Jerry F. Popham, Jr. v. Acting Commissioner of Social Security

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14077
Non-Argument Calendar
________________________
D.C. Docket No. 2:14-cv-00157-LGW-RSB
JERRY F. POPHAM, JR.,
Plaintiff-Appellant,
versus
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 28, 2017)
Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Jerry Popham appeals the district court’s order affirming the final decision
of the Social Security Commissioner denying Popham’s applications for
supplemental security income (“SSI”) and disability insurance benefits (“DIB”).
After review, we affirm.
I. BACKGROUND
The Administrative Law Judge (“ALJ”) concluded that Popham was not
disabled because, although he had several severe impairments, including bipolar
disorder and major depression, that prevented him from performing his past
relevant work at a pulp mill, Popham retained the residual functional capacity
(“RFC”) to perform other jobs in the economy. Popham requested Appeals
Council review and submitted additional evidence, including: (1) a mental residual
function capacity (“MRFC”) questionnaire completed and signed by Dr. Douglas
Cooper, a physician, and Tamara Thorn, a physician’s assistant, both of whom had
treated Popham at Gateway Behavioral Health Services (“Gateway”); and (2)
progress notes from Gateway between August 8, 2013 and March 20, 2014, after
the ALJ’s decision. The Appeals Council, in denying review, stated that it had
considered Popham’s additional evidence and “found that this information d[id]
not provide a basis for changing the [ALJ’s] decision.”
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II. DISCUSSION
On appeal, Popham argues that the Appeals Council erred in denying his
request for review and failed to consider adequately the MRFC questionnaire.1
Popham contends that the MRFC questionnaire, when properly considered,
supports only one conclusion, that he is disabled. We disagree and explain why.
A. Petitions for Appeals Council Review Based on New Evidence
Generally, a claimant may present new evidence at each stage of the
administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1261 (11th Cir. 2007); 20 C.F.R. §§ 404.900(b), 416.1400(b). If a claimant
presents evidence after the ALJ’s decision, the Appeals Council must consider it if
it is new, material, and chronologically relevant. 20 C.F.R. §§ 404.970(a)(5), (b),
416.1470(a)(5), (b). New evidence is chronologically relevant if it “relates to the
period on or before the date of the [ALJ’s] hearing decision.” Id. §§ 404.970(a)(5),
416.1470(a)(5). The evidence is material if “there is a reasonable possibility that
the new evidence would change the administrative outcome.” Hyde v. Bowen, 823
F.2d 456, 459 (11th Cir. 1987); see also 20 C.F.R. §§ 404.970(a)(5),
416.1470(a)(5). New evidence must not be cumulative of other evidence in the
record. See Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986). The Appeals
1
On appeal, Popham does not make any argument as to Gateway’s post-decision progress
notes. Instead, Popham argues only that the Appeals Council erred in light of the MRFC
questionnaire. Thus we address only the import of the MRFC questionnaire.
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Council must grant the petition for review if the ALJ’s “action, findings, or
conclusion is contrary to the weight of the evidence,” including the new evidence.
Ingram, 496 F.3d at 1261 (quotation marks omitted).
The Appeals Council, however, is not required to provide a detailed
explanation of a claimant’s new evidence when it denies a petition for review.
Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 783-85 (11th Cir. 2014); see
also Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847, 852-53 (11th
Cir. 2015). Where the Appeals Council added the new evidence to the record,
stated it had considered the new evidence, and denied review because “the
information did not provide a basis for changing the ALJ’s decision,” the Appeals
Council’s explanation is sufficient, at least when the record does not provide a
“basis for doubting the Appeals Council’s statement that it considered [the
claimant’s] additional evidence.” Mitchell, 771 F.3d at 782-84 (distinguishing
Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980), in which the new evidence directly
undermined the ALJ’s stated rationale for its decision and thus “provided us with
an affirmative basis for concluding the Appeals Council failed to evaluate the
claimant’s new evidence”); see also Parks, 783 F.3d at 853 (further distinguishing
Epps because the appeal arose in a different procedural context in which the
Appeals Council affirmed the ALJ’s decision rather than denied a request for
review).
