Joyce Hargress v. Social Security Administration, Commissioner , 874 F.3d 1284 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11683
Non-Argument Calendar
________________________
D.C. Docket No. 4:16-cv-01079-CLS
JOYCE HARGRESS,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 6, 2017)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
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Joyce Hargress appeals the district court’s decision affirming the denial of
her application for disability insurance benefits and supplemental security income.
See 42 U.S.C. §§ 405(g), 1383(c)(3). After careful review, we affirm.
I. BACKGROUND FACTS
In May 2013, Hargress applied for disability benefits and alleged a disability
onset date of January 21, 2013 due to her type II diabetes, excessive tiredness, and
anxiety. After an August 12, 2014 hearing, the Administrative Law Judge (“ALJ”)
determined Hargress was not disabled and denied her applications for benefits.
A. ALJ’s Decision
Applying the five-step evaluation process, the ALJ found that: (1) Hargress
was insured through December 31, 2017 and had not engaged in substantial gainful
activity since January 21, 2013; (2) Hargress had the severe impairments of morbid
obesity, diabetes mellitus, hypertension, osteoarthritis of the left hip and left leg,
and diffuse disc bulges of the lumbar spine resulting in mild foraminal narrowing;
(3) Hargress did not have an impairment or combination of impairments that met
or medically equaled the severity of any of the listed impairments; (4) Hargress
had the residual functional capacity (“RFC”) to perform a full range of sedentary,
unskilled work, but was unable to perform her past relevant work as a department
manager of a retail store or battery parts assembler because they are not unskilled
work; and (5) considering Hargress’s age (40), high school education, work
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experience, and RFC, the Medical-Vocational Guidelines (“the vocational grids”)
mandated a finding of “not disabled.” Thus, the ALJ denied Hargress’s
applications.
In assessing Hargress’s RFC, the ALJ determined: (1) that Hargress’s
medically determinable impairments could reasonably be expected to cause her
alleged symptoms; and (2) that her statements concerning the intensity,
persistence, and limiting effects of those symptoms “are not entirely credible for
the reasons explained in this decision.” The ALJ noted, among other things, that:
(1) Hargress had never received emergency care or hospitalization for her diabetes
mellitus or her musculoskeletal impairments; (2) she failed to mention
musculoskeletal impairments in her disability report; (3) she described her pain as
mild in some medical records, and reported that she was capable of lifting, sitting,
standing, going up and down stairs, driving a car, reaching overhead, doing
housework, and dressing herself; (4) based on diagnostic imaging, her degenerative
joint disease and bilateral foraminal narrowing were described as mild and her disc
bulging was described as diffuse; (5) apart from a positive straight left-sided leg
raise test, she had not consistently produced abnormal musculoskeletal or
extremity examinations and had a full range of motion with no evidence of
instability; and (6) the record reflected that, when compliant with medication and
treatment, Hargress’s diabetes mellitus was stable.
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In evaluating the medical source opinions, the ALJ gave little weight to the
opinion of one of Hargress’s treating physician, Dr. Ochuko Odjegba, about
Hargress’s physical capacities. Dr. Odjegba completed a “Physical Capacities
Form,” in which he indicated, inter alia, that Hargress, due to her back ache and
hip pain, could sit for less than 30 minutes, stand for less than 15 minutes, and
walk for less than 15 minutes at one time, that she could perform a task for only 30
minutes before needing a rest or break, and that he expected Hargress would need
to lie down, sleep, or sit with her legs elevated for 6 hours in an 8-hour daytime
period. The ALJ discounted Dr. Odjegba’s opinion on the form because it was
inconsistent with Dr. Odjegba’s other treatment records and inconsistent with the
record as a whole.
