[Alicia S.] v. Kijakazi, No. 22-21947-CV, 2023 WL 7129987 (S.D. Fla. Sept. 27, 2023)

[Alicia S.] v. Kijakazi, No. 22-21947-CV, 2023 WL 7129987 (S.D. Fla. Sept. 27, 2023) (Decision by U.S. Magistrate Judge Eduardo I. Sanchez, by consent)

Briefs for purchase:

• Plaintiff’s Motion for Summary Judgment

• Plaintiff’s Reply Brief 

Topics addressed:

• Appeals Council - new evidence

• RFC - lack of support

• Medical opinions (new law) - persuasiveness

• Subjective complaints - good work history

• Subjective complaints - daily activities

• Vocational testimony - hypothetical question 
  

Rulings addressed:

• Social Security Ruling 16-3p 

Issues briefed:

1) The Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of the newly submitted evidence.

2) The ALJ’s reasons for finding the opinion of Dr. G., Plaintiff’s longtime treating pulmonologist, to be “unpersuasive” are not supported by substantial evidence.

3) The ALJ’s residual functional capacity (“RFC”) assessment is not supported by substantial evidence.

4) The ALJ’s stated reasons for discrediting Plaintiff’s testimony are not based on substantial evidence.

5) The Acting Commissioner failed to sustain her burden of establishing that there is other work in the national economy that Plaintiff can perform.

Court decision:
The court held that the Appeals Council erred in refusing to consider new evidence of a report by Dr. Levine “because that new evidence is material, that is, there is a reasonable probability that it would change the outcome of the Commissioner’s decision in this case, and because that evidence is chronologically relevant as it relates to [Plaintiff’s] impairment and ability to work during the relevant period being considered by the ALJ.” 2023 WL 7129987, at *6. The court elaborated:

“‘With a few exceptions, the claimant is allowed to present new evidence at each stage of this administrative process,’ including before the Appeals Council.” Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015) (quoting Ingram v. Comm’r of Soc., Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)). Where the evidence submitted by the claimant is “new, material, and chronologically relevant,” and good cause exists for the claimant’s failure “to incorporate such evidence into the record in a prior proceeding,” the Appeals Council is required to consider it. See Id. (citing 20 C.F.R. § 404.970); 42 U.S.C. § 405(g).

New evidence is material where “there is a reasonable probability that the additional evidence would change the outcome of the decision.” See 20 C.F.R. § 404.970(a)(5). New evidence is chronologically relevant if “it relates to the period on or before the date of the administrative law judge hearing decision.” Stone v. Soc. Sec. Admin., 658 F. App’x 551, 553 (11th Cir. 2016) (citing 20 C.F.R. §§ 404.70(b), 416.1470(b)).

"Whether evidence is ‘new, material, and chronologically relevant’ is a question of law subject to de novo review.” Clough v. Soc. Sec. Admin., Comm’r, 636 F. App’x 496, 497 (11th Cir. 2016); see also, e.g., Pupo, 17 F.4th at 1063; Washington, 806 F.3d at 1321. “[W]hen the Appeals Council erroneously refuses to consider evidence, it commits legal error and remand is appropriate.” Washington, 806 F.3d at 1321.

Id. at *7 (citing Pupo v. Comm’r, Soc. Sec. Admin., 17 F.4th 1054, 1060 (11th Cir. 2021)).

The court concluded that “[a]pplying these standards,” the Appeals Council “committed legal error when it refused to consider the new evidence that was submitted by [Plaintiff], and remand is therefore appropriate.” Id. The court then explained its reasoning as follows:

1)  “Dr. Levine’s Report provides new, non-cumulative evidence that was never considered by the ALJ.”

2) "The evidence furnished by Dr. Levine's report is material and, if considered, there is a reasonable probability that it would change the outcome of the disability decision in this case." This is based on three findings:

       (a) “[T]here is a reasonable probability that consideration of the new evidence would lead to a conclusion that [Plaintiff] possesses several impairments that — in isolation or through combined effect — meet or equal the criteria of Listings 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and/or 12.15 (trauma-and stressor-related disorders), which would qualify [Plaintiff] as disabled.”

       (b) “The record in this case also establishes that there is a reasonable probability that consideration of the new evidence submitted by [Plaintiff] would result in a changed determination concerning [Plaintiff]’s residual functional capacity to perform work.”

       (c) “There is a reasonable probability that the evidence provided by Dr. Levine would change the administrative outcome concerning the existence of jobs that [Plaintiff] would be able to perform.”

3) “Dr. Levine’s report is chronologically relevant because it presents evidence of a psychological impairment — newly-diagnosed PTSD — that originated . . . in 1997 and that [Plaintiff] has reportedly been suffering from since before the ALJ’s decision and throughout the period of [Plaintiff]’s claimed disability.

Id. at *7-11 (emphasis added).