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B. Chronological Relevance
As an initial matter, the government points out that Dr. Cooper and PA
Thorn completed the MRFC questionnaire after the ALJ’s July 3, 2013 decision,
outside the relevant time period under consideration by the ALJ. The Appeals
Council, however, accepted and considered the MRFC questionnaire, which
indicates the Appeals Council concluded the MRFC questionnaire related to the
relevant period. See 20 C.F.R. §§ 404.970(c), 416.1470(c) (providing that if the
claimant submits additional evidence that does not relate back to the relevant
period, the Appeals Council will provide notice explaining why it did not accept
the additional evidence). Moreover, the government does not go so far as to argue
that the MRFC questionnaire does not relate back. Accordingly, for purposes of
this appeal, we assume the MRFC questionnaire is chronologically relevant.2
2
We note that, according to Gateway’s progress notes, Popham received mental health
treatment from its medical staff, including Dr. Cooper and PA Thorn, beginning on February 29,
2012, i.e., within the relevant period of August 8, 2009 (the alleged onset date) to July 3, 2013
(the date of the ALJ’s decision). In fact, at the ALJ hearing Popham testified that he was being
treated by psychiatrists at Gateway. Thus, the fact that Dr. Cooper and PA Thorn completed the
questionnaire on August 8, 2013, after the ALJ’s decision, does not mean the evaluation did not
relate to the relevant period. In any event, this Court has “recognized that medical opinions
based on treatment occurring after the date of the ALJ’s decision may be chronologically
relevant.” Washington v. Soc. Sec. Admin., Comm’r., 806 F.3d 1317, 1322 (11th Cir. 2015)
(concluding doctor’s post-decision evaluation was chronologically relevant where the doctor
knew about the claimant’s symptoms during the relevant period and had reviewed the claimant’s
treatment records from that period).
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B. Popham’s Petition for Appeals Council Review
Considering the record as a whole, including the MRFC questionnaire, the
Appeals Council properly denied Popham’s request for review. First, we reject
Popham’s argument that the Appeals Council failed to adequately explain its
reason for denying review. The Appeals Council stated that it had considered
Popham’s additional evidence and had found that this new information did not
provide a basis for changing the ALJ’s decision. Under our precedent, no further
explanation was required of the Appeals Council. See Parks, 783 F.3d at 852-53;
Mitchell, 771 F.3d at 784. Furthermore, nothing in the record provides a basis for
concluding the Appeals Council did not in fact consider the MRFC questionnaire.
See Mitchell, 771 F.3d at 783-84.
Second, the MRFC questionnaire does not render the ALJ’s denial of
benefits erroneous. See Ingram, 496 F.3d at 1262 (explaining that when the
Appeals Council considers the new evidence but denies review, our review “must
consider whether that new evidence renders the denial of benefits erroneous”). In
the MRFC questionnaire, Dr. Cooper and PA Thorn stated that Popham suffered
from mood swings and threatening behavior and was noncompliant with his
medications. They opined that his prognosis was fair if he took his medications,
but poor if he did not. They listed 23 “signs and symptoms,” which included,
among other things, perceptual or thinking disturbances, paranoid thinking,
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hallucinations or delusions, flight of ideas, illogical thinking, and pathologically
inappropriate suspiciousness or hostility. As to work-related mental abilities and
aptitudes, they opined that Popham had no useful ability to: (1) accept instructions
and respond appropriately to criticism from supervisors; (2) get along with co-
workers or peers without unduly distracting them or exhibiting behavior extremes;
(3) respond appropriately to changes in a routine work setting; and (4) deal with
normal work stress. Dr. Cooper and PA Thorn further opinioned that Popham
could not satisfactorily: (1) complete a normal workday and workweek without
interruptions from psychologically based symptoms; (2) perform at a consistent
pace without an unreasonable number and length of rest periods; (3) ask simple
questions or request assistance; (4) travel in an unfamiliar place; and (5) use public
transportation. They believed that these limitations were “[l]ifelong” and that
Popham would have difficulty working a regular job on a sustained basis because
he would become volatile at a job site.
