IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

NORTHERN DIVISION 

JOHN P. ROGERS, * 

 * 

Plaintiff, * 

 * 

vs. * CIVIL ACTION 09-00368-WS-B 

 * 

MICHAEL J. ASTRUE, * 

Commissioner of * 

Social Security, * 

 * 

Defendant. * 

REPORT AND RECOMMENDATION

Plaintiff John P. Rogers (APlaintiff@) brings this action 

seeking judicial review of a final decision of the Commissioner of 

Social Security denying his claim for supplemental security income 

under Title XVI of the Social Security Act, 42 U.S.C. '' 1381 et 

seq. This action was referred to the undersigned for report and 

recommendation pursuant to 28 U.S.C. ' 636(b)(1)(B). Oral arguments 

were waived. (Doc.20). Upon careful consideration of the 

administrative record and the memoranda of the parties, it is 

RECOMMENDED that the decision of the Commissioner be REVERSED and 

REMANDED. 

I. Procedural History

Plaintiff protectively filed an application for supplemental 

security income on March 17, 2006. (Tr. 42-43). Plaintiff alleges 

that he has been disabled since February 25, 2006, due to depression, 

hernia and a right knee that pops in and out of place. (Tr. 76, 

81). Plaintiff=s application was denied at the initial stage, and 

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2 

he filed a timely Request for Hearing before an Administrative Law 

Judge (AALJ@). (Tr. 42-43, 50). On September 10, 2008, 

Administrative Law Judge Charles A. Thigpen (AALJ Thigpen@) held an 

administrative hearing, which was attended by Plaintiff, his 

representative, and a vocational expert. (Tr. 25-41). On January 

9, 2009, ALJ Thigpen issued an unfavorable decision finding that 

Plaintiff is not disabled. (Tr. 9-24). Plaintiff=s request for 

review was denied by the Appeals Council (AAC@) on April 24, 2009. 

 (Tr. 1-3). The ALJ=s decision became the final decision of the 

Commissioner in accordance with 20 C.F.R. ' 404.981. Id. The 

parties agree that this case is now ripe for judicial review and 

is properly before this Court pursuant to 42 U.S.C. '' 405(g) and 

1383(c)(3). 

II. Issue on Appeal

A. Whether the ALJ erred in relying on the RFC assessment 

prepared by the non-examining physician. 

 B. Whether the AC erred in failing to consider new 

evidence in denying Plaintiff=s request for review of the 

ALJ decision. 

III. Factual Background

Plaintiff was born on November 26, 1961 and has an eleventh-grade 

education1

. (Tr. 28, 68, 76, 86). Plaintiff has past relevant work 

(APRW@) as a maintenance worker for an apartment complex. (Tr. 

 1

While Plaintiff reported in the Disability Report that he 

completed eleventh grade and was not in special education classes, 

he testified that he completed ninth grade and was in special 

education classes. (Tr. 28, 86). 

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3 

81-82, 94). Plaintiff testified that he can read and write a little, 

but is not good with simple arithmetic. (Tr. 28-29). 

Plaintiff testified that he is unable to work because of problems 

with his knee, a hernia and depression. (Tr. 29-30). According 

to Plaintiff, he has a free fragment in his knee such that his bones 

rub, and he also suffers from arthritis. (Tr. 30). Plaintiff 

testified that Dr. Barrineau recommended surgery on his right knee, 

and that three other doctors have also recommended surgery for removal 

of the hernia; however, he does not have insurance; thus, he cannot 

afford to have either surgery. (Tr. 30-31). 

Plaintiff testified that the pain in his knee is an “eight” 

on a scale of “one” to “ten,” that he can walk about 30 minutes or 

about six feet, but he has to use a cane. (Tr. 31-32). Plaintiff 

also testified that he can sit for about an hour, but that his leg 

swells if he does not keep it propped up while sitting. (Tr. 32). 

According to Plaintiff, he receives shots and is prescribed various 

medications for his knee pain. (Tr. 34). Plaintiff also testified 

about various mental problems. (Tr. 33-34). 

IV. Analysis

A. Standard Of Review

In reviewing claims brought under the Act, this Court=s role 

is a limited one. The Court=s review is limited to determining 1) 

whether the decision of the Secretary is supported by substantial 

evidence and 2) whether the correct legal standards were applied. 

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4 

 Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).2 A court 

 may not decide the facts anew, reweigh the evidence, or substitute 

its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 

1065, 1067 (11th Cir. 1986). The Commissioner=s findings of fact must 

be affirmed if they are based upon substantial evidence. Brown v. 

