THOMAS

v.

COMMISSIONER OF SOCIAL SECURITY

Order Charlie James Thomas, Jr., brings this action under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security denying his application for disability benefits. Under review is a decision by an Administrative Law Judge (“ALJ”) dated September 27, 2018. Tr. 8–25. Summaries of the law and the administrative record are in the ALJ’s decision, Tr. 11–20, and the parties’ briefs, Doc. 19, Doc. 21, and not fully repeated here.

I. Background

Thomas was born in 1971. Tr.

88. In 1994, as a result of a car accident, he had upper-cervical-vertebrae surgery (a posterior decompression and fusion). Tr.

366. He could work but continued to have chronic “waxing and waning pain” and receive other treatment like medication and injections. Tr.

366. His last job was for a railroad company as a yard-truck driver and “tie-down man,” which required him to walk along the tracks to check hitches. Tr. 56–57.

On April 23, 2015, Thomas was in a second car accident, this time at work. Tr.

336. He received worker’s compensation benefits until March 2016 and, shortly after those ended, applied for disability benefits, alleging he could not work since the date of the second accident. Tr. 88–89, 187. Reports document his complaints that the second accident aggravated his earlier neck and back injuries. Tr.

366. Before and after the second accident, Thomas saw Jawad Hussain, M.D., and other providers at the Institute of Pain Management and Integrated Pain Services for pain management and Kenneth Mayer, M.D., at Baptist Primary Care for primary care, including for diabetes treatment. After the second accident, he saw (1) Robert Hurford Jr., M.D., with Heekin Orthopedic Specialists or Southeast Orthopedic Specialists four times between June and November 2015, and (2) Frank Collier, Jr., M.D, with Collier Spine Institute & Rehabilitation Medicine seven times between April and July 2016 for regular appointments and injections. An April 2016 report from Dr. Collier states, “[Dr. Hurford] felt that [Thomas] might be a surgical candidate and had recommended surgery. His work comp provider had obtained a second opinion by Dr. Monteiro who checked the before and after MRI scans and felt that his condition that needed surgery was present prior to his injury on the job and was not related to his job accident.” Tr.

366. A July 2016 report from Dr. Collier states, “[Thomas] has also been evaluated per Dr. Hurford and Dr. Monteiro who possibly recommended additional surgical intervention from a cervical standpoint but he is not interested in a surgical evaluation or intervention at this point. He may be interested in a third epidural injection on the left but not today. He would like to have his right shoulder treated first. He is not actively engaged in any formal PT nor is he interested in therapy.” Tr.

369. At a hearing before the ALJ, Thomas explained he is now covered under his wife’s private insurance. Tr.

56. When the ALJ asked why Thomas cannot work fulltime, Thomas answered in part, “[A]fter the accident at the railroad they went [sic] to have my whole spine fused together, you know, and it’s like which way do I go? Do I accept the surgery, or do I sit here and hurt? Do I not provide for my family, you know, and it’s like, you know, the mobility issues, and trying to walk, trying to stand, trying to sit, everything just – it’s out of whack right now.” Tr.

62.

The ALJ found Thomas has severe impairments of “disorders of the spine,” diabetes mellitus, and gout. Tr.

13. She found Thomas has the residual functional capacity (“RFC”) to perform light work with additional limitations: He can occasionally lift up to 20 pounds; frequently lift/carry up to 10 pounds; never climb ladders/ropes/scaffolds but can occasionally climb ramps/stairs; occasionally balance, stoop and crawl; frequently kneel and crouch; frequently reach (including overhead) with the right dominant upper extremity; occasionally reach (including overhead) with the left upper extremity; must avoid concentrated exposure to extreme cold, extreme heat, wetness or humidity, poorly ventilated areas and environmental irritants such as fumes, odors, dusts and gasses; must avoid all exposure to vibration, the use of moving machinery and exposure to unprotected heights. Tr.

14.

The ALJ found Thomas is unable to perform his past relevant work but can work as an assembler, marker, and blade balancer, and those jobs exist in significant numbers in the national economy. Tr.

19. The ALJ therefore found Thomas not disabled. Tr. 19–20.

II. Standard

A court’s review of a decision by the Commissioner is limited to whether substantial evidence supports the factual findings 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).

Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoted authority omitted).

The “threshold for such evidentiary sufficiency is not high.” Id. With limited exceptions, a claimant may present new evidence at each stage of the administrative process, including before the Appeals Council. Ingram v. Comm’r of Soc. Sec. Admin., 496 F. 3d 1253, 1261 (11th Cir. 2007).

