BURGOS

v.

COMMISSIONER OF SOCIAL SECURITY

Plaintiff seeks judicial review of the denial of her claim for a period of disability and Supplemental Security Income (“SSI”). As no basis exists for a remand under sentence six of 42 U.S.C. § 405(g), the Commissioner’s decision is affirmed.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability and SSI (Tr. 312-17). The Social Security Administration (“SSA”) denied Plaintiff’s claims both initially and upon reconsideration (Tr. 145, 174, 179-94). Thereafter, Plaintiff requested an administrative hearing (Tr. 195). Per Plaintiff’s request, the ALJ held a hearing at

A few weeks later, Plaintiff requested review by the Appeals Council (Tr. 307-09). Following that, in June 2020, Plaintiff’s counsel submitted additional records from Tampa Family Health Centers (“TFHC”) for the period from August 2019 through February 2020 (Tr. 83-104). Subsequently, the Appeals Council denied review on September¹, 2020 (Tr. 1-9). In denying review, the only additional evidence the Appeals Council exhibited consisted of the three-page Request for Review and one-page Representative Brief, both submitted by Plaintiff’s counsel (Tr. 5-6, 307-09, 415). In denying review, however, the Appeals Council considered the treatment records from TFHC, finding that they did not show a reasonable probability that the treatment records would change the outcome of the decision and, for the sole treatment record post-dating the ALJ’s decision, that such additional evidence did not relate to the period at issue (Tr. 2). On the same day the Appeals Council issued its denial, Plaintiff’s counsel submitted additional records from Gracepoint Mental Health Center (“Gracepoint”) (Tr. 70-82). Nine days later, after the Appeals Council already issued its decision, Plaintiff’s counsel submitted additional treatment records from Cora Physical Therapy (“Cora”) (Tr. 10-30). Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). B. Factual Background and the ALJ’s Decision Plaintiff, who was born in 1975, claimed disability beginning January¹, 2013 (Tr. 312).2 Plaintiff completed two years of college (Tr. 126, 328). Plaintiff’s past relevant work experience included work as a molded frames assembler, a janitor, and a sales promotion representative (Tr. 126-27, 328). Plaintiff alleged disability due to memory problems, circulation problems, bipolar disorder, panic attacks, anxiety, diabetes, fibromyalgia, and pain throughout her body (Tr. 327).

In rendering the administrative decision, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since September 26, 2017, the application date (Tr. 46). After conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff had the following severe impairments: major depressive disorder, generalized anxiety disorder, panic disorder, bipolar disorder,

fibromyalgia, Type² diabetes mellitus, and obesity (Tr. 46). Notwithstanding the noted impairments, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix¹ (Tr. 47). The ALJ then concluded that Plaintiff retained a residual functional capacity (“RFC”) to perform light work with the following limitations: limited to no more than occasional stooping, kneeling, crouching, crawling, and climbing of ladders, ropes, scaffolds, ramps, and stairs; could balance frequently; could frequently reach overhead with

Considering Plaintiff’s noted impairments and the assessment of a vocational expert (“VE”), however, the ALJ determined Plaintiff could not perform her past relevant work (Tr. 63). Given Plaintiff’s RFC and background, including Plaintiff’s designation as a younger individual and inability to communicate in English, the VE testified that Plaintiff could perform other jobs existing in significant numbers in the national economy, such as a laundry folder, a mail clerk, and a car wash attendant (Tr. 64, 128). Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 65).

II.

To be entitled to benefits, a claimant must be disabled, meaning the claimant must be unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A “physical or mental impairment” is an “impairment that results from anatomical, physiological, or psychological abnormalities, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D). To regularize the adjudicative process, the SSA promulgated the detailed regulations currently in effect. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. § 416.920(a). Under this process, the ALJ must determine, in sequence, the following: whether the claimant is currently engaged in substantial gainful activity; whether the claimant has a severe impairment, i.e., one that significantly limits the ability to perform work-related functions; whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404, Subpart P, Appendix¹; and whether the claimant can perform his or her past relevant work. 20 C.F.R. § 416.920(a)(4)(i)-(iv). If the claimant cannot perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ to decide if the claimant can do other work in the national economy in view of his or her age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(v). A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 416.920(g)(1).