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 

703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence 

is defined as Amore than a scintilla but less than a preponderance@

and consists of Asuch relevant evidence as a reasonable person would 

accept as adequate to support a conclusion[]@). In determining 

whether substantial evidence exists, a court must view the record 

as a whole, taking into account evidence favorable, as well as 

unfavorable, to the Commissioner=s decision. Chester v. Bowen, 792 

F. 2d 129, 131 (11th Cir. 1986); Short v. Apfel, 1999 U.S. DIST. LEXIS 

10163 (S.D. Ala. 1999). 

B. Discussion

An individual who applies for Social Security disability 

benefits must prove his disability. 20 C.F.R. '' 404.1512, 416.912. 

 Disability is defined as the Ainability to do 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 

 2

This Court=s review of the Commissioner=s application of legal 

principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 

1987).

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 4 of 25
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or can be expected to last for a continuous period of not less than 

twelve months.@ 42 U.S.C. '' 423(d)(1)(A), 404.1505(a), 416.905(a). 

 The Social Security regulations provide a five-step sequential 

evaluation process for determining if a claimant has proven her 

disability. 20 C.F.R. '' 404.1520, 416.920.3 

In the case sub judice, the ALJ determined that Plaintiff had 

not engaged in substantial gainful activity since March 17, 2006, 

the application date. (Tr. 14). The ALJ also found that Plaintiff 

has the following severe impairments: depression, hernia, and right 

knee problem. The ALJ concluded that Plaintiff=s impairments, though 

 3

The claimant must first prove that he or she has not engaged 

in substantial gainful activity. The second step requires the 

claimant to prove that he or she has a severe impairment or combination 

of impairments. If, at the third step, the claimant proves that the 

impairment or combination of impairments meets or equals a listed 

impairment, then the claimant is automatically found disabled 

regardless of age, education, or work experience. If the claimant 

cannot prevail at the third step, he or she must proceed to the fourth 

step where the claimant must prove an inability to perform their past 

relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). 

 In evaluating whether the claimant has met this burden, the examiner 

must consider the following four factors: (1) objective medical facts 

and clinical findings; (2) diagnoses of examining physicians; (3) 

evidence of pain; (4) the claimant=s age, education and work history. 

 Id. at 1005. Once a claimant meets this burden, it becomes the 

Commissioner=s burden to prove at the fifth step that the claimant 

is capable of engaging in another kind of substantial gainful 

employment which exists in significant numbers in the national 

economy, given the claimant=s residual functional capacity, age, 

education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th

Cir. 1985). If the Commissioner can demonstrate that there are such 

jobs the claimant can perform, the claimant must prove inability to 

perform those jobs in order to be found disabled. Jones v. Apfel, 

190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 

F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 

1562, 1564 (11th Cir. 1985)). 

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severe, do not meet or medically equal the criteria for any of the 

impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations 

No. 4. Id. The ALJ also found that Plaintiff=s allegations regarding 

the intensity, persistence and limiting effects of his alleged 

symptoms were not entirely credible. (Tr. 21). The ALJ further 

found that Plaintiff retains the residual functional capacity (ARFC@) 

to perform medium work, with moderate limitations of functioning in 

daily activities, social functioning, concentration, persistence, 

and pace. (Tr. 16). The ALJ, in reliance on the medical evidence 

and the testimony of the VE, concluded that Plaintiff is able to return 

to his past relevant work as a maintenance worker and material handler. 

 (Tr. 23). 

1. Medical Evidence 

The relevant medical evidence4

 includes the results of a right 

knee x-ray dated January 30, 2006. That x-ray showed no evidence 

of recent fracture or other significant bony abnormality. (Tr. 170). 

 The record also includes treatment notes from Alex K. Curtis, M.D., 

from March 2006 to June 2007. In treatment notes on March 22, 2006, 

Dr. Curtis stated that Plaintiff complained of chronic knee pain for 

several months, with a popping/grinding sensation when he walks. 

 4

While the undersigned has examined all of the medical evidence 

contained in the record, including that which was generated before 

Plaintiff=s application date of March 17, 2006, only that evidence 

which is relevant to the issues before the Court is included in the 

summary.

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On physical exam, Dr. Curtis observed that Plaintiff’s anterior and 

posterior cruciate ligaments were intact, his lateral and medial 

collateral ligaments were intact without laxity, and there was no 

significant deformity or significant patellar shift noted. Dr. 

Curtis further observed that Plaintiff’s knee x-ray showed no fracture 

or dislocation, but that the joint space appeared somewhat narrowed. 

