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Bigglest v. Berryhill

United States District Court, S.D. Georgia, Savannah Division

August 4, 2017

JAMES A. BIGGLEST, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

         Pro se plaintiff James Bigglest seeks judicial review of the Social Security Administration's denial of his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI).

         I. GOVERNING STANDARDS

         In social security cases, courts . . .

review the Commissioner's decision for substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. (quotation omitted). . . . “We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Commissioner.” Winschel, 631 F.3d at 1178 (quotation and brackets omitted). “If the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted).

Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).

         The burden of proving disability lies with the claimant. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The ALJ applies

. . . a five-step, “sequential” process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(1). If an ALJ finds a claimant disabled or not disabled at any given step, the ALJ does not go on to the next step. Id. § 404.1520(a)(4). At the first step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). At the second step, the ALJ must determine whether the impairment or combination of impairments for which the claimant allegedly suffers is “severe.” Id. § 404.1520(a)(4)(ii). At the third step, the ALJ must decide whether the claimant's severe impairments meet or medically equal a listed impairment. Id. § 404.1520(a)(4)(iii). If not, the ALJ must then determine at step four whether the claimant has the RFC[1] to perform her past relevant work. Id. § 404.1520(a)(4)(iv). If the claimant cannot perform her past relevant work, the ALJ must determine at step five whether the claimant can make an adjustment to other work, considering the claimant's RFC, age, education, and work experience. An ALJ may make this determination either by applying the Medical Vocational Guidelines or by obtaining the testimony of a [Vocational Expert (VE)].

Stone v. Comm'r. of Soc. Sec. Admin., 596 F. App'x, 878, 879 (11th Cir. 2015) (footnote added).

         II. ANALYSIS

         Bigglest, who was 55 years old when his DIB and SSI claims were denied, alleges disability beginning October 1, 2010. Tr. 30, 39, 173. He completed three years of college and has past work experience as a university coordinator, city parking service officer, city recreational leader, and security guard. Tr. 44, 50, 220-30. After a hearing, the ALJ issued an unfavorable decision. Tr. 30-39. He found that Bigglest's degenerative disc disease of the cervical spine, degenerative joint disease of the left knee, and degenerative joint disease of the right foot with a bunion constituted severe impairments but did not meet or medically equal a Listing. Tr. 33-34. The ALJ found that he retained the RFC for medium work[2] except he could not engage in constant bilateral overhead reaching. Tr. 34.[3] Plaintiff, he determined, was capable of performing his past work as a security guard, parking enforcement officer, and recreation counselor and thus not disabled through March 25, 2015 (the date of the decision). Tr. 38-39.

         Bigglest appealed to the Appeals Council (tr. 17-19 & 26-27), alleging disabling mental impairments precluded him from working and providing additional records in support of his claim from the Veterans Administration (VA). Tr. 2, 6, 7-23, 181, 271-72, 391-94. The records included (1) treating records dated before the date of the decision, which did not provide any basis for changing the ALJ's decision; and (2) treating records dated after the date of the decision. See Id. The Appeals Council considered the first set of medical records but declined to consider the second, as the “new information is about a later time” and “does not affect the decision about whether [he was] disabled beginning on or before March 25, 2015.” Tr. 2. It then denied Bigglest's request for review, concluding that there was no basis to review the ALJ's decision. Tr. 1-4.

         Plaintiff disagrees, arguing that (1) the Appeals Council[4] erred by failing to fully consider his VA records. Docs. 10 & 13. “With a few exceptions, the claimant is allowed to present new evidence at each stage of this administrative process, ” including before the Appeals Council. Ingram v. Comm'r, 496 F.3d 1253, 1261 (11th Cir. 2007).

         The Appeals Council has the discretion not to review the ALJ's denial of benefits. See 20 C.F.R. § 416.1470(b). But it “must consider new, material, and chronologically relevant evidence” that the claimant submits. Ingram, 496 F.3d at 1261; Washington v. Comm'r, 806 F.3d 1317, 1320 (11th Cir. 2015) (same); see also 20 C.F.R. §§ 404.970(b), 416.1470(b). When the Appeals Council accepts and considers additional evidence, then denies review, it is not “required to provide a detailed rationale for denying review.” Mitchell v. Comm'r, 771 F.3d 780, 784 (11th Cir. 2014). And when the Appeals Council “erroneously refuses to consider evidence, it commits legal error and remand is appropriate.” Washington, 806 F.3d at 1320.

         Plaintiff's VA records from before the date of the ALJ's decision were fully considered by the Appeals Council, entered into the record, and ultimately found not material -- meaning, they did not “provide a basis for changing the [ALJ]'s decision.” Tr. 2; see also tr. 6, 191, 271-72, 391-94. The Appeals Council did not have any duty to explain its finding, to reweigh the evidence of record, or otherwise recapitulate the ALJ's decision. M ...


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