CHESHIRE

v.

COMMISSIONER OF SOCIAL SECURITY

KILOLO KIJAKAZI,¹ Acting Commissioner of Social Security,

Defendant. /

OPINION AND ORDER2

I. Status

Stephanie Cheshire (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s (“SSA(’s)”) final decision denying her claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff’s alleged inability to work is the result of plantar fasciitis, scoliosis, and arthritis in her spine. Transcript of Administrative Proceedings

On February², 2018, Plaintiff filed an application for SSI, alleging a disability onset date of June 15, 2014. Tr. at 230-39, 248-53.3 On February⁵, 2018, Plaintiff filed an application for DIB, alleging the same June 15, 2014 disability onset date. Tr. at 242-43, 246-47.4 The applications were denied initially, Tr. at 86-91, 92, 129, 130-35 (DIB); Tr. at 77-85, 93, 125, 126-28 (SSI), and upon reconsideration, Tr. at 94-103, 118, 138, 139-44 (DIB); Tr. at 104-17, 119, 145, 146-51 (SSI). On October 24, 2019, an Administrative Law Judge (“ALJ”) held a hearing, during which he heard from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). See Tr. at 35-76. On December 12, 2019, the ALJ issued a Decision finding Plaintiff not disabled through the date of the Decision. See Tr. at 18-29.

Thereafter, Plaintiff requested review of the Decision by the Appeals Council and submitted additional evidence in the form of a brief authored by Plaintiff’s representative and three pages of medical records. Tr. at 2, 4-5

Plaintiff’s request for review, Tr. at 1-3, making the ALJ’s Decision the final decision of the Commissioner. On September 24, 2020, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1) seeking judicial review of the Commissioner’s final decision.

On appeal, Plaintiff argues the Appeals Council erred in failing to properly evaluate whether the medical evidence submitted to it was material to the period adjudicated by the ALJ. Joint Memorandum (Doc. No. 20; “Joint Memo”), filed July 15, 2021, at 5-7. After a thorough review of the entire record and consideration of the parties’ arguments, the undersigned finds that the Commissioner’s final decision is due to be affirmed. II. The ALJ’s Decision When determining whether an individual is disabled,⁵ an ALJ must follow the five-step sequential inquiry set forth in the Regulations, determining as appropriate whether the claimant (1) is currently employed or engaging in substantial gainful activity; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the

through the date of th[e D]ecision.” Tr. at 28 (emphasis and citation omitted).

III. Standard of Review

This Court reviews the Commissioner’s final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence.’” Doughty v. Apfel, 245 F. 3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F. 3d 1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F. 2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met when there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Falge, 150 F. 3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); Samuels v. Acting Comm’r of Soc. Sec., 959 F. 3d 1042, 1045 (11th Cir. 2020) (citation omitted). It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F. 2d 1143, 1145 (11th Cir. 1991) (citation omitted). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence—even if the evidence preponderates against the Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1158-59 (11th Cir. 2004) (per curiam).

IV. Discussion

Plaintiff challenges the Appeals Council’s denial of review for “failing to properly evaluate whether records submitted were material to the period of time adjudicated by the [ALJ].” Joint Memo at 5 (emphasis and citation omitted). In essence, Plaintiff contends that the three pages of medical records submitted to the Appeals Council were “not readable” because “only half of

[each] page is visible in the record.” Id. at 6. Plaintiff contends her current counsel “was not the representative at the administrative level and does not know whether the unreadable record was just the way it was copied in connection with this federal appeal, or whether the Appeals Council received the copy, as it appears in the record.” Id. Plaintiff requests, in the event the Appeals Council did receive a better copy than the one set forth in the administrative transcript, “that the court direct Defendant to amend the record, so that it contains a readable copy of the records submitted to the Appeals

Council.” Id. at 7. “If the Appeals Council did not receive a better copy,” states Plaintiff, “the Appeals Council should have notified [Plaintiff] and given [Plaintiff] an opportunity to submit a better copy.” Id. Responding, Defendant does not make any representation about the quality of the copy actually received by the Appeals Council. See id. at 7-11. Rather, Defendant contends the Appeals Council properly denied review, that Plaintiff has not shown a breach of any duty by the Appeals Council or harmful error, and that Plaintiff’s argument is based upon speculation. Id. at 11. With few exceptions, a claimant may present new evidence at each stage of the administrative process, including to the Appeals Council. See 20 C.F.R. §§ 404.900(b), 416.1400(b). When the Appeals Council is presented with evidence that was not before the ALJ, the Appeals Council must consider the evidence if it is “new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). In addition, a claimant must show good cause for submitting new evidence to the Appeals Council. See 20 C.F.R. §§ 404.970(b), 416.1470(b).

