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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LISA M. MORRELL, )

)

Petitioner, )

)

v. ) CIVIL ACTION NO. 09-0483-N

)

MICHAEL J. ASTRUE, Commissioner )

of Social Security, )

)

Respondent. )

ORDER

This matter is before the Court on the petitioner’s appeal of an adverse decision by the

Commissioner on petitioner’s claim for SSI benefits. The parties have waived oral argument

(doc. 17) and the case has been transferred to the undersigned pursuant to the parties’ consent to

jurisdiction by the undersigned (doc. 18) and order of referral (doc. 20). The court thus enters

the following order on the merits of this matter upon the record presented, including particularly

the briefs of the parties (docs. 14 and 15) and the administrative record (doc. 13). Upon careful

review of the foregoing, the court finds that petitioner’s appeal is due to be DENIED and

judgment entered in favor of the Commissioner.

Background

Petitioner filed an application for Supplemental Security Income (“SSI”) benefits on

February 9, 2006. After initial denial of her claim, petitioner sought a hearing before an

Administrative Law Judge. The hearing was held on December 13, 2007. Petitioner was

represented by counsel.

The ALJ entered an unfavorable decision on January 24, 2008. The ALJ determined that

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petitioner suffered from the following severe impairments: morbid obesity, borderline

intellectual functioning, and depressive disorder. However, the ALJ determined that petitioner

had the Residual Functional Capacity (“RFC”) 

...to perform unskilled work at the medium level of exertion, with the following

restrictions: no climbing of ladders, ropes, or scaffolds; occasional climbing of

ramps and stairs; no frequent exposure to dangerous heights or machinery; and

occasional overhead reaching. Further, the undersigned finds that the claimant

experiences mild to moderate mental limitations, as she has mild restrictions on

her activities of daily living and moderate estimated difficulties in maintaining

social functioning. She has been shown to have moderate deficiencies of

concentration, persistence, or pace and one to two episodes of decompensation. 

Therefore, the claimant’s depression/anxiety has not been documented to persist

at greater than a mild to moderate level, and she is clearly capable of performing

the simple, repetitive, one and two step tasks required to carry out unskilled work. 

She is further restricted to only occasional interaction with the general public and

coworkers. 

Doc. 13, exhibit 1, at 21. The ALJ thus found that petitioner was capable of performing her past

relevant work as a janitor, and thus was not disabled. 

The record before the ALJ included medical records relating to petitioner’s complaints

of low back pain, including: (1) the record of a 2005 examination by Elizabeth Bataglia, M.D.,

who found no significant physical problem and assessed no functional limitations, and (2) the

record of a Consultive Examination by Stephen West, M.D. on May 16, 2006. Though

petitioner’s primary complaint was of a learning disability, Dr. West–a physician with a family

medicine practice–performed a physical examination and addressed her complaints of chronic

back pain. Dr. West found that claimant walked with a normal gait, could bend to the ankle level

when asked to touch her toes, could do a full squat, and that, other than the morbid obesity,

claimant’s physical exam was completely normal. He offered the opinion that there was “no

reason why she couldn’t do manual labor.” Id. at 138. Though his assessment included chronic

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 When the Appeals Council affirms the ALJ’s decision without a separate written

opinion, then the ALJ’s decision must be considered as the final decision of the Commissioner.

Doughty v. Apfel, 245 F. 3d 1272, 1278 (11th Cir. 2001). 

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back pain, he assessed no physical limitations.

After the decision, petitioner submitted additional medical evidence concerning her

lumbar spine and her knee to the Appeals Council. Specifically, claimant submitted medical

records to the Appeals Council from two providers, showing some evidence of orthopedic

problems in her lumbar spine and knee. An x-ray of the lumbar spine taken in January 2008

showed apparently mild osteoarthritis–no functional limitations were assessed. An x-ray of her

knees taken later in the same month showed probable post-traumatic changes to the right knee. 