While the Appeals Council may decline to review the ALJ’s denial of benefits, it “must consider new, material, and chronologically relevant evidence” a claimant submits. Id. Whether additional evidence meets this standard is a question of law subject to de novo review. Washington v. Soc. Sec. Admin., Comm’r, 806 F. 3d 1317, 1321 (11th Cir. 2015).

Evidence is material if there is a reasonable probability it would change the administrative result. Id. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

An erroneous factual statement by an ALJ may be harmless if the ALJ applies the proper legal standard. Diorio v. Heckler, 721 F. 2d 726, 728 (11th Cir. 1983); Majkut v. Comm’r of Soc. Sec., 394 F. App’x 660, 665 (11th Cir. 2010).

III. Law & Analysis

A. Reaching Limitations in the RFC

Thomas contends the reaching limitations in the RFC (limited to frequently reaching with the right dominant upper extremity and occasionally reaching with the left upper extremity) are not supported by substantial evidence.1 Doc. 19 at 14–15. A claimant’s RFC is the most he can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1). The Social Security Administration uses the RFC at step four to decide if the claimant can perform any past relevant work and, if not, at step five with other factors to decide if there are other jobs in significant numbers in the national economy [he/she] can perform. Id. § 404.1545(a)(5). The “mere existence” of an impairment does not reveal its effect on a claimant’s ability to work or undermine

1Thomas summarizes the issue as “[w]hether or not the vocational hypothetical relied upon by the ALJ comprehensively describes Plaintiff’s impairments.” Doc. 19 at 14. RFC findings. Moore v. Barnhart, 405 F. 3d 1208, 1213 n.6 (11th Cir. 2005).

The ALJ need not defer to an opinion about the RFC. 20 C.F.R. § 404.1527(d)(3).

At step five, an ALJ must decide whether a significant number of one or more jobs that the claimant can perform exist in the national economy. Id. § 404.1566(b).

An ALJ may use a vocational expert’s testimony for that finding. Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1180 (11th Cir. 2011).

For a vocational expert’s testimony to be substantial evidence, the ALJ must pose a hypothetical question that includes all of the claimant’s impairments. Id. An ALJ is “not required to include findings in the hypothetical that he had properly rejected as unsupported.” Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1161 (11th Cir. 2004).

Thomas contends that although the ALJ discussed slightly decreased left grip strength and troubled fine-finger movements, the ALJ failed to address his “reduced capacity to perform activities involving flexion (i.e., bending around a joint) [and] his reduced ability for extension (i.e., straightening or extending a flexed limb). (Tr. 83, 349, 555).”2 Doc. 19 at 15. He adds, “The ALJ’s rationale simply did not appreciate plaintiff’s ‘[s]evere limitation with lateral rotation’ in the left hand (Tr. 341) nor his problem with decreased ‘proprioception’, a term which refers to a lack of awareness of body position (Tr. 342) or ‘in-coordination’ (Tr. 344, 346).”3 Doc. 19 at 15. He

2The document at page 83 of the administrative transcript is Thomas’s attorney’s statement at the administrative hearing about medical evidence. The document at page 349 of the administrative transcript is the last page of a report from an October 2015 appointment with Dr. Hurford. The report includes a clinical assessment describing “symptoms consistent with cervical myeloradiculopathy” including “[n]eck pain, headaches, left arm pain, upper extremity weakness, loss of fine motor coo[r]dination, loss of balance, gait abnormality secondary to cervical spinal stenosis compressing the spinal cord from C3 to T1,” and a patient plan recommending surgery to decompress the spinal cord. Tr.

349. The document at page 555 of the administrative transcript is from a May 2016 report from the Institute of Pain Management documenting decreased flexion and extension, both with pain, in Thomas’s cervical spine in a musculoskeletal exam. 3The documents at pages 341 and 342 of the administrative transcript are from a report of a November 2015 appointment with Dr. Hurford. Based on a physical exam, under “Restrictions,” the report states, “Severe limitation with lateral rotation.” Tr.

341. The report does not mention Thomas’s left hand in connection with his lateral rotation. See generally Tr. contends the ALJ’s rationale fails to provide “substantial support for the ALJ’s finding that plaintiff is only limited to ‘occasional’ activities associated with left upper extremity reaching. Even if plaintiff could ‘reach’ as suggested by the ALJ, there is no substantial support for how the plaintiff might be expected to perform left handed reaching activities requiring some bending, lateral rotation or extension with decreased proprioception (i.e., awareness of body position).” Doc. 19 at 15 (emphasis in original).