B. Appeals Council’s Decision
Hargress asked the Appeals Council to review the ALJ’s decision, and
submitted additional medical records, some of which post-dated the ALJ’s hearing
decision of February 24, 2015. The Appeals Council denied her request for
review. The Appeals Council stated that it had “looked at” the new records “from
Jane Teschner, MD, dated March 2, 2015 through October 1, 2015,” “Daniel
Sparks, MD, dated March 2, 2015 through June 15, 2015,” and “Trinity Medical
Center, dated July 28, 2015,” and noted that the ALJ had decided Hargress’s case
“through February 24, 2015.” The Appeals Council found that “[t]his new
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information is about a later time” and “[t]herefore, it does not affect the decision
about whether you were disabled beginning on or before February 24, 2015.” The
Appeals Council advised Hargress that if she wanted the agency to consider
whether she was disabled after February 24, 2015, she needed to apply again and
that the new information she had submitted was “available in [her] electronic file
for [her] to use in [her] new claim.” 1
II. DISCUSSION
On appeal, Hargress argues that: (1) the ALJ improperly assigned little
weight to the opinion of Dr. Odjegba; (2) the ALJ’s finding at the fifth step that
Hargress was not disabled was not supported by substantial evidence; (3) the ALJ
failed to comply with Social Security Ruling 16-3p (“SSR 16-3p”), enacted after
the ALJ’s decision, in evaluating the intensity and persistence of her symptoms;
and (4) the Appeals Council failed to properly consider her new evidence from
Drs. Teschner and Sparks and Trinity Medical Center. We conclude that none of
these arguments has merit. 2
1
The Appeals Council considered Hargress’s other “additional evidence” submitted with
her request for review and “found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.” On appeal, Hargress does not challenge this
determination by the Appeals Council.
2
This Court reviews the ALJ’s decision “to determine whether it is supported by
substantial evidence,” and the ALJ’s application of legal principles de novo. Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.”
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
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A. Treating Physician’s Opinion
The ALJ considers many factors when weighing medical evidence,
including whether an opinion is well-supported and consistent with the record. 20
C.F.R. §§ 404.1527(c), 416.927(c). A treating physician’s medical opinion must
be given “substantial or considerable weight” unless “good cause” is shown to give
it less weight. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011) (quotation marks omitted); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
“With good cause, an ALJ may disregard a treating physician’s opinion, but he
must clearly articulate [the] reasons for doing so.” Winschel, 631 F.3d at 1179
(quotation marks omitted) (alteration in original). Good cause exists when
“the (1) treating physician’s opinion was not bolstered by the evidence;
(2) evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Id. (quotation
marks omitted).
Here, substantial evidence supports the ALJ’s decision to give little weight
to Dr. Odjegba’s opinion about Hargress’s physical capacities. The ALJ’s stated
reason for discounting Dr. Odjegba’s opinion—that it was inconsistent with his
own medical records and the record as a whole—was adequate and amounts to
good cause. See id.
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Moreover, the ALJ’s stated reason is supported by substantial evidence. As
discussed more fully below, Dr. Odjegba and other medical providers indicated in
their treatment notes that Hargress improved with consistent medication and
physical therapy; had only mild abnormalities of her spine and joints, usually
denied fatigue; was able to exercise and do other activities; and had excellent
rehabilitation potential with physical therapy. Additionally, just one month before
completing the “Physical Capacities Form,” Dr. Odjegba saw Hargress in a follow-
up visit and recommended that she walk 30 minutes every other day for weight
loss, which directly contradicted his opinion on the form that Hargress could only
walk for less than 15 minutes at a time.
B. Hargress’s RFC to Perform Full Range of Unskilled Sedentary Work
For purposes of steps four and five, the ALJ found that Hargress could
perform a full range of sedentary, unskilled work as defined in 20 C.F.R.
§§ 404.1567(a) and 416.967(a). Sedentary work involves lifting no more than 10
pounds at a time, occasionally lifting and carrying small articles, sitting, and
occasionally walking and standing. 20 C.F.R. §§ 404.1567(a), 416.967(a).
Unskilled work “needs little or no judgment to do simple duties that can be learned
on the job in a short period of time.” 20 C.F.R. §§ 404.1568(a), 416.968(a).
