the relevant time period there were no mention of the limitations assessed in the opinion. The first time Plaintiff’s treating physician suggested he was disabled was on March 23, 2010, after Plaintiff’s date last insured. The ALJ had solicited medical expert testimony which had concluded there were no functional limitations consistent with the opinion during the relevant time period.

Second the court found that substantial evidence supported the ALJ’s determination that Plaintiff was not credible, as his subjective complaints were inconsistent with the objective medical evidence from his treating doctor, his other specialists, his contemporaneous comments in medical records, and his continued daily routine. The court noted, “[s]uch “credibility determinations are the province of the ALJ,” and “we will not disturb a clearly articulated credibility finding supported by substantial evidence.” Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014). The court affirmed the district court’s judgment.

Long v. Acting Comm’r of the SSA, No. 18-11117, 2018 U.S. App. LEXIS 29486 (11th Cir. Oct. 19, 2018).

Plaintiff appealed the districts court’s affirmation of the ALJ’s denial of benefits, arguing (1) that the ALJ erred in determining that he was able to perform his past work as a textile supervisor and (2) that the ALJ erred by giving his treating physician’s opinion minimal evidentiary weight without good cause.

The court rejected his arguments. The court noted, “[t]he claimant bears the burden of demonstrating inability to perform his past kind of work, not merely inability to perform a specific past job. Jackson v. Bowen, 801 F.2d 1291, 1293-94 (11th Cir. 1986). In making this determination, the ALJ must consider all the duties of the claimant’s past work and evaluate his ability to perform them in spite of his impairments. Lucas v. Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990).” The court explained that here the ALJ had properly relied upon the Plaintiff’s Work History Report, Plaintiff’s own testimony, the vocational expert’s testimony, and the description of the job in the Dictionary of Occupational Titles (DOT). Relying upon this evidence, the ALJ properly determined that Plaintiff was capable of performing his past relevant work by comparing his residual functional capacity to the physical requirements and job demands of a textile supervisor. In making this determination, the ALJ referred to the DOT identification number for this position and the vocational expert’s testimony. The vocational expert presented unchallenged testimony that a hypothetical person with Plaintiff’s RFC could perform his past duties as a textile supervisor, both as actually performed by Plaintiff and as generally performed in the national economy. Plaintiff did not point to any discrepancy between his RFC and the duties of a textile supervisor. Using this evidence, and comparing Plaintiff’s RFC, the ALJ properly determined that he was capable of performing his past relevant work as a textile supervisor.

Next, the court found substantial evidence supports the ALJ’s determination that Plaintiff’s treating physician’s opinion was against the totality of the evidence and was inconsistent with her own medical records. The physician had opined that Plaintiff suffered severe pain and would need to take constant rest periods and miss a number of workdays per month. The medical records from the doctor, however, indicate that Plaintiff was not in pain and had normal range of motion, strength, gait, and stability in all extremities. The court affirmed the district court’s judgment.

Bullard v. Comm’r Soc. Sec. Admin., No. 18-10190, 2018 U.S. App. LEXIS 27660 (11th Cir. Sep. 28, 2018)

A pro se Plaintiff appealed a district court’s order affirming the Social Security Commissioner’s final decision denying his application for disability insurance benefits and dismissing his claim against his former attorney for lack of jurisdiction. Plaintiff alleged disability onset date of May 1, 1998, but that he has been disabled ever since an on-the-job truck accident on June 13, 1980.
The court affirmed the district court’s denial finding that Plaintiff had not submitted any medical records, evidence, or testing that indicated a disability during the relevant time period. Further, his testimony concerning his 1980 accident did not demonstrate a disabling impairment both because the accident occurred prior to his alleged disability onset date and because his earnings records show that he worked for several years after the 1980 accident. Finally, although he presented medical evidence of impairment after June 30, 1998, there was no reasonable basis to conclude that this evidence related back to his previous disability claim.

Next, the court found that Plaintiff’s claim against his former attorney does not confer jurisdiction under § 405(g) because it is not a final decision related to Social Security benefits. The court affirmed the district court’s judgment.

Teague v. Comm’r Soc. Sec. Admin., 743 F. App’x 410 (11th Cir. Aug. 27, 2018).