He diagnosed Plaintiff with chronic right knee pain, referred him 

for an MRI, and prescribed him Indocin5

. (Tr. 238). 

Plaintiff underwent a right knee MRI on March 27, 2006. The 

MRI resulted in a finding of a large focus of osteochondritis 

dissecans6 involving the medial femoral condyle7, and a free fragment 

in the lateral patellofemoral compartment8. The MRI also showed a 

degenerative chondromalacia9

 involving the medial tibial plateau and 

a popliteal cyst. The MRI was negative for meniscus or Lehman tear. 

 5

Indocin is a nonsteroidal anti-inflammatory drugs used to treat 

moderate to severe rheumatoid arthritis, osteoarthritis, and 

ankylosing spondylitis. See, www.drugs.com. (Last visited March 

26, 2010.) 

6

An osteochondritis dissecan is a partial or complete detachment 

of a fragment of bone and cartilage at a joint. See, www.nlm.nih.gov.

(Last visited March 26, 2010.) 

7

A condyle is the inner side of the lower extremity of the femur. 

 See, www.nlm.nih.gov. (Last visited March 26, 2010.) 

8

Patellofemoral compartment is one of three spaces about the 

knee between the patella and femur. See, www.medcyclopideia.com.

(Last visited March 26, 2010.) 

9

Chondromalacia is abnormal softness of cartilage. See, 

www.nlm.nih.gov. (Last visited March 26, 2010.) 

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 7 of 25
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 (Tr. 174). 

Plaintiff had a follow-up visit with Dr. Curtis on April 4, 2006. 

 Dr. Curtis noted that Plaintiff=s MRI showed a large focus of 

osteochondritis dissecans (AOCD@) involving the medial femoral 

condyle, a free fragment in the lateral patellofemoral compartment, 

degenerative condromalacia and a popliteal baker=s cyst 10 . He 

prescribed Indocin11, and referred Plaintiff to Bony Barrineau, M.D. 

 (Tr. 237). 

Plaintiff was evaluated for right knee pain by Dr. Barrineau 

at Demopolis Clinic on April 14, 2006. Dr. Barrineau noted that 

Plaintiff’s MRI showed a big OCD lesion/medial femoral condyle with 

a large loose body, and that his examination of Plaintiff was 

consistent with that. Dr. Barrineau observed that Plaintiff has a 

loose body catching in his joint, and that he has a lot of grinding 

and crepitance. Dr. Barrineau recommended an outpatient 

orthroscopic procedure. He further stated that Plaintiff had been 

recently incarcerated, and that Plaintiff needed to get his knee fixed 

so “he can get back in the work force and be a productive individual.” 

Dr. Barrineau advised Plaintiff to go to vocational rehabilitation 

 10Popliteal Baker=s cyst is an accumulation of joint fluid 

(synovial fluid) that forms behind the knee. See, www.nlm.nih.gov.

 (Last visited March 26, 2010.) 

11Indocin is a nonsteroidal anti-inflammatory drug (ANSAID@) used 

to treat pain or inflammation caused by many conditions, including 

arthritis. See, www.drugs.com. (Last visited December 30, 2009). 

 

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services for assistance with the surgery, and indicated that if they 

could not help Plaintiff, then Plaintiff should go to Northport 

Hospital where they would set up payments for the services at a reduced 

rate. (Tr. 176). 

Plaintiff was evaluated by Saima Kanwal, M.D., at Selma Family 

Medicine Center on June 16, 2006, at the request of the Agency.12 

On physical exam, Dr. Kanwal observed right revision of inguinal 

hernia, more prominent on coughing but reducible; multiple lineal 

healed lacerations in both arms; inability to heel and toe walk because 

of his right knee; straight right knee with limp; positive crepitus 

in right knee joint; back tenderness secondary to popliteal cyst; 

tenderness in medial epicondyle; tenderness along the right lateral 

epicondyle; positive medial collateral ligament test; range of motion 

on flexion of right knee within normal limits; limited range of motion 

on extension of right knee to 170 degrees; limited squatting due to 

right knee pain; and limited bending and picking up small objects 

due to straight right knee. (Tr. 199). 

Dr. Kanwal=s assessments were of right knee pain, popping, 

catching, and locking; right inguinal hernia; and depression with 

borderline personality disorder and suicidal ideation. He noted 

Plaintiff=s MRI reflects a large focus of OCDs involving the medial 

femoral condyle, and degenerative chondromalacia involving the medial 

 

 12 Plaintiff reported knee pain commencing December 2005 when, 

while incarcerated, he was assigned the top bunk from which he had 

to jump, on a daily basis, with no support. (Tr. 198) 

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tibial plateau. Dr. Kanwal recommended that Plaintiff have the 

outpatient arthroscopic procedures first as Plaintiff had problems 

with lots of bending and walking. Dr. Kanwal also recommended surgical 

repair of his right inguinal hernia, and psychiatric evaluation and 

anti-depression medication or psychiatric in-patient treatment. 