The opinions in the MRFC questionnaire, however, are inconsistent with the
other evidence in the record, including other mental health treatment records,
Popham’s own testimony, the opinions of three consulting psychologists, including
one who examined Popham, and, perhaps most importantly, Gateway’s own
progress notes.
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Popham’s other mental health records do not indicate the same severe
impairments reflected in the MRFC questionnaire. For example, during Popham’s
two voluntary hospitalizations in 2009, he was depressed and anxious, but he was
also alert, oriented, and cooperative. Popham had no psychosis, hallucinations,
delusions, or illusions, and he had normal cognitive functioning, attention,
calculation, orientation, and memory, and he was able to participate well in group
settings, contrary to the determinations in the MRFC questionnaire that he could
not work with others. Similarly, between December 2009 and January 2013, while
being treated by Drs. Jennifer Miller and Eddy Vincent, Popham’s thought process
was generally logical, his behavior was appropriate, he was alert and oriented, his
insight and judgment were fair, and there was no impairment of his cognition or
acute mental distress noted.
The MRFC questionnaire is also inconsistent with Popham’s work history
and self-reported activities. At the hearing, Popham testified that he did many
activities involving other people, such as attending church fellowship meetings,
participating in a prison ministry, visiting nursing home residents, bowling, and
spending time with family. He also said that he had worked at the same job at a
pulp mill for 29 years. This testimony contradicts the opinion in the MRFC
questionnaire that Popham’s mental limitations were severe and lifelong. Notably,
while hospitalized in 2009, Popham told Dr. Vincent that his depression began
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“some years” earlier as a result of a gambling addiction, but that his recent
depression, mood swings, and anxiety were caused by the new stressors of injuring
his back and then losing his job.
In addition, the medical records from Gateway during the relevant period do
not support Dr. Cooper and PA Thorn’s opinions in the MRFC questionnaire.3
Gateway’s treatment notes indicate that from February 2012 to January 2013,
Popham was treated for mood swings and depression, but that he had logical
thought process and generally appropriate behavior, he was alert and oriented, he
did not report delusions, hallucinations or mania, his insight and judgment were
fair, and he had no cognitive impairment. Popham reported arguing with family
members only once, and PA Thorn agreed to adjust Popham’s medication. 4 On
other visits, Popham reported to Dr. Cooper “no concrete complaints,” except
myalgia/parasthesias and to PA Thorn that he was “doing well” and that his
“meds/mood are stable.” There is no documentation in the progress notes of
noncompliance with medications or of the kind of violent, threatening behavior
reported in the MRFC questionnaire. There was also no documentation of many of
3
We note that Gateway’s post-decision progress notes for Popham’s treatment between
August 2013 and March 2014 also do not appear to support the opinions expressed in the MRFC
questionnaire.
4
During a July 23, 2012 visit, Popham told PA Thorn that he had fought with his mother
over money because his mother did not want him to contribute to the prison ministry and with
his wife about cleaning the house. There were no reports, however, of violent or threatening
behavior requiring police intervention, as reported in the MRFC questionnaire.
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the “signs and symptoms” identified in the MRFC questionnaire, such as
pathological dependence, passivity or aggressivity; intense and unstable
interpersonal relationships and impulsive and damaging behavior; perceptual or
thinking disturbances; hallucinations or delusions; flight of ideas; deeply ingrained,
maladaptive patterns of behavior; illogical thinking; pathologically inappropriate
suspiciousness or hostility; or involvement in activities that have a high probability
of painful consequences which are not recognized.
Finally, the MRFC questionnaire is inconsistent with the psychological
evaluation by Dr. Greg Cox, a consulting psychologist who reviewed Popham’s
medical records and examined Popham in May 2012. 5 Popham reported to Dr.