He contends a difficulty in raising his right arm beyond 30 degrees (citing Tr. 378) also is inconsistent with the RFC.4 Doc. 19 at 15. Substantial evidence supports the ALJ’s limitations on reaching. In a discussion of the medical evidence, Tr. 15–17, the ALJ discussed Thomas’s left upper extremity issues (summarizing from different appointments “cervical spine pain with

341. The statement follows headings “Cervical Spine Evaluation” and “Range of Motion- Measurement” and appears to be part of a cervical spine evaluation. Tr. 340–41. Under “Clinical Assessment,” Dr. Hurford writes, “Clinical examination reveals grossly apparent Hoffman’s reflexes bilaterally, a left inverted radial reflex, decreased fine motor coordination of the left hand, decreased proprioception, a broad-based gait pattern, weakness in left hip flexion, and weakness in his left supraspinatus, infraspinatus, interossei, and grip strengths.” Tr.

342. The documents at pages 344 and 346 of the administrative transcript are from a report of the October 2015 appointment with Dr. Hurford. Under “History of Present Illness” for neck pain, the report states, “Aggravating factors include flexion, lifting and rotation. Denies relieving factors. Associated symptoms include decreased mobility, incoordination, loss of balance, numbness, tingling, weakness, headaches and loss of fine motor coordination.” Tr.

344. In a “Review of Systems,” Thomas was positive for “Headache, Incoordination, Loss of balance, Numbness, Poor coordination, Tingling.” Tr.

346. Whether that review was based on Thomas’s reports or objective results is unclear. 4The document at page 378 of the administrative transcript is from a report of an August 1, 2016, visit with Dr. Mayer after Thomas had been unable to raise his right arm for two weeks following a shoulder injection. Tr.

376. The beginning of the report states, “He does have some discomfort, but it’s largely the problem with raising his arm it’s causing an issue.” Tr.

376. Based on a physical exam, Dr. Mayer wrote, “He is able to raise the arm out to approximately 30 [degrees], after that he requires assistance to lift it any further. It’s not necessarily painful. He has weakness of the supraspinatus tendon.” Tr.

378. Dr. Mayer assessed rotator cuff disorder and other diabetes-related impairments, prescribed medication, and referred him for an MRI and to orthopedic surgery. Tr.

378. Dr. Mayer wrote, “I think most likely he has a complete rotator cuff tear[.] We’ll set him up for an MRI scan of the shoulder, and then he will want to see the orthopedist right after the scan.” Tr. 379. radicular left arm and leg pain and left upper extremity numbness and weakness,” “worsening spasticity of his left arm,” “left grip strength was only slightly decreased to 4/5 with trouble with fine finger movements,” “EMG/NCV studies may be helpful in the upper extremities to evaluate whether there was acute radiculopathy versus compressive neuropathy that may be contributing to ongoing discomfort in left upper and lower extremities,” “EMG needle studies were performed in April 2016 and demonstrated evidence of a mild C6 cervical radiculopathy. A left C6 TFESI (injection) was recommended for palliative purposes. The claimant reported improvement transiently following two injections in July 2016 records,” Tr. 16–17).

The ALJ observed that “July 2016 records also note reported pain in the right upper extremity, left upper extremity, right lower extremity, left lower extremity, back and shoulders. … [In August 2016], he also reported [to Dr. Mayer] that the problem largely involved raising his right arm. A complete AC tear was suspected and an MRI was planned.

However, following this exam, there is no evidence of significant ongoing treatment[.]” Tr.

17.

Most of Thomas’s shoulder complaints before July 2016 concern his left shoulder. Dr. Hussain first lists shoulder pain as a complaint in October 2015 for Thomas’s left shoulder only. Tr.

503. Dr. Hurford’s records generally reflect more complaints with Thomas’s left extremity. Tr. 734, 737 (November 2015; 5/5 strength on the right, 4/5 or 5/5 on the left, normal grip on the right, and reduced grip strength on the left); Tr. 740, 742–43 (July 2015 active pain free range of motion in the right shoulder, limiting factors of pain in the left shoulder); Tr. 746, 748 (June 2015; same result as July). A May 2016 report from Dr. Collier documents Thomas’s left upper extremity and neck pain and that Thomas was pleased with the relief from the last injection, which allowed him to turn his head more and drive better. Tr.