Although the Appeals Council is “not required to give a . . . detailed explanation or to address each piece of new evidence individually,” Hargress v. Soc. Sec. Admin., Comm’r, 883 F. 3d 1302, 1309 (11th Cir. 2018) (citing Mitchell v. Comm’r, Soc. Sec. Admin., 771 F. 3d 780, 784 (11th Cir. 2014)), if the Appeals

Council “erroneously refuses to consider evidence, it commits legal error and remand is appropriate,” Washington v. Soc. Sec. Admin., Comm’r, 806 F. 3d 1317, 1320 (11th Cir. 2015). “When a claimant properly submits new evidence to the Appeals Council, a reviewing court must consider whether that new evidence renders the denial of benefits erroneous.” Banks for Hunter v. Comm’r, Soc. Sec. Admin., 686 F. App’x 706, 709 (11th Cir. 2017) (citing Ingram v. Comm’r of Soc. Sec. Admin., 496 F. 3d 1253, 1262 (11th Cir. 2007)). Here, Plaintiff submitted three pages of medical evidence, through her then-counsel, to the Appeals Council in connection with her request for review.

See Tr. at 7-9. The pages contain very large print and are cut off in places; it is possible that the person submitting the copy, whether intentionally or not, “zoomed” in on certain areas of the pages to the exclusion of other areas. See Tr. at 7-9. The result is partial copies of the three pages of evidence. Readable portions of the copies include Plaintiff’s name; date of birth; age; sex; the fact that the record documented a “Follow-up visit”; that it was done via “video chat”; that she was there to discuss “res ___ photosensitivity”; Plaintiff’s diagnoses; and the notation: “Patient with positive ANA test with fatigue, joint pain a___ diseases. We will follow-up results.” Tr. at 7-9. The Appeals Council recognized that Plaintiff submitted “undated medical records from Central Florida Rheumatology (3 pages)” but found the evidence “does not show a reasonable probability that it would change the outcome of the [D]ecision.” Tr. at 2. The Appeals Council elected “not [to] exhibit this evidence.” Tr. at 2. Plaintiff has not shown reversible error on the part of the Appeals Council. Plaintiff makes no attempt to explain the import of the missing parts of the medical record, and no attempt to show how it was material other than to state it documented Plaintiff “had a positive ANA test, systemic lupus, chronic fatigue, and joint pain.” Joint Memo at 6. But, the ALJ was aware of Plaintiff’s allegations of pain and fatigue and that “laboratory testing showed positive ANA.” Tr. at 24. Plaintiff provides no authority that places a duty on the part of the Appeals Council to notify a representative if the Council believes it has received a partial copy of a record; indeed, Plaintiff’s argument in this regard is based upon speculation that a partial copy was not intended to be provided. Further, the Court must presume that the administrative transcript is a full and accurate transcript of what was actually submitted at the administrative level, including to the Appeals Council, especially in the absence of any credible evidence to the contrary. Ultimately, Plaintiff has not shown that the medical evidence submitted to the Appeals Council carries a reasonable possibility of changing the administrative result.

V. Conclusion

After a thorough review of the entire record, the undersigned finds that the ALJ’s Decision is supported by substantial evidence, and the Appeals

Council did not reversibly err. In light of the foregoing, it is ORDERED: 1. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g), and pursuant to § 1383(c)(3), AFFIRMING the Commissioner’s final decision.

2. The Clerk is further directed to close the file.

DONE AND ORDERED in Jacksonville, Florida on March 28, 2022.

1a R : Mt

JAMES R. KLINDT

United States Magistrate Judge kaw Copies: Counsel of Record