Plaintiff appealed a district court denial arguing that the ALJ erred by relying on the vocational expert’s testimony that plaintiff could perform a substantial number of jobs in the national economy. The court affirmed the ALJ’s finding, based on substantial evidence in the record, that Plaintiff could perform a substantial number of jobs in the national economy because she failed to present any evidence to the contrary. The vocational expert’s unrebutted testimony—based on her experience, practice, having completed onsite job analyses for the specific jobs for which she found Plaintiff qualified, and the Dictionary of Occupational Titles—constituted substantial evidence that a significant number of jobs in the national economy existed that she could perform. The court affirmed the district court’s judgment.

Stewart v. Comm’r of the SSA, No. 17-15184, 2018 U.S. App. LEXIS 22826 (11th Cir. Aug. 16, 2018).

Plaintiff applied for supplemental security income and was denied after an ALJ hearing. After the Appeals Council denied review, she appealed to the district court which affirmed the ALJ’s denial. Plaintiff then appealed the district court’s denial arguing that the ALJ erred: (1) by failing to assess her non-severe post-traumatic stress disorder (“PTSD”) and irritable bowel syndrome (“IBS”) when deciding whether she was disabled; and (2) in assessing the medical opinion of her treating physician. The court affirmed in part and vacated in part.

First, the court found that the ALJ did not err in assessing Plaintiff’s PTSD and IBS conditions. The court found that the ALJ considered her PTSD, individually and in combination with her other impairments, at each step of the sequential evaluation in determining whether she was disabled. Although the ALJ did not explicitly say that she suffered from PTSD as a result of childhood trauma, the ALJ referenced her childhood trauma and resulting psychiatric hospitalization throughout his decision. The court found that the ALJ properly found other severe impairments at step two and considered her mental impairments together at the subsequent steps and formulated an RFC limiting her to light work with simple, routine tasks, excluding production rate pace jobs; and only casual social interaction with the public and co-workers. With respect to her IBS, the court found that the ALJ erred by failing to consider in the decision but that this omission was harmless. Plaintiff failed to argue that her IBS was a severe impairment or that it met or equaled a listing; instead, she argued that her IBS resulted in only one additional limitation not included in her RFC — frequent absences from a work station in order to defecate. Nevertheless, the court found that this was unsupported by the medical record denying diarrhea or other IBS-related symptoms and she was found not to have IBS-related symptoms throughout that time.

Next, the court turned to Plaintiff’s argument that the ALJ erred in the assessment of her treating physician. The court explained that an ALJ must give the opinion of a treating physician substantial or considerable weight unless good cause is shown to not give it substantial weight, the court noted that even where the ALJ does not grant controlling weight to the treating physician’s report, the ALJ must analyze the weight to give that opinion based on, inter alia: (1) the length of the treatment relationship and frequency of examination; (2) the nature and extent of the treatment relationship; (3) how much relevant evidence supports the opinion; (4) how consistent the opinion is with the record; and (5) whether the physician is a specialist making opinions about an area within his specialty. If the ALJ disregards or accords less weight to the opinion of a treating physician, the ALJ must state his reasons for doing so with particularity, and the failure to do so is reversible error. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