(Tr. 199). 

Richard D. Carter, M.D., reviewed medical records and completed 

a Physical Residual Functional Capacity Assessment on July 25, 2006 

at the request of the Agency. Dr. Carter opined that, based on the 

March 27, 2006 MRI of Plaintiffs right knee, the April 16, 2006 medical 

opinion that Plaintiff needed arthroscopic surgery, and the July 16, 

2006 consultative evaluation, Plaintiff is able to lift and/or carry 

up to 50 pounds occasionally and 25 pounds frequently, can 

stand/walk/sit about six hours in an eight-hour workday, and is 

unlimited in his ability to push and pull with his hands and feet. 

He further opined that Plaintiff can never climb ladders, ropes or 

scaffolds, can occasionally climb ramps and stairs, and should avoid 

all exposure to hazards such as machinery and heights. Dr. Carter 

stated that Plaintiff can frequently balance, stoop, kneel, crouch 

and crawl, has no manipulative, visual or communicative limitations, 

and is unlimited in all environmental climates other than activities 

around hazards. (Tr. 200-207). 

 Plaintiff had a follow-up visit with Dr. Curtis on August 14, 

 

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2006. Plaintiff reported a large knot on his groin as well as 

continued right knee pain. Dr. Curtis noted that Plaintiff was seen 

by orthopedics who recommended knee surgery; however, Plaintiff 

reported that he had no insurance, and as a result, was unable to 

afford surgery. Upon examination, Dr. Curtis observed a right 

inguinal hernia which could be reduced and swelling in his right knee. 

Dr. Curtis noted that Plaintiff had no instability in his knee, but 

he had crepitus on palpation and on movement. He injected Plaintiff’s 

right knee with Marcaine13 and Depo-Medrol14, and diagnosed Plaintiff 

with right inguinal hernia and internal derangement in the right knee. 

(Tr. 236). 

 13Marcaine is an anesthetic, used for numbing during dental or 

surgical procedures, labor, or delivery. See, www.drugs.com. 

(Last visited January 4, 2010). 

14Depo-medrol is an anti-inflammatory glucocorticoid for 

intramuscular, intra-articular, soft tissue or intralesional 

injection, used to treat severe inflammation due to certain 

conditions, including rheumatoid arthritis. See, www.drugs.com. 

(Last visited January 4, 2010). 

Plaintiff was treated at the Fitz-Gerald Perret Clinic on 

December 6, 2006. Plaintiff reported that his nerves were Ashot,@

and that his stomach and right knee hurt. On physical exam, 

Plaintiff’s extremities were symmetrical with a good range of motion, 

and no pedal edema was observed. Plaintiff had positive pulses 

bilaterally, positive DTRs bilaterally and his gait was stable. He 

was diagnosed with depression, anxiety, history of suicide attempt, 

self-abusive disorder and esophageal reflux. (Tr. 234-235). 

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On March 26, 2007, Plaintiff had a follow-up visit with Dr. Curtis 

at the Fitz-Gerald Perret Clinic. Plaintiff reported panic attacks 

and that he had been out of his medicine for over a month. On 

examination, Plaintiff had a regular heart rate and rhythm. 

Plaintiff was prescribed Klonopin and was encouraged to make an 

appointment with mental health, and to be responsible with his 

medication. (Tr. 233). 

Plaintiff was treated at the emergency room at Bryan W. Whitfield 

Memorial Hospital on April 2, 2007. He reported taking an overdose 

of Klonopin. He also complained of anxiety, hallucinations, 

delusional thinking and suicidal ideation. (Tr. 275, 388). His 

physical exam revealed normal extremities with no pedal edema. An 

ECG reflected probable left ventricular hypertrophy. (Tr. 282, 391). 

 Plaintiff was diagnosed with intentional drug ingestation. (Tr. 281, 

390). 