A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176,

1178 (11th Cir. 2011) (citation and internal quotation marks omitted). While the court reviews the Commissioner’s decision with deference to the factual findings, no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F. 3d 1253, 1260 (11th Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh the evidence or substitute its own judgment for that of the ALJ, even if it finds that the evidence preponderates against the ALJ’s decision. Winschel, 631 F. 3d at 1178 (citations omitted); Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983) (citations omitted). The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient reasoning for determining that he or she has conducted the proper legal analysis, mandates reversal. Ingram, 496 F. 3d at 1260 (citation omitted). The scope of review is thus limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations omitted).

III.

Plaintiff argues that the matter should be remanded back to the Commissioner under sentence six of 42 U.S.C. § 405(g) for consideration of new, non-cumulative, material evidence. When reviewing final agency decisions on Social Security benefits, the exclusive methods by which district courts may remand to the Commissioner of Social Security are set forth in sentence four and sentence six of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 296 (1993). Sentence six provides: The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ….

42 U.S.C. § 405(g). Sentence six constitutes the only way in which a district court may remand a case to the Commissioner for consideration of new evidence not presented to the Commissioner at any stage of the administrative process and requiring further review. See Ingram, 496 F. 3d at 1267-68; see also Jones v. Comm’r of Soc. Sec. Admin., Miami S. Region, 497 F. App’x 888, 891 (11th Cir. 2012).3 To

A. TFHC Treatment Records

Turning first to the TFHC treatment records, Plaintiff fails to demonstrate error. On June 24, 2020, Plaintiff submitted the treatment records from TFHC prior to the issuance of the Appeals Council’s denial of review on September¹, 2020 (Tr. 1-9, 83-104). In denying review, the Appeals Council explicitly addressed the treatment records from TFHC, stating:

You also submitted evidence from Tower Radiology, dated August 27, 2019 (1 page); and Tampa Family Health Center, dated September 12, 2019 through October 22, 2019 (10 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.

You submitted evidence from Tampa Family Health Center, dated February 6, 2020 (6 pages). The Administrative Law Judge decided your case through November⁴, 2019. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before November⁴, 2019.

If you want us to consider whether you are disabled after November⁴, 2019, you need to apply again.

(Tr. 2). As Plaintiff submitted the TFHC treatment records during the administrative proceedings, and the Appeals Council explicitly addressed those records and found that they did not establish a reasonable probability that the evidence would change the outcome of the decision nor related to the period at issue, no basis for remand under sentence six exists as to the TFHC treatment records. Nothing more was required of the Appeals Council, and Plaintiff does not argue to the contrary nor challenge the Appeals Council’s denial of review. See Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F. 3d 847, 852-53 (11th Cir. 2015) (concluding that the Appeals Council is not required to make specific findings of fact when it denies review, regardless of whether the new evidence is deemed cumulative or not chronologically relevant); Mitchell v. Comm’r of Soc. Sec., 771 F. 3d 780, 784-85 (11th Cir. 2014) (concluding that, where the Appeals Council accepted the new evidence and stated that it denied review because the additional evidence failed to establish error in the ALJ’s decision, the Appeals Council adequately reviewed the new evidence and was not required to provide a detailed rationale for denying review).

B. Gracepoint and Cora Treatment Records

Next, as to the Gracepoint and Cora treatment records, Plaintiff likewise failed to establish error. Plaintiff submitted the Gracepoint treatment records on September¹, 2020, the same date the Appeals Council issued its denial of review, and thus did not afford the Appeals Council an opportunity to review the evidence (Tr. 1-9, 70-82). Plaintiff submitted the Cora treatment records on September 10,

2020, after the Appeals Council issued its denial of review, similarly failing to afford the Appeals Council an opportunity to review the evidence (Tr. 1-9, 10-30). Accordingly, since the Gracepoint and Cora treatment records were not considered during the administrative proceedings, a determination must be made as to whether the Gracepoint and Cora treatment records constitute new, non-cumulative,

material evidence and, if so, whether good cause existed for Plaintiff’s failure to submit the evidence during the administrative proceedings. Plaintiff first argues that the Gracepoint and Cora treatment records are new, as they did not exist at the time of the ALJ’s decision, since the Gracepoint treatment records cover a period from October 2019 through May 2020 and the