Applying this analysis, the court found that the ALJ had erred in the evaluation of the opinion of Plaintiff’s treating physician. The court noted the ALJ mentioned the treating physician’s opinion only twice in his decision. Once, the ALJ noted that parts of the record, including the results of a stress test, a successful hernia repair, a cardiac study, and earache treatments, “weigh[] persuasively against the medical source statement.” Later, the ALJ mentioned the treating physician’s opinions that Plaintiff “was not exaggerating her symptoms,” “would miss three or more days a month of work due to her symptoms and treatment,” had a “diagnosis of fibromyalgia [that] was consistent with the established criteria by the American College of Rheumatology,” and had combined impairments that “preclude sustained work activity.” The ALJ then said: “I have considered his opinion and I give it less weight as his own treatment notes are not consistent with an inability to perform all work-related activities, though the Plaintiff is limited to light work with simple/routine tasks in a safe environment.” However, the court found the ALJ did not discuss which parts of the treatment notes contradicted his opinion that Plaintiff had severe impairments rendering her unable to sustain continuous and regular work activities. Lewis, 125 F.3d at 1440. The court elaborated that the treating physician’s notes consistently found that Plaintiff had severe, chronic, and worsening medical issues, for which he regularly prescribed medication and ordered diagnostic testing. Additionally, when conducting physical examinations of Plaintiff during her numerous appointments, he regularly found that she had abnormalities. Thus, the findings, as stated in his treatment notes, appear to support his opinion. Because substantial evidence did not support the ALJ’s determination that the opinion was not due controlling weight because it was contradicted by his own treatment notes, the ALJ should have re-contacted him to either obtain additional medical records or to attempt to reconcile the treatment notes with his opinion. The ALJ’s decision did not clearly articulate reason(s) for disregarding the treating physician’s opinion that are supported by substantial evidence. The court concluded that the ALJ’s treatment of the opinion was so cursory that it could not determine whether the ALJ actually reviewed the opinion in accordance with the regulatory factors. The court vacated and remanded so that the ALJ can explicitly consider in the first instance, and can explain the weight accorded to, the treating physician’s opinion.

Lindsey v. Comm’r Soc. Sec. Admin., 741 F. App’x 705 (11th Cir. July 10, 2018).

Plaintiff applied for supplemental security income due to bipolar disorder, mood disorder, and leg deformities on April 5, 2013. His claim was denied by an ALJ on December 22, 2015. After an Appeals Council denial, Plaintiff filed an appeal in district court. While his case was pending before the district court, he moved for a sentence-six remand—allowing the district court to retain jurisdiction and enter judgment after the remand proceedings are completed based on new, material, and chronologically relevant evidence that became known to him only after a subsequent favorable decision that found him disabled as of April 1, 2016, the first date of the month in which his second SSI application was filed. The district court denied his motion to remand. It held that he did not show good cause for failing to submit the records for November 4, 2015, through February 18, 2016, all of which pre-dated the Appeals Council’s decision. In contrast, it found he had shown good cause for failing to submit the April 21, 2016, through January 2017 records, as those records did not exist before the Appeals Council denied review. Nonetheless, the district court determined that those records were not chronologically relevant because they were relevant only to whether his condition deteriorated after the ALJ’s decision and not probative of his condition up to the date of the ALJ’s decision in December 2015.

Plaintiff appealed the district court’s denial arguing that the December 2015 through February 2016 records were nonexistent to him because he did not know of them before the Appeals Council denied his request for review. The court rejected this argument. The court stated that he had not shown that those records did not actually exist before the Appeals Council’s decision; as the district court stated, he knew that those records existed because he had visited the treating sources on those dates. Finally, he had not demonstrated good cause by showing that he could not have obtained the records earlier. The court noted, “[t]he good cause requirement is satisfied when the evidence did not exist at the time of the administrative proceedings. Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218-19 (11th Cir. 2001). In some cases, appellant may show good cause “even if the evidence was available to the applicant before the ALJ’s decision.” Falge v. Apfel, 150 F.3d 1320, 1323-24 (11th Cir. 1998). When the claimant gives no reason why he could not have obtained the evidence earlier, the good cause requirement is not satisfied. Id. at 1323 & n.8.” Despite allegations to the contrary there was no evidence that he had attempted to obtain the records from the Commissioner or his group home before the Appeals Council’s decision.

With respect to the district court’s finding that his newly-discovered records from April 2016 through January 2017 were not material, the court held that none of the records from April 2016 to January 2017 are chronologically relevant, as they relate only to his treatment after the ALJ’s decision and do not change the picture of what his symptomology was like before the ALJ’s decision. There was no indication that a subsequent opinion was based upon prior medical records or that the provider treated Plaintiff during the relevant time period. The court affirmed the district court’s judgment.

Carter v. Comm’r Soc. Sec. Admin., 726 F. App’x 737 (11th Cir. Mar. 12, 2018).

Plaintiff applied for disability insurance benefits and supplemental security income due to problems with her veins and legs, her cognitive abilities, and her low IQ. Plaintiff appealed the district court denial on the basis that: (1) the ALJ erred in determining that she could perform a reduced range of sedentary work; (2) the ALJ improperly gave little weight to the opinions of her doctor and nurse; and (3) the ALJ failed to consider the vocational expert’s testimony that a person who was required to elevate her legs would be unemployable.