Plaintiff was seen by Dr. Curtis on June 12, 2007. Plaintiff 

reported pain in his right knee and panic disorder/attacks. On 

physical exam, Plaintiff’s right knee was stable, but tender to 

palpation. Plaintiff was diagnosed with depression/panic disorder 

and knee pain. Plaintiff was given a refill on Klonopin and Zoloft, 

and continued on his current medications for his knee. Additionally, 

Plaintiff was encouraged to make an appointment with orthopedics 

“ASAP”. (Tr. 231) 

Plaintiff was treated at the emergency room at Bryan W. Whitfield 

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 12 of 25
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Memorial Hospital on June 13, 2007. He reported anxiety attacks, 

a knot by his Aprivate area,@ and right knee pain. On physical exam, 

Plaintiff’s extremities were listed as normal, and it was noted that 

no pedal edma was noted. Plaintiff was diagnosed with arthritis and 

hernia, and was encouraged to follow-up with Dr. Allegrea for hernia 

and Dr. Fitz for knee pain. (Tr. 261-272, 377-384). 

Plaintiff returned to the emergency room at Bryan W. Whitfield 

Memorial Hospital on August 9, 2007. He reported depression and 

suicidal thoughts, with self-inflicted wounds in a suicide attempt. 

His physical exam was normal except for bilateral cuts on his upper 

extremities and ataxia. Plaintiff’s clinical impressions were 

listed as depression and self-inflected wound. A chest x-ray on this 

day showed no active disease, and a ECG showed left axis deviation 

and left ventricular hypertrophy. (Tr. 239-251). 

Plaintiff presented to Jackson Hospital Emergency Room on August 

21, 2007, for staple removal. His current medication was listed as 

Seroquel15 . His history of mental disorder and knee problem was 

noted. On physical exam, Plaintiff had a full range of motion in 

all extremities. It was noted that Plaintiff’s wound areas were 

healing well. He was discharged in stable condition. (Tr. 373). 

 15Seroquel is an antipsychotic medication, used to treat 

schizophrenia or bipolar disorder. See, www.drugs.com. (Last 

visited January 4, 2010). 

Plaintiff returned to Jackson Hospital Emergency Room on October 

22, 2007. He reported problems with his knee and finger. Plaintiff 

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complained of moderate knee pain, occasional spontaneous Alocking 

up@ and inability to completely extend the joint. He further 

complained about tingling in his middle fingers. Plaintiff’s 

physical exam revealed no extremity tenderness; full range of motion 

in all extremities; and no extremity edema. It further showed that 

Plaintiff had moderate tenderness to palpation over the right knee, 

but showed no evidence of soft tissue swelling over the right knee; 

no palpable effusion over the right knee; no sign of contusion; no 

evidence of hematoma over the knee; and no acute instability or 

subluxation. The ligaments surrounding the right knee were intact 

and the rest of the knee exam was okay. (Tr. 364). Plaintiff was 

diagnosed with knee pain and neuropathy, prescribed ibuprofen and 

discharged in stable condition. (Tr. 365). 

Plaintiff was treated again at Jackson Hospital emergency room 

on February 3, 2008. He reported moderate knee pain, that he has 

had pain and swelling in his knee since 2005, and that he cannot afford 

knee surgery. He was ambulating with a cane, and was described as 

fully ambulatory and without loss of mobility. Plaintiff=s physical 

exam did not reveal any extremity tenderness. Plaintiff was diagnosed 

with knee pain, prescribed Naprosyn16 and Lortab17, and discharged 

 16Naprosyn is an NSAID, used to treat rheumatoid arthritis, 

osteoarthritis, ankylosing spondylitis, and juvenile arthritis. 

See, www.drugs.com. (Last visited January 4, 2010). 

17Lortab is a narcotic pain relievers, used to relieve moderate 

to severe pain. See, www.drugs.com. (Last visited January 4, 2010). 

 

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in stable condition. (Tr. 413-414). 

Plaintiff was treated at UAB Medical Center on August 26, 2008. 

 He reported that he had not been compliant with his medications. 

 He also reported knee pain, more on the right. In addition, he 

reported symptoms of anxiety and depression. (Tr. 442). Plaintiff 

was diagnosed with depression and knee pain, and was given analgesics. 

 (Tr. 443). 

Following the ALJ’s decision, Plaintiff presented additional 

medical documentation to the Appeals Council, namely a report of 

an MRI of Plaintiff’s right knee dated February 16, 2009, and a Medical 

Source Opinion and Clinical Assessment of Pain dated March 6, 2009 

by Dr. Curtis. The MRI reflects very advanced degenerative arthritis 

of the medial knee with bone-on-bone apposition, very degenerative 

extruded meniscus, and moderate-sized joint effusion with a tubular 

Baker cyst that is intact and contains a calcified loose body. It 

further showed a very small anterior horn lateral meniscus with 

degenerative thinning of the entire meniscus, well-preserved 

articular cartilage, and intact ACL, PCL, collateral ligaments, 

quadriceps and patellar tendon. (Doc. 13-2 at 3-5). 

