Martina Sorter v. Social Security Administration, Commissioner

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 16, 2019
• Docket: 18-14148
• Status: Unpublished

Opinion

Case: 18-14148 Date Filed: 05/16/2019 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14148 Non-Argument Calendar ________________________

D.C. Docket No. 4:17-cv-01009-ACA

MARTINA SORTER,

Plaintiff-Appellant, versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(May 16, 2019)

Before WILLIAM PRYOR, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM: Case: 18-14148 Date Filed: 05/16/2019 Page: 2 of 6

Martina Sorter appeals the district court’s order affirming the Commissioner

of the Social Security Administration’s decision denying her applications for

supplemental security income and disability insurance benefits. Specifically,

Sorter asserts (1) that the Appeals Council erred by finding that the new

submission from her treating physician was not chronologically relevant, (2) that

the ALJ improperly evaluated her fibromyalgia under Social Security Ruling 12-

2p, and (3) that the ALJ failed to adequately consider her testimony about the side

effects of her pain medication.

In Social Security appeals, we review the Commissioner’s conclusions of

law and the district court’s judgment de novo. Parks ex rel. D.P. v. Comm’r, Soc.

Sec. Admin., 783 F.3d 847, 850 (11th Cir. 2015) (citations omitted). The

Commissioner’s factual findings, by contrast, are conclusive so long as they are

supported by “substantial evidence,” which we have defined as “such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)

(citations omitted).

After careful review, we affirm.

I

A claimant may generally present new evidence at each stage of the

administrative process—including to the Appeals Council—if the evidence is new,

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material, and relates to the period on or before the date of the ALJ’s decision. 20

C.F.R. §§ 404.970, 416.1470; Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d

1253, 1261 (11th Cir. 2007). And although the Appeals Council has discretion to

deny review of an ALJ’s decision, it must consider “new, material, and

chronologically relevant” evidence when deciding whether to grant a claimant’s

request for review. Washington v. Comm’r of Soc. Sec. Admin., 806 F.3d 1317,

1320 (11th Cir. 2015) (quoting Ingram, 496 F.3d at 1261). When the Appeals

Council erroneously refuses to consider such evidence, it commits legal error, and

remand is appropriate. Id. at 1321; see also Bowen v. Heckler, 748 F.2d 629, 636

(11th Cir. 1984).

On appeal, Sorter argues that the Appeals Council erred in concluding that a

letter from her treating physician dated more than six months after the ALJ’s

decision was not chronologically relevant. Although it’s true that medical opinions

based on treatment occurring after the date of the ALJ’s decision may still be

chronologically relevant, Washington, 806 F.3d at 1322, that is not the case here.

In Washington—which, significantly, explicitly limited its holding to “the specific

circumstances” of that case—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 1319–23. We concluded that the psychologist’s materials were

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chronologically relevant there 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 no evidence of the claimant’s mental decline since the ALJ’s decision.

Id. at 1319, 1322–23.

Here, unlike in Washington, the letter from Sorter’s treating physician did not

relate to the period on or before the date of the ALJ hearing decision. Accordingly,

it was not chronologically relevant and the Appeals Council did not err in refusing

to consider it. Additionally, although the Appeals Council’s explanation of its

refusal to consider the letter in denying review was brief, it is not required, when

denying a request for review, to provide a detailed rationale for why each piece of

new evidence fails to change the ALJ’s conclusion. Mitchell v. Comm’r, Soc. Sec.

Admin., 771 F.3d 780, 784 (11th Cir. 2014).

II

Importantly, Social Security Rulings are “binding on all components of the

Social Security Administration” (SSA). See 20 C.F.R. § 402.35(b)(1). Particularly

relevant here, Social Security Ruling 12-2p provides guidance on how the SSA

develops evidence that a person has a medically determinable impairment of

fibromyalgia and how it evaluates fibromyalgia in disability claims. See generally

SSR 12-2p, 2012WL 3104869 (July 25, 2012). It sets out a two-step process for

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evaluating symptoms, which involves (1) determining whether medical signs and

findings show that the person has a medically determinable impairment, and (2)

once a medically determinable impairment is established, evaluating the “intensity

and persistence of the person’s pain or any other symptoms” and determining “the

extent to which the symptoms limit the person’s capacity for work.” Id. Then, in

order to decide whether a person is disabled based on a medically determinable

impairment of fibromyalgia, the SSA considers the regular five-step sequential

evaluation process used for any adult claim for disability benefits. Id.

On appeal, Sorter contends that the ALJ improperly evaluated her

fibromyalgia under—and failed to explicitly cite—Social Security Ruling 12-2p.

Although Sorter is correct that the ALJ did not specifically cite Ruling 12-2p,

substantial evidence supports the conclusion that the ALJ properly evaluated her

fibromyalgia under the two-step process set out in the Ruling because he

considered the medical evidence, found that Sorter had a severe impairment, and

evaluated that impairment using the five-step process.

III

In evaluating a claimant’s residual functional capacity, the ALJ

appropriately considers all of the available evidence, including the effectiveness

and side effects of any medication. See 20 C.F.R. §§ 404.1529(c)(3)(iv),

416.929(c)(3)(iv). The ALJ has a “basic obligation to develop a full and fair

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record,” even if—as in this case—the claimant is represented by counsel. Cowart

v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).

As an initial matter, Sorter has abandoned on appeal the issue of whether the

ALJ adequately considered her testimony regarding the side effects of her pain

medication because her initial brief simply mentions the issue without providing

any supporting argument. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278–79

(11th Cir. 2009) (explaining that “simply stating that an issue exists, without

further argument or discussion, constitutes abandonment of that issue”). But in

any event, the ALJ adequately developed the record and considered the side effects

of Sorter’s pain medication in assessing her residual functional capacity because he

contemplated the medical evidence and Sorter’s testimony and assessed a residual

functional capacity that took the side effects of her medication into account.

AFFIRMED.