The court rejected her arguments. First, the court found substantial evidence supported the ALJ’s determination of the RFC for a reduced range of sedentary work. The court explained nothing in the record suggests that her IQ or cognitive functioning is so low that she could not perform any job, even though the record reflected that she had learning disabilities. Furthermore, even though on appeal she asserted illiteracy, this was contradicted by her testimony that she reads the Bible. The court noted that her treating providers had recommended to exercise and prescribed conservative treatment for her leg problems.

Second, the court found that the ALJ articulated good reasons, supported by substantial evidence, for his assessment of the weight due to the medical opinion evidence of her treating sources. The court found both opinions were conclusory and had not specified any reason for why she could not work. The court elaborated that the opinions were also inconsistent with the record as a whole as she had been managed conservatively and had been encouraged to exercise.

Finally, the court rejected her argument that the ALJ improperly relied on the VE’s testimony. While it was true that the VE testified that, if a Plaintiff had to elevate her feet with the feet extended while at work, that “no work” would be available; the only pieces of evidence that mentioned elevating her feet were the opinions which the court found the ALJ had properly rejected. Furthermore, the court found that VE’s testimony was consistent with the ALJ’s hypothetical which did not require any reading comprehension level or a certain IQ. The court affirmed the district court’s judgment.

Mullen v. Acting Comm’r Soc. Sec. Admin., 723 F. App’x 970 (11th Cir. May 22, 2018).

Plaintiff applied for disability insurance benefits with a date last insured on December 1, 2008. Plaintiff appealed the district court denial on the basis of a medical opinion offering more limitations than determined in the ALJ’s RFC finding. The court rejected her argument. Plaintiff was required to prove she was disabled on or before December 2008 and her doctor’s first opinion was in 2010. The ALJ’s denial was supported by a consultant opinion and medical evidence from the relevant time period. The court affirmed the district court’s judgment.

Duffy v. Comm’r Soc. Sec. Admin., 736 F. App’x 834 (11th Cir. June 8, 2018).

Plaintiff applied for disability insurance benefits and supplemental security income on the basis of her mental impairments of anxiety disorder, attention deficit hyperactivity disorder, Asperger’s syndrome and a personality disorder. She appealed the district court’s denial on the basis that (1) that the ALJ failed to adequately consider and specify the weight given to her examining psychologists’ medical opinions including a statement from one of them that she “would require at least one year of counseling before she would be able to work”; and (2) the ALJ failed to consider her diagnosis of Asperger’s disorder.

The court rejected her arguments. First, the court found that although the ALJ did not expressly state the weight given to the examining psychologists, he clearly articulated his reasons for giving little weight to the “GAF scores” relied on by the doctors; and the ALJ pointed out inconsistencies in the GAF scores and the overall mental-status exam findings. Moreover, the ALJ accurately discussed both opinions in detail in the medical history section of the decision. Though the ALJ did not discuss the opinion that she “would require at least one year of counseling before she would be able to work”; the court concluded “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s decision” enables the reviewing court “to conclude that the ALJ considered [the Plaintiff’s] medical condition as a whole.” (quotation and alterations omitted)). Moreover, whether a Plaintiff is able to work is a determination reserved to the Commissioner and is no “medical opinion” within the meaning of the regulations.” The court concluded that the ALJ’s description of Plaintiff’s functional limitations was consistent with the opinions expressed. Thus, the ALJ’s failure to particularly state the weight given to plaintiff’s experts was harmless error.

Lastly, the court found that Plaintiff had not alleged in either her application for benefits or at her hearing — that her Asperger’s disorder was a basis for her disability. Accordingly, the court found that the ALJ was under no duty to consider this alleged impairment. The court also noted that Plaintiff had failed to demonstrate that her Asperger’s disorder causes functional limitations of a different kind or severity than those health issues already accounted for by the ALJ. The court affirmed the district court’s judgment.

Arnold v. Comm’r Soc. Sec. Admin., 724 F. App’x 772 (11th Cir. Feb. 13, 2018).