 In the Medical Source Statement, Dr. Curtis opined that 

Plaintiff could sit eight hours and stand or walk less than one hour 

in an eight-hour workday. He further opined that Plaintiff could 

lift/carry up to 20 pounds occasionally and 10 pounds frequently, 

that he did not require an assistive devise to ambulate even 

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minimally, and that he had no need to avoid dust, fumes, or gases, 

or extremes of temperature, humidity and other environmental 

pollutants. Dr. Curtis opined that Plaintiff could rarely push and 

pull with his leg, bend, stoop or reach. He stated that Plaintiff 

could frequently push and pull with his arms, do fine manipulation, 

and operate motor vehicles, and could occasionally do gross 

manipulation and work with or around hazardous machinery. Dr. Curtis 

estimated that Plaintiff=s impairments or treatment would cause him 

to be absent from work about twice a month, that these limitations 

would normally be expected from the type and severity of his 

diagnoses, and that his diagnoses are confirmed by objective medical 

findings, referring to an MRI. (Doc. 13-2 at 1). 

Dr. Curtis also completed a Clinical Assessment of Pain on March 

6, 2009, in which he states that Plaintiff reported that pain was 

present to such an extent as to be distracting to adequate performance 

of daily activities, and that his pain is greatly increased to such 

a degree as to cause distraction from tasks or total abandonment 

of task. He opined that Plaintiff could expect significant side 

effects from his medication that may limit his effectiveness of work 

duties or performance of everyday tasks. (Doc. 13-2 at 2). 

2. Plaintiff’s arguments 

In this case, Plaintiff attacks both the ALJ’s reliance on the 

assessment of a non-examining physician as well as the AC’s decision 

to deny review. Upon review, the undersigned finds that the ALJ’s 

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reliance on a non-examining medical consultant’s assessment to 

determine Plaintiff’s RFC was erroneous where the non-examining 

medical consultant did not include limitations identified by an 

examining physician, and the ALJ’s decision does not address why 

the non-examining physician’s opinion was credited over that of the 

examining physician. Under the Social Security regulations, state 

agency medical consultants are deemed highly qualified physicians 

“who are experts in the evaluation of the medical issues in disability 

claims under the Act.” 20 C.F.R. § 404.1257(f). However, the 

opinions of non-examining sources, “when contrary to those of 

examining[sources] are entitled to little weight in a disability 

case, and standing alone do not constitute substantial evidence.” 

Sharfarz v. Bowen, 825 F. 2d 278, 280 (llth Cir. 1987); See also

Swindle v. Sullivan, 914 F. 2d 222, 226 n.3(llth Cir. 1990). An 

ALJ may rely on the opinions of non-examining sources when they do 

not conflict with those of examining sources. Edwards v. Sullivan, 

937 F. 2d 580, 584-85 (llth Cir. 1991). 

Dr. Kanwal examined Plaintiff on June 16, 2006 and found that 

Plaintiff was unable to heel and toe walk because of his right knee, 

and that Plaintiff could engage in limited squatting and bending 

due to his straight right knee. Dr. Kanwal recommended that 

Plaintiff have outpatient orthoscopic procedures, a recommendation 

that was also made by at least two other examining doctors. Dr. 

Carter, the medical consultant, reviewed the medical records in July 

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 17 of 25
18 

2006, and opined that that Plaintiff could frequently stoop, kneel, 

crouch and crawl, and that he could engage in medium work. Dr. 

Carter’s opinion regarding Plaintiff’s ability to stoop, kneel, 

crouch and crawl is clearly at odds with Dr. Kanwal’s assessment 

that Plaintiff was limited in his ability to engage in squatting 

and bending due to his right knee; yet, the ALJ did not discuss the 

limitations noted by Dr. Kanwal, let alone provide any explanation 

for not including the limitations noted by Dr. Kanwal in Plaintiff’s 

RFC, and in crediting Dr. Carter’s opinion over that of Dr. Kanwal. 

It is also noteworthy that while Dr. Barrineau did not provide any 

physical limitations following his examination of Plaintiff in April 

2006, he too observed that Plaintiff needed to have an outpatient 

orthoscopic procedure so that he could return to the workforce. 

Accordingly, the undersigned is unable to find that the ALJ’s decision 

is supported by substantial evidence. 