In making his RFC finding, the ALJ took into consideration Hargress’s
symptoms for each of her impairments and the extent to which the symptoms could
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reasonably be accepted as consistent with the objective medical evidence and other
evidence. The ALJ limited Hargress to “work at no greater than the sedentary
exertional level” to “accommodate her musculoskeletal pain and restriction as well
as any limitation she experiences secondary to her hypertension, diabetes mellitus,
or obesity.” The ALJ also limited Hargress to unskilled work to lessen her
exposure to people or things that could exacerbate her anxiety, which the ALJ
found was a non-severe impairment.
The ALJ’s finding that Hargress had the RFC to perform a full range of
sedentary, unskilled work is supported by substantial evidence. Although Hargress
sought treatment for lower back and hip pain, doctors’ treatment notes repeatedly
described Hargress’s lumbar spine and joint problems as “mild,” with full range of
motion and no gait disturbance. Moreover, both her lower back and hip pain and
her diabetes improved with medication. Indeed, Hargress’s diabetes was
effectively controlled by medication and presented a problem only when she was
noncompliant with medication or reported having gone for a period of time without
her medication.
Hargress was routinely prescribed physical therapy for her back and hip.
Her physical therapist reported that Hargress made mostly good progress, that
Hargress’s pain was made better by heat, that Hargress was able to walk and squat
and to exercise at home, and that Hargress had excellent rehabilitation potential.
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Hargress herself reported that her activities included taking care of her son, her
mentally disabled brother, and her cat, working on the computer, watching
television, and talking on the phone, that she had no problems caring for herself,
and that she was able to do household chores, go to church, handle money, and
shop. At doctor’s visits, Hargress frequently denied experiencing fatigue, and
none of her doctors ordered her to rest or elevate her feet for a significant portion
of the day. Apart from Dr. Odjegba’s Physical Capacities Form, no healthcare
provider limited Hargress’s activities or ordered bedrest. In fact, Dr. Odjegba
instructed Hargress to walk in order to lose weight. Accordingly, substantial
evidence supported the ALJ’s residual functional capacity determination that
Hargress could perform a full range of sedentary, unskilled work.
The ALJ concluded that although Hargress could not perform her past
relevant work, Hargress was “not disabled” because a significant number of
sedentary, unskilled jobs existed in the national economy that she could perform
despite her impairments. Hargress complains that the ALJ reached this finding
without consulting a vocational expert. But, as the ALJ explained, in light of
Hargress’s RFC (full range of sedentary work), age (40), education (high school,
English speaker), and work experience (skills not transferable), the finding of “not
disabled” was directed by the vocational grids. See 20 C.F.R. §§ 404.1569,
416.969, see also 20 C.F.R. pt. 404, subpt. P, app. 2, §§ 200.00(a), 201.00, 201.28.
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Given that Hargress was able to perform a full range of sedentary work and did not
have any non-exertional impairments that significantly limited her basic work
skills, the ALJ permissibly relied on the vocational grids to determine Hargress’s
ability to adjust to other work in the national economy. See Phillips v. Barnhart,
357 F.3d 1232, 1239-40, 1242 (11th Cir. 2004) (explaining that an ALJ’s exclusive
reliance on the grids is inappropriate when the claimant cannot perform a full range
of work at a given residual functional level or where the claimant has non-
exertional impairments that limit basic work skills). Thus, the ALJ was not
required to consult a vocational expert to make his fifth-step finding. See id.
C. SSR 16-3 p
In evaluating Hargress’s subjective symptoms, the ALJ stated that it was
following the “two-step process” that required him (1) to determine whether there
were medically determinable physical or mental impairments that could reasonably
be expected to produce the claimant’s pain or other symptoms and (2) if so, to
“evaluate the intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the claimant’s function.” As
to the second step, the ALJ explained that he “must make a finding on the
credibility of the [claimant’s] statements based on a consideration of the entire case
record.” The ALJ described claimant’s statements of her symptoms, which
included, inter alia, extreme fatigue and chronic pain measuring 10 on a scale of 1
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to 10, which, along with numbness, made her unable to sit for more than ten
minutes and required her to alternate between sitting and lying down throughout
the day.