Plaintiff applied for disability insurance benefits on the basis of degenerative disc disease of the lumbar spine. Plaintiff sought emergency room treatment for this condition in May 2010 and underwent surgery for it in July 2010. Plaintiff applied three times for disability benefits alleging disability beginning in May 2010. His first and second applications were denied, but his third application was granted. This appeal stemmed from the denial of his second application. However, he raised the issue of ALJ bias based on the outcomes of his first and third applications

He appealed the district court’s denial related to his second application on the basis that the: (1) the ALJ improperly evaluated the opinion of the consultative examining physician, (2) substantial evidence did not support the ALJ’s determination that he could perform his past relevant work as a radio dispatcher; (3) the district court should have granted his motion for a “sentence four” remand to the agency in light of new Social Security Ruling (“SSR”) 16-3p, , which should be applied retroactively; and (4) the district court should have granted his motion for a “sentence six” remand based on new evidence of bias on the part of the ALJ and of a subsequent favorable decision from the agency.

The court rejected his arguments. First, the court found that the ALJ had properly assigned “some weight” to the opinion of the consultative examiner. The ALJ articulated specific reasons why she rejected the hand, noise, and pulmonary limits in the opinion. None of the medical records showed evidence of functional limitations in Plaintiff’s hands, lungs, or hearing ability over the course of his treatment for his low back pain. Nothing in the examiner’s evaluation report or EMG report indicated that he had any such limitations. Further, Plaintiff did not complain of such limitations at any time in the claim process, during treatment or at the administrative hearing.

Second, the court found that the ALJ properly obtained vocational expert testimony to assess Plaintiff’s non-exertional limitations on his ability to perform his past work. The court pointed out this conclusion was also consistent with the medical opinions of record. Next, the court found that SSR 16-3p explicitly stated that it became effective on March 28, 2016. Thus, it “applies only prospectively and does not provide a basis for remand.” Lastly, the court found that a subsequent award of benefits “is not evidence for § 405(g) purposes.” Likewise, an affidavit submitted by Plaintiff alleging bias was not evidence for bias on the part of the ALJ. The court affirmed the district court’s judgment.

Black v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS, __ Fed. Appx. __ (11th Cir. Feb. 27, 2019).

Plaintiff filed for supplemental security income based on depression, bipolar disorder, short term memory issues, high cholesterol, and COPD. The ALJ found that Plaintiff had moderate mental limitations (under the Paragraph B criteria), but that the record did not support of finding of borderline intellectual functioning. The RFC found Plaintiff capable of performing light work with the following mental limitations: limited to the performance of repetitive tasks, to work that required little to no judgment and required no more than simple work-related decision, to occasional and casual interaction with the public and other employees, and to work that dealt primarily with things as opposed to people. The ALJ denied benefits at step 5. On appeal to the Appeals Council, Plaintiff offered a new psychological evaluation (which postdated the ALJ’s decision), which indicated he had a FSIQ of 70 and was in the borderline range of intellectual functioning; the evaluation also assessed work-preclusive mental limitations. The Appeals Council denied review.

On appeal to the district court, Plaintiff argued that the Appeals Council erred in not considering the 2015 psychological evaluation and submitted a copy of the same with his brief. The district court found that the Appeals Council had adequately considered this evidence (as Plaintiff’s brief discussing this evidence was included in the record), and affirmed the ALJ’s decision.

The circuit court found that the ALJ properly weighed the medical opinion evidence that existed at the time of his decision. In regard to the 2015 psychological evaluation, the court began by noting that a claimant can present new evidence at any stage of the administrative progress, 20 C.F.R. § 404.900(b), and that the Appeals Council must consider any new and material evidence in its decision to review, even if it decides not to review the ALJ’s denial of benefits. 20 C.F.R. §§ 404.967, 404.970(b). While merely acknowledging the new evidence is not sufficient, the Appeals Council is not required to “provide a detailed discussion of a claimant’s new evidence when denying a request for review.” The court found that the Appeals Council’s statement that it had reviewed the new evidence, which did not provide a basis for changing the ALJ’s decision, was sufficient, and thus the Appeals Council properly denied review. In addition, the court found that the district court did not err in denying Plaintiff’s sentence-four remand based on this evidence.