Plaintiff also contends that the new evidence presented to the 

AC should be made a part of the Court record, and that the AC erred 

in failing to consider this new evidence, which post-dated the ALJ’s 

January 9, 2009 opinion, because there is a reasonable possibility 

that this evidence would have changed the outcome of the 

Commissioner=s determination. According to Plaintiff, the 

conditions addressed in the new evidence were present during the 

time period under consideration by the ALJ and is material as it 

was prepared by his treating physician. 

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 18 of 25
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Defendant argues that the additional evidence is not probative 

because it is dated after the date of the ALJ’s opinion and is 

therefore not material. He further argues that Plaintiff last saw 

Dr. Curtis eighteen months before the ALJ opinion was rendered, and 

that there is no good cause for Plaintiff’s failure to produce a 

Medical Source Opinion from Dr. Curtis at some time prior to the 

ALJ’s opinion. 

“Generally, a claimant is allowed to present new evidence at 

each stage of the administrative process.” Poellnitz v. Astrue, 

349 Fed. Appx. 500; 2009 U.S. App. LEXIS 22996 (llth Cir. 

2009)(unpublished)(citing 20 C.F.R. § 404.900 (b); Ingram v. Comm’r 

of Soc. Sec. Admin., 496 F. 3d 1253, 1260-61(llth Cir. 2007). “[N]ew 

evidence first submitted to the [AC] is part of the administrative 

record that goes to the district court for review when the [AC] accepts 

the case for review as well as when the Council denies review.” 

Ingram, 496 F. 3d at 1264-65. The AC must consider new, material, 

and chronologically relevant evidence and must remand the case if 

the ALJ’s “action, findings, or conclusion is contrary to the weight 

of the evidence currently of record.” 20 C.F.R. § 404.970(b); Ingram, 

496 F. 3d at 1261; see also Keeton v. Dep’t of Health & Human Services, 

21 F. 3d 1064, 1066 (llth Cir. 1994)(the AC is required to consider 

the entire record, “including the new and material evidence submitted 

if it relates to the period on or before the date of the administrative 

law hearing.”) The AC is also required to show in its written denial 

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 19 of 25
20 

of review that it has adequately evaluated the new evidence. Robinson 

v. Astrue, 2010 U.S. App. LEXIS 3450 (llth Cir. 2010)(unpublished). 

The AC may deny review, even in light of the new evidence, if it 

finds no error in the opinion of the ALJ. Ingram, 496 F. 3d at 1262. 

 Evidence is deemed ‘new” when it is non-cumulative, and is deemed 

“material” when it is “relevant and probative so that there is a 

reasonable possibility that it would change the administrative 

result.” Milano v. Bowen, 809 F. 2d 763, 766 (llth Cir. 1987). 

With respect to the evidence submitted to the AC in the case 

at hand, a threshold inquiry is whether the new evidence is properly 

before this Court because it was not made a part of the administrative 

record. In a Notice of Appeals Council Action dated April 24, 2009, 

the AC stated as follows: 

In looking at your case, we considered the reasons you disagree 

with the decision. We found that this information does not 

provide a basis for changing the Administrative Law Judge’s 

decision. We also looked at the MRI report dated February 16, 

2009 and the assessment by Dr. Curtis dated March 6, 2009. 

The ALJ decided your case through January 7, 2009. This new 

information is about a later time. Therefore, it does not 

affect the decision about whether you were disabled beginning 

on or before January 7, 2009. 

 

If you want us to consider whether you were disabled after 

January 7, 2009, you need to apply again. We are returning 

the evidence to you to use in your new claim. 

(Tr. 1, 2). 

 Attached to Plaintiff’s brief which was filed with this Court 

is a copy of the MRI report dated February 16, 2009 and the assessment 

by Dr. Curtis dated March 6, 2009. Plaintiff argues that these 

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21 

documents should have been made a part of the administrative record, 

and that they are properly before this Court. The Commissioner 

acknowledges that because the AC considered the new evidence, and 

Plaintiff is appealing the AC’s denial of review, the Court must 

consider the new evidence submitted to the AC. (Doc. 15 at 6). 