Cora treatment records cover a period from January 2020 through March 2020, while the ALJ issued his decision on November⁴, 2019 (Tr. 10-30, 37-69, 70-82). As the Commissioner contends, however, the question is not whether the treatment records existed at the time of the ALJ’s decision but whether they existed at the time of the administrative proceedings, which necessarily includes the proceedings before the Appeals Council. Namely, with a few exceptions, a Social Security claimant may present new evidence at each stage of the administrative review process, including before the Appeals Council. Washington v. Social Sec. Admin., Comm’r, 806 F. 3d 1317, 1320 (11th Cir. 2015); see also Pupo v. Comm’r, Soc. Sec. Admin., 17 F. 4th 1054, 1063 (11th Cir. 2021). While the Appeals Council maintains discretion not to review the ALJ’s denial of benefits, the Appeals Council must consider new, material, and chronologically relevant evidence submitted by the claimant. Washington, 806 F. 3d at 1320; see 20 C.F.R. § 416.470(b). If the Appeals Council refuses to consider new evidence submitted to it and denies review, the Appeals Council’s decision is subject to judicial review. Washington, 806 F. 3d at 1320. Thereafter, if a court determines that the Appeals Council erroneously refused to consider evidence, remand is warranted. Washington, 806 F. 3d at 1321. For purposes of considering whether evidence is new, therefore, the administrative proceedings include not only the proceedings before the ALJ but also the proceedings before the Appeals Council. See Ingram, 496 F. 3d at 1267 (“Our settled precedents establish that a sentence six remand is available when evidence not presented to the Commissioner at any stage of the administrative process requires further review.”) (emphasis added); see also Lindsey v. Comm’r of Soc. Sec., 741 F. App’x 705, 711 (11th Cir. 2018) (finding that evidence created after the ALJ’s decision but before the Appeals Council’s denial of review could have been submitted to the Appeals Council as the plaintiff failed to show that such records did not exist before the Appeals Council’s decision and the plaintiff knew of the existence of the records because he had treated with those medical sources on those dates and additionally finding that the plaintiff had not demonstrated good cause for the failure to submit such records by showing that he could not have obtained the records earlier); cf. Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (stating that, under sentence six of § 405(g), “the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and the evidence might have changed the outcome of the prior proceeding”); cf. Jones, 497

F. App’x at 892 (“New evidence is evidence that was not in existence or available to the claimant at the time of the administrative proceeding.”). As the Commissioner contends, Plaintiff failed to establish that the treatment records are new or that good cause existed for her failure to submit the treatment records during the administrative proceedings. In this instance, the Gracepoint and

Cora treatment records were created and therefore existed anywhere from four to eleven months before the Appeals Council denied review. Such records thus cannot be considered new for purposes of a remand under sentence six, as they existed during the administrative proceedings. Moreover, Plaintiff offers no explanation or justification, such as an inability to obtain the records, for her failure to timely submit any of the treatment records prior to the Appeals Council’s denial of review.⁴ She therefore did not establish good cause for her failure to submit such records during the administrative proceedings. Beyond that, Plaintiff failed to show that the Gracepoint or Cora treatment records are material and non-cumulative.5 As indicated, evidence is considered

unfavorable decision or the factfindings upon which it was premised.” Hunter, 808 F. 3d at Further, the evidence is cumulative of information and treatment already considered and accounted for by the ALJ in the decision (Tr. 37-69). For example, regarding Plaintiff’s hip impairment and any attendant pain and weakness, the ALJ thoroughly considered the findings set forth in an August 2019 MRI of the hip in conjunction with treatment records relating to Plaintiff’s fibromyalgia and complaints of chronic pain along with evidence of Plaintiff’s obesity, including treatment received at TFHC during the relevant period (Tr. 52-57). Similarly, regarding Plaintiff’s mental impairments, the ALJ comprehensively discussed and considered Plaintiff’s treatment for all her mental impairments, including treatment received at Gracepoint during the relevant period (Tr. 57-63). After doing so, the ALJ determined that Plaintiff retained the ability to perform a reduced range of light work, accounting for her physical and mental impairments by including the limitations set forth above. Nothing in any of the additional treatment records offers probative information that is non-cumulative to that already considered by the ALJ in rendering the decision. For the foregoing reasons, therefore, remand under sentence six is unwarranted.

IV.

Accordingly, after consideration, it is hereby ORDERED:

1. The decision of the Commissioner is AFFIRMED.

2. The Clerk is directed to enter final judgment in favor of the Commissioner and close the case. DONE AND ORDERED in Tampa, Florida, on this 22nd day of March, 2022.

ANTHON E. PORCELLI

United Sfates Magistrate Judge cc: Counsel of Record