358. For right shoulder pain beginning in July 2016, Thomas received an injection, Tr. 369–70, leading to the complaint to Dr. Mayer about raising his arm. As the ALJ observes, later records after August 2016 show no significant ongoing shoulder treatment. The only records beyond July 2016 are from Thomas’s long-time providers, Dr. Hussain and Dr. Mayer.

In March 2017, Dr. Hussain’s office administered a left shoulder injection, Tr. 814, and in August 2017, the office administered bilateral shoulder injections, Tr.

793. Thomas’s complaints otherwise generally focused on neck and back pain, see, e.g., Tr. 754 (July 2018 appointment), and Dr. Mayer documented nothing significant about Thomas’s shoulders between June 2017 and May 2018, Tr. 587–600.

The evidence Thomas cites regarding flexion and extension—even assuming it concerns reaching—does not mean substantial evidence does not support the ALJ’s finding. Because substantial evidence supports the limitations and the hypothetical adequately accounted for Thomas’s reaching impairments, the vocational expert’s testimony constitutes substantial evidence. Remand to reconsider the RFC or step-five finding is unwarranted.

B. Appeals Council Evidence

Thomas contends the RFC fails to address limitations in an opinion from Stephan Esser, M.D.—an opinion provided not to the ALJ but to the Appeals Council. Doc. 19 at 15. Dr. Esser worked with Dr. Hurford at Heekin Orthopedic Specialists. Tr.

39.

In May 2015, Dr. Esser completed a “Florida Workers’ Compensation Uniform Medical Treatment Status Reporting Form,” apparently as part of the workers’- compensation-benefits process. Tr. 38–39. He diagnosed Thomas with cervical spondylosis with myelopathy. Tr.

38. He checked that diagnostic testing should be ordered, writing an MRI for the “cervical spine w/wout contrast” and “Lumbar spine without.” Tr.

38. He checked that he would transfer care to a specialist and wrote Dr. Hurford’s name. Tr.

38.

Under “The injured worker may return to activities so long as he/she adheres to the functional limitations and restrictions identified below, identify ONLY those functional activities that have specific limitations and restrictions for the patient. Identify joint and/or body part,” Dr. Esser wrote: = eutettonal Activity | toad “Frequency & Dumilen ROM Postion & Otner Fatamerere.. te me pest [...] Breen & Bien ee

vu The gt papesbennead OE Pat ee INS Tn I le tot pepe Pepe pea ory 7 AY Bes ayes It Ss iT ECE Squat ef Stand twist Wal

UJother — ss —

Tr. 39.

The form states, “Any functional limitations or restrictions assigned above apply to both on and off the job activities, and are in effect until the next scheduled appointment unless otherwise noted or modified prior to the appointment date.” Tr. 39.

Under “Patient has achieved maximum medical improvement,” Dr. Esser checked both “No” and “Anticipated MMI date cannot be determined at this time.” Tr. 39. Under “Is a residual clinical dysfunction or residual functional loss anticipated for the work-related injury,” he checked “Undetermined at this time.” Tr. 39. He wrote that Thomas would see Dr. Hurford for any follow-up. Tr. 39.

Thomas submitted this opinion and some other records to the Appeals Council. Tr. 34-51. The Appeals Council denied his request for review, Tr. 1, stating, “You submitted records from Imaging Center Network, dated June 4, 2015 to July 13, 2015 (13 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.”5 Tr. 2. (The evidence is in the record at Tr. 34–51.) In his argument about the RFC, Thomas contends, “In addition to plaintiff’s upper extremity impairments, the functional capacity assessment ascribed to plaintiff fails to address limitations put forth by Stephan Esser, M.D. Evidence submitted to the Appeals Council indicates that plaintiff should have no prolonged positioning for more than 20 minutes without an allowance for weight transfer as needed (Tr. 39). (See also, Tr. 1–7, 14).” Doc. 19 at 15. Elsewhere, Thomas states: “In the plaintiff’s Complaint, he challenges both the decisions of the ALJ and the action of the Appeals Council. See also, sentence four of 42 U.S.C. § 405(g) and Ingram v. Commissioner of Social Security, 496 F. 3d 1253, 1257 (11th Cir. 2007),” Doc. 19 at 2 (cleaned up); “Evidence submitted to the Appeals Council indicated that on May 21, 2015, Stephan Esser, M.D. ([a]ssociated with Heekin Orthopedic Specialists) recommended physical therapy and transferred plaintiff’s care to Dr. Hurford (Tr. 38).