In applying the two-step process, the ALJ found that Hargress had medically
determinable impairments that could reasonably be expected to cause the
symptoms Hargress alleged, but that her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.” As discussed above, the ALJ then devoted
several lengthy paragraphs to explaining why the record as a whole did not support
Hargress’s statements about the limiting effects of her symptoms.
On appeal, Hargress argues that her case should be remanded because the
ALJ failed to evaluate the intensity, persistence, and limiting effects of her
symptoms in accordance with SSR 16-3p. SSR 16-3p rescinded SSR 96-7p, which
provided guidance on how to evaluate the credibility of a claimant’s statements
about subjective symptoms like pain. See SSR 16-3p, 81 Fed. Reg. 14166, 14167
(March 9, 2016); SSR 96-7p, 61 Fed. Reg. 34,483 (June 7, 1996). The new ruling
eliminated the use of the term “credibility” in the sub-regulatory policy and
stressed that when evaluating a claimant’s symptoms the adjudicator will “not
assess an individual’s overall character or truthfulness” but instead “focus on
whether the evidence establishes a medically determinable impairment that could
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reasonably be expected to produce the individual’s symptoms and given the
adjudicator’s evaluation of the individual’s symptoms, whether the intensity and
persistence of the symptoms limit the individual’s ability to perform work-related
activities . . . .” SSR 16-3p, 81 Fed. Reg. 14166, 14171. SSR 16-3p further
explains that adjudicators will consider whether the “individual’s statements about
the intensity, persistence, and limiting effects of symptoms are consistent with the
objective medical evidence and other evidence of record.” Id. at 14170.
Hargress argues that the ALJ violated SSR 16-3p in evaluating her
subjective symptoms and points to the ALJ’s finding that Hargress’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” The problem for
Hargress is that SSR 16-3p became effective March 28, 2016, a year after the
ALJ’s hearing decision. See 81 Fed. Reg. 15776 (March 24, 2016) (amending the
effective date of SSR 16-3p from March 16, 2016 to March 28, 2016).
While Hargress argues that this Court should apply SSR 16-3p retroactively,
she does not cite any binding precedent to support her argument. Moreover, the
U.S. Supreme Court has held that administrative rules generally are not applied
retroactively. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.
Ct. 468, 471 (1988) (“Retroactivity is not favored in the law . . . . and
administrative rules will not be construed to have retroactive effect unless their
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language requires this result.”). SSR 16-3p contains no language suggesting, much
less requiring, retroactive application. Indeed, SSR 16-3p explicitly states that it
became effective on March 28, 2016, which “actually points the other way.” See
Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1351 (11th Cir. 2005) (declining
to apply state agency rule retroactively where the rule expressly provided an
effective date, explaining that “[t]here is no point in specifying an effective date if
a provision is to be applied retroactively”). Thus, SSR 16-3p applies only
prospectively and does not provide a basis for remand. 3
D. Appeals Council’s Refusal to Consider New Evidence
Generally, a claimant may present evidence at each stage of the
administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1261 (11th Cir. 2007); 20 C.F.R. §§ 404.900(b), 416.1400(b). If a claimant
presents evidence after the ALJ’s decision, the Appeals Council must consider it if
it is new, material, and chronologically relevant. 20 C.F.R. §§ 404.970(b),
3
In any event, even if SSR 16-3p applied, the ALJ’s use of the words “not entirely
credible” would not warrant a remand. Read in context, the ALJ’s finding did not assess
Hargress’s overall character or truthfulness, but rather the ALJ, consistent with the ruling’s two-
step process for evaluating symptoms, assessed Hargress’s subjective complaints of disabling
pain and fatigue and concluded that they were not consistent with the other evidence in the
record. See SSR 16-3p, 81 Fed. Reg. 14166, 14170 (explaining that the ALJ will consider
whether the claimant’s statements about the intensity, persistence, and limiting effects of
symptoms “are consistent with” the record as a whole). Thus, regardless of which policy applies,
the ALJ’s finding does not amount to reversible error.