Cox that: (1) in school he made good grades without special education services,
was shy, but had a few good friends, had great relationships with his teachers, and
an unremarkable attendance and disciplinary history; (2) at his pulp mill job, he
had good relationships with his co-workers and bosses and was able to deal
5
Popham argues that the Appeals Council, in denying review, ignored the opinion of Dr.
Cooper, a treating psychiatrist, and instead “perfunctorily” approved the ALJ’s reliance on the
“diametrically opposed opinion” of Dr. Cox, a consulting psychologist. In evaluating medical
opinions, however, the ALJ is not required to give greater weight to the opinion of a treating
doctor where it is not bolstered by the evidence or is inconsistent with the doctor’s own records.
See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Here, as the ALJ
found, Dr. Cox’s opinion, which was based on his review of the record evidence, his own
evaluation, and objective diagnostic tests, was “consistent with the record as a whole.” Dr.
Cooper’s opinion, on the other hand, was inconsistent not only with Dr. Cox’s opinion, but also
with, as we discuss above, the other evidence in the record, including Dr. Cooper’s own progress
notes. In other words, Dr. Cooper’s opinion was not entitled to greater weight than Dr. Cox’s
opinion and did not render the ALJ’s decision “contrary to the weight of the evidence.” See
Ingram, 496 F.3d at 1261.
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effectively with the public; (3) he first noted psychological problems in 2009,
which was when he injured his back and lost his job, and (4) his previous inpatient
and outpatient interventions and his medications, Paxil and lithium, were helpful.
Popham said his current stressors were “confusion, difficulty making decisions,
grief regarding [the] recent loss of [his] sister, and mind racing.” Popham said his
daily activities included visiting nursing homes, spending time with his grandson
and friends, and doing some prison ministry.
Dr. Cox’s findings from the mental status examination included that: (1)
Popham’s attention was intact with some distractibility; (2) stress and frustration
were noted secondary to the loss of his sister, but that Popham “managed stress and
frustration adequately”; (3) Popham’s mood and affect were variable but
appropriate to the conversation; (4) his thought processes were goal-oriented and
logical, with good social judgment and no evidence of hallucinations or delusions;
(5) he followed directions easily; and (6) he exhibited no unusual behaviors, easily
engaged Dr. Cox, had a good sense of humor, and was cooperative, compliant, and
appropriately accepting of help.
As a result of his examination and two tests (Wechsler Memory Scale - Brief
Cognitive Status Exam and Rey 15 item), Dr. Cox opined that Popham’s
depression, which was secondary to his injury and job loss, was severe in 2009, but
“currently at a moderate level.” Although Popham reported manic symptoms, Dr.
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Cox found that “evidence for thoroughly developed manic episode is not
presented,” but might be “masked by the lithium Mr. Popham takes.” Dr. Cox
believed Popham’s prognosis for improvement was poor, and that while Popham’s
concentration and persistence appeared unaffected, his pace was slowed. Dr. Cox
opined that Popham had no significant limitations in his ability to relate to others
and to complete simple one-step and two-step instructions and had only mild
limitations in his ability to maintain attention to do simple, repetitive tasks and
withstand the stress and pressure associated with day-to-day work settings. Dr.
Cox pointed out that Popham’s work history was “not consistent with him losing
functional ability with typical vocational stress and change.”
In total, Dr. Cox’s findings contradict the view expressed in the MRFC
questionnaire that during the relevant time period Popham was unable to perform
(either at all or to an employer’s satisfaction) a number of work-related mental
tasks, such as accepting instructions, getting along with co-workers, responding
appropriately to supervisors, and handling stress. Notably, the two state
psychologists who subsequently reviewed Popham’s medical records agreed with
Dr. Cox that Popham’s mental impairments imposed only mild or moderate
limitations.
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In sum, the MRFC questionnaire submitted to the Appeals Council does not
render the ALJ’s denial of benefits erroneous. Accordingly, the Appeals Council
did not err in denying Popham’s request for review based on this new evidence.
AFFIRMED.
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