The question thus boils down to whether the records constituted new, 

material, and chronologically relevant evidence such that there was 

a reasonable possibility that they would change the administrative 

result. For evidence to be new and noncumulative,it must relate to 

the time period on or before the date of the ALJ’s decision. See

20 C.F.R. 404.970(b). Evidence of deterioration of a previously 

considered condition may subsequently entitle a claimant to benefits 

in a new application, but it is not probative of whether a person 

was disbled during the specific period under review. See Wilson

v. Apfel, 179 F. 3d 1276, 1279 (llth Cir. 1999)(per curiam)(holding 

that a doctor’s opinion one year after the ALJ’s decision was not 

probative to any issue on appeal); See also Smith v. Social Security

Administration, 272 Fed. Appx. 789, 2008 U.S. App LEXIS 7460 (llth 

Cir. 2008)(unpublished)(while the results of consultative 

examinations which were performed some four to six months after the 

ALJ’s decision might strengthen the claimant’s contention that the 

new evidence showed she was disabled, the reports were not 

chronologically relevant because they came after the ALJ’s decision) 

In this case, the evidence submitted to the AC post-dated the 

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22 

ALJ’s decision. The February 2009 MRI was essentially cumulative 

in that it reflected a degenerative knee condition, a free fragment 

in the lateral patellofemoral compartment, and a popliteral baker’s 

cyst, all items which were also reflected in the 2006 MRI. Dr. 

Curtis’ March 2009 assessment, which was prepared a mere two months 

after the ALJ’s decision, presents a much closer question. However, 

as the Commissioner correctly points out, the assessment was prepared 

after the ALJ’s decision, and while Dr. Curtis had previously treated 

Plaintiff for chronic right knee pain, his 2009 assessment was 

prepared nearly two years after Dr. Curtis had last seen Plaintiff 

in 2007. Thus, while it is clear that Dr. Curtis was familiar with 

Plaintiff’s right knee condition and with both Plaintiff’s 2006 MRI 

and Plaintiff’s 2009 MRI, and as a result, would likely be in a unique 

position to render an opinion about whether Plaintiff’s limitations 

were present during the relevant time period, Dr. Curtis’ 2009 

assessment does not reference the relevant time period nor does it 

contain any opinion with respect to whether Plaintiff’s limitations 

existed during the period prior to the ALJ’s decision. Accordingly, 

the AC correctly found that it is not chronically relevant. 

V. Conclusion

For the reasons set forth, and upon careful consideration of 

the administrative record and memoranda of the parties, it is 

recommended that the decision of the Commissioner of Social Security, 

denying Plaintiff=s claim for disability insurance benefits, is due 

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23 

to be REVERSED and REMANDED.

 DONE this 25th day of July, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 23 of 25
MAGISTRATE JUDGE=S EXPLANATION OF PROCEDURAL RIGHTS 

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of service 

of this document, file specific written objections with the clerk 

of court. Failure to do so will bar a de novo determination by the 

district judge of anything in the recommendation and will bar an 

attack, on appeal, of the factual findings of the magistrate judge. 

 See 28 U.S.C. ' 636(b)(1)( c); Lewis v. Smith, 855 F.2d 736, 738 

(11th Cir. 1988). The procedure for challenging the findings and 

recommendations of the magistrate judge is set out in more detail 

in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that: 

A party may object to a recommendation entered by a 

magistrate judge in a dispositive matter, that is, a matter 

excepted by 28 U.S.C. ' 636(b)(1)(A), by filing a AStatement 

of Objection to Magistrate Judge=s Recommendation@ within 

ten 18 days after being served with a copy of the 

recommendation, unless a different time is established 

by order. The statement of objection shall specify those 

portions of the recommendation to which objection is made 

and the basis for the objection. The objecting party shall 

submit to the district judge, at the time of filing the 

objection, a brief setting forth the party=s arguments that 

the magistrate judge=s recommendation should be reviewed 

de novo and a different disposition made. It is 

insufficient to submit only a copy of the original brief 

submitted to the magistrate judge, although a copy of the 

original brief may be submitted or referred to and 

incorporated into the brief in support of the objection. 

 Failure to submit a brief in support of the objection 

may be deemed an abandonment of the objection. 

A magistrate judge=s recommendation cannot be appealed to a Court 

of Appeals; only the district judge=s order or judgment can be 

appealed. 

 18The Court’s Local Rules are being amended to reflect the new 

computations of time as set out in the amendments to the Federal 

Rules of Practice and Procedure, effective December 1, 2009. 

2. Opposing party=s response to the objection. Any opposing party 

may submit a brief opposing the objection within fourteen (14) days 

of served with being a copy of the statement of objection. Fed.R. 

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 24 of 25
25 

Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. ' 1915 and Fed.R.Civ.P. 72(b), the magistrate 

judge finds that the tapes and original records in this action are 

adequate for purposes of review. Any party planning to object to 

this recommendation, but unable to pay the fee for a transcript, 

is advised that a judicial determination that transcription is 

necessary is required before the United States will pay the cost 

of the transcript. 

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:09-cv-00368-WS-B Document 21 Filed 07/26/10 Page 25 of 25