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416.1470(b) (2016);4 see also Washington v. Soc. Sec. Admin., 806 F.3d 1317,
1320 (11th Cir. 2015). Evidence is material if a reasonable possibility exists that
the evidence would change the administrative result. Washington, 806 F.3d at
1321. New evidence is chronologically relevant if it “relates to the period on or
before the date of the [ALJ’s] hearing decision.” 20 C.F.R. § 404.970(b),
416.1470(b) (2016). The Appeals Council must grant the petition for review if the
ALJ’s “action, findings, or conclusion is contrary to the weight of the evidence,”
including the new evidence. Ingram, 496 F.3d at 1261 (quotation marks omitted). 5
Here, the record does not support Hargress’s claim that the Appeals Council
refused to consider her new evidence—the medical records from Drs. Teschner
and Sparks and from Trinity Medical Center dated after the ALJ’s hearing
decision—without considering whether it was chronologically relevant. The
Appeals Council stated that the new records were “about a later time” than the
ALJ’s February 24, 2015 hearing decision and “[t]herefore” the new records did
“not affect the decision about whether [Hargress was] disabled beginning on or
before February 24, 2015.” In short, the Appeals Council declined to consider
these new medical records because they were not chronologically relevant. The
4
Effective January 17, 2017, 20 C.F.R. §§ 404.970 and 416.1470 were amended, but
Hargress does not contend these amendments apply to, or affect the outcome of, her appeal. See
81 Fed. Reg. 90987, 90994, 90996 (Dec. 16, 2016).
5
We review the Appeals Council’s refusal to consider new evidence de novo.
Washington, 806 F.3d at 1321.
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Appeals Council was not required to give a more detailed explanation or to address
each piece of new evidence individually. See Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 784 (11th Cir. 2014).
Further, we agree that the new medical records were not chronologically
relevant. These medical records primarily consisted of these medical providers’
progress notes for Hargress’s treatment for her low back pain and diabetes between
March and October 2015, including regular glucose blood tests, referrals for
physical therapy, and diagnostic imaging of her lumbar spine (CT scan and MRI).
Accordingly, they do not relate to the period before the ALJ’s February 24, 2015
decision.
Hargress points to Washington v. Social Security Administration, in which
this Court “recognized that medical opinions based on treatment occurring after the
date of the ALJ’s decision may be chronologically relevant.” 806 F.3d at 1322. In
Washington, the claimant submitted to the Appeals Council a psychologist’s
evaluation and accompanying opinion about the degree of the claimant’s mental
limitations, which were prepared seven months after the ALJ’s decision. Id. at
1319-20. This Court concluded that the psychologist’s materials were
chronologically relevant because: (1) the claimant described his mental symptoms
during the relevant period to the psychologist, (2) the psychologist had reviewed
the claimant’s mental health treatment records from that period, and (3) there was
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no evidence of the claimant’s mental decline since the ALJ’s decision. Id. at 1319,
1322-23 (limiting its holding to “the specific circumstances of this case”).
Here, however, nothing in these new medical records indicates the doctors
considered Hargress’s past medical records or that the information in them relates
to the period at issue, which materially distinguishes this case from Washington.
Accordingly, the Appeals Council did not err in concluding that the new medical
records from Drs. Teschner and Sparks and Trinity Medical Center were not
chronologically relevant. Because the new evidence was not chronologically
relevant, the Appeals Council was not required to consider it. Accordingly, we do
not address Hargress’s argument that the denial of benefits was erroneous when
this new evidence is considered.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order affirming the
denial of Hargress’s applications for disability insurance benefits and supplemental
security income.
AFFIRMED.
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