Dr. Esser also limited the plaintiff to no lifting more than twenty pounds, no prolonged positioning more than 20 minutes without an allowance to transfer his weight as needed (Tr. 39),” Doc. 19 at 6. Thomas cites no law on federal-court review of an Appeals Council’s decision other than citing Ingram, without analysis, under “Procedural History.” See Doc. 19 at 2. By referencing Dr. Esser’s opinion in a discussion of medical evidence and contending the RFC is inconsistent with the opinion, Thomas appears to challenge

5The Appeals Council also stated, “You submitted records from Rose Radiology – Largo, dated October 4, 2018 to November 13, 2018 (5 pages). The Administrative Law Judge decided your case through September 27, 2018. 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 September 27, 2018.” Tr.

2. The referenced evidence is not in the record, and Thomas does not discuss or otherwise challenge the Appeals Council’s decision concerning these records. See generally Doc. 19. the Appeals Council’s decision to deny review by finding the evidence does not show a reasonable probability of changing the outcome. The Commissioner also construes Thomas’s brief this way. See Doc. 21 at 11–13 (citing law on federal-court review of the Appeals Council’s decision to deny review and addressing Thomas’s arguments).

The Commissioner also contends Thomas failed to show good cause for not submitting the evidence earlier. Doc. 21 at 13. The Appeals Council did not err in finding that the evidence shows no reasonable probability of changing the ALJ’s decision and therefore is not material. Dr. Esser’s limitation to lifting no more than 20 pounds is consistent with light work in the RFC. Thomas interprets the statement, “No prolonged positioning [for more than] 20 minutes without ability to transition as needed,” Tr. 39, as Dr. Esser’s opinion that he must transfer weight when needed, Doc. 19 at 15. What the statement means is unclear; Dr. Esser wrote it mostly next to the “Pull” and “Push” activities but may have meant a sit/stand option. See Tr.

39. The Commissioner assumes the form was completed based on an in-person exam with Thomas instead of a review of medical records, Doc. 21 at 12, but the form does not specify. What is clear is that the form indicates the restrictions apply only until the next appointment as opposed to a long-term ability to work an eight-hour day, and Dr. Esser marked that Thomas also had not achieved maximum medical improvement, see Tr.

39. Considered with the other evidence on which the ALJ relied, Tr. 15–18, there is no reasonable probability the conclusory opinion on short-term limitations would change the RFC or the ultimate decision.6

6To preserve an issue for appeal, the party must raise the “specific issue to the district court” so that the district court has “an opportunity to consider the issue and rule on it.” Jones v. Apfel, 190 F. 3d 1224, 1228 (11th Cir. 1999).

Generally, this means that the issue must be plainly and prominently raised, with supporting arguments and citations to the evidence and to relevant authority. Sapuppo v. Allstate Floridian Ins. Co., 739 F. 3d 678, 681 (11th Cir. 2014); Morrison v. Comm’r of Soc. Sec., No. 15-14926, 2016 WL 4547171, at *3 (11th Cir. Sept. 1, 2016) (unpublished).

The Court does not construe Thomas’s brief to challenge the Appeals Council’s decision regarding the other evidence he submitted to it. Other documents include imaging Remand to reconsider the additional evidence is unwarranted.

C. Testimony on Pain and Limitations

Thomas contends the ALJ erred in considering his testimony on pain and limitations. Doc. 19 at 16–20. In evaluating a claimant’s subjective complaints of pain or other symptoms, an ALJ must determine whether there is an underlying medical condition and either studies from June 2015, ordered by Dr. Esser. Tr. 35–37. The cervical MRI results are otherwise discussed in medical reports in the record before the ALJ, see, e.g., Tr. 342, and the ALJ discussed them in the decision, Tr.

17. And the lumbar MRI, Tr. 37, shows mild results consistent with other reports documenting lower back pain. Other documents are parts of reports from Dr. Hurford, Tr. 40–41, already in the record elsewhere, Tr. 744, 751. Another document is a June 2015 “Therapy Order” from Dr. Hurford referring Thomas to physical therapy, which was discussed in another report by Dr. Hurford, Tr. 751, and in the ALJ’s decision, Tr.