Finally, an MRI of the lumbar spine taken in February 2009 showed mild degenerative disc and

facet changes spread fairly evenly throughout the spine. Again, no functional limitations were

assessed.

The Appeals Council received the additional records, but denied petitioner’s request for

review in light of new medical evidence.1

 Petitioner appeals, arguing that the Appeals Council

erred in finding that the additional records were insufficient to warrant such relief.

Analysis

The Eleventh Circuit has held that for a case to be remanded for consideration of new

evidence, a claimant must establish that (1) new, non-cumulative evidence exists; (2) that the

new evidence is material [ie, that a reasonable possibility exists that it would change the

administrative result]; and (3) good cause exists for the failure to incorporate the evidence into

the record. See Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218-19 (11th Cir. 2001); Falge v.

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 In Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1264-65 (11th Cir. 2007), the Court

rejected dicta in Falge purportedly limiting the reviewability of certain denials of review by the

Appeals Council.

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Apfel, 150 F.3d 1320, 1323-24 (11th Cir. 1998).2 The Commissioner argues that claimant

lacked good cause for her failure to previously submit the additional evidence, and that the

additional evidence did not require a reversal or invalidate the ALJ’s determination. This appeal

thus seeks a “sentence four remand,” which provides for remand when “the Appeals Council did

not adequately consider the additional evidence.” Bowen v. Heckler, 748 F.2d 629, 636 (11th

Cir.1984). 

Pursuant to Ingram v. Commissioner of Social Security, 496 F.3d 1253, 1262-66 (11th

Cir.2007), when new evidence is introduced for the first time to the Appeals Council, a district

court will review whether the decision to deny benefits is supported by substantial evidence in

the record as a whole, including the new evidence added to the record after the ALJ's decision.

In Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir.1987), the Court granted remand, finding

that the supplemental evidence presented to the Appeals Council was material where the new

medical reports offered an objective medical explanation for previously unexplained subjective

complaints of pain and inability to work and would unquestionably alter the ALJ’s adverse

credibility determination concerning complaints of pain. However, the court concluded that

there must be some indication that the new evidence is consistent with a condition which was in

existence between the date claimant claims to have become disabled and the date of the hearing. 

Id. at 459, n. 4. 

Unlike the decision in Hyde, the ALJ in this case had not made an adverse credibility

determination concerning any complaints of pain that would be likely to be altered by the new

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 For purposes of Social Security benefits decisions, an impairment or combination of

impairments is ‘severe’ if it significantly limits an individual’s ability to perform basic work

activities, and is not deemed severe if it is a slight abnormality that would have n more than a

minimal effect on the claimant’s ability to work. See 20 C.F.R. 416.921.

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medical records. Compare id. at 459-60 (new evidence showed objective basis for previously

unexplained pain, and would alter credibility analysis as well as reliance on the ‘grid’.). Further,

the additional medical information does not explain her subjective focus on the lumbar spine or

arguably show back pain serious enough to be deemed ‘severe’;3

–the reports show mild

osteoarthritis, spread evenly throughout the spine. There is no significant concentration in the

lumbar spine or elsewhere, and there is no indication that the mild condition shown in these

records is anything other than what many people experience as they age. No doctor has assessed

a functional limitation related to her back pain. With regard to her knee, there is no indication

that the condition–evidence of an old injury–caused her significant pain or was capable of

causing such pain; this is particularly so given the lack of a complaint of knee pain as a basis for

her disability claim.

Assuming, without deciding, that the additional medical records were timely submitted to

the Appeals Council, the court finds that the decision of the Appeals Council correctly

determined that such records would not have altered the adverse decision entered by the ALJ had

they been available at the time of the hearing. The court finds little likelihood of a different

result and thus finds that the additional evidence is not material. The court finds that the ALJ’s

conclusions were supported by substantial evidence. 

Accordingly, it is hereby ORDERED that the plaintiff’s appeal is DENIED, and that

judgment shall issue in favor of the Defendant Commissioner. 

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DONE this 10th day of March 2010.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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