Barnes v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 5854, __ Fed. Appx. __ (11th Cir. Feb. 27, 2019)

Plaintiff, a pro se claimant, argued that the ALJ erred in finding that his enlarged prostate was a nonsevere impairment and further erred in failing to include limitations related to his enlarged prostate in the hypotheticals to the vocational expert. The court found that the ALJ did include limitations related to his enlarged prostate in the hypothetical, namely the need for frequent unscheduled breaks in addition to regularly scheduled breaks on a daily basis. However, the court noted that the ALJ concluded that Plaintiff’s enlarged prostate was not a condition that impaired his ability to work, and “[s]o it was not a condition that the ALJ was required to incorporate into its assessment.” See Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1270 (11th Cir. 2007) (“The hypothetical need only include the claimant’s impairments, not each and every symptom of the claimant. The characteristics that the [ALJ] omitted are among those that [the claimant] alleged to suffer but were either not supported by her medical records or were alleviated by medication.”). The court further declined to consider Plaintiff’s “new” evidence (i.e., multiple websites discussing the effects of an enlarged prostate) because there was “no good cause” for the introduction of said evidence into the record after the ALJ’s decision. The district court’s decision was affirmed.

McClain v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 857, __ Fed. Appx. __ (11th Cir. Jan. 10, 2019).

Plaintiff filed a claim for disability insurance benefits based on various physical impairments and anxiety. At the hearing, she testified regarding her psychological limitations. The medical records indicated she had been diagnosed with anxiety by her treating physician and prescribed medication; she had also seen a therapist on two occasions. The ALJ’s RFC included mental limitations of: simple tasks, occasional interaction with the public, and brief and casual contact with supervisors and coworkers. The ALJ denied her claim at step 5; while her case was pending before the Appeals Council, Plaintiff offered additional medical evidence, including a psychological examination report, which was performed 15 months after the ALJ’s decision. The Appeals Council refused to consider the report because it was “about a later time; the district court affirmed. On appeal, Plaintiff argues the Appeals Council erred in failing to consider the report.

The court noted its de novo review of whether Plaintiff’s additional evidence qualifies as “new, material, and chronologically relevant”; “when the Appeals Council erroneously refuses to consider evidence, it commits legal error and remand is appropriate.” Washington v. Comm’r of Soc. Sec., 806 F.3d 1317, 1321 (11th Cir. 2015). It explained that “[e]vidence is chronologically relevant if it ‘relates to the period on or before the date of the administrative law judge hearing decision.’” 20 C.F.R. § 404.970(b).

The court found that the psychological examination report was “not chronologically relevant” because “his opinion appears to relate to a worsening of a condition or the onset of a new condition after the date of the ALJ’s decision.” The court reached this conclusion because Plaintiff was found to have “borderline intellectual functioning,” yet the medical records considered by the ALJ reflected normal intellectual functioning prior to the examination, and therefore “[t]his opinion must reflect a decline or change in [Plaintiff’s] intellectual function” and therefore “cannot relate back to the period before the ALJ’s decision.” The district court’s judgment was affirmed.

Pace v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 1114, __ Fed. Appx. __ (11th Cir. Jan. 14, 2019).

Plaintiff appealed the ALJ’s denial of his claims based on vocational testimony that 875,000 jobs existed in the national economy that he could perform; on appeal, Plaintiff argued that this number “is not supported by substantial evidence.” However, the court noted that the question is not whether the VE’s testimony is supported by substantial evidence, but “whether the ALJ’s decision is supported by substantial evidence.” (emphasis is original). The court stated that “[f]or a vocational expert’s testimony to constitute substantial evidence, ‘the ALJ must pose a hypothetical question which comprises all of the claimant’s impairments.’” The court then found the VE’s testimony to be “substantial evidence that supports the ALJ’s decision” because (1) the ALJ posed a hypothetical question to the VE that comprised all of his impairments; (2) Plaintiff did not object to the hypothetical; (3) the VE based her testimony on her experience, expertise, and onsite job analyses; (4) Plaintiff did not object to this testimony at the hearing; and (5) Plaintiff did not offer any evidence showing that the VE’s testimony was erroneous. Thus, the court affirmed the denial of benefits.