Smith v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION that the decision of the Commissioner is AFFIRMED. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr. on 11/7/2013. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
SABRINA SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:12-cv-581-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Sabrina Smith, applied for supplemental security income (“SSI”) under

Title XVI of the Social Security Act, 42 U.S.C. §§ 405(g) & 1383(c)(3). Her application
was denied at the initial administrative level. Plaintiff then requested and received a
hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ
issued a decision in which she found Plaintiff not disabled at any time through the date of
the decision. The Appeals Council rejected Plaintiff’s request for review of the ALJ’s
decision.

The ALJ’s decision consequently became the final decision of the

Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The case is now before the court for review under 42 U.S.C. §
405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

proceedings and entry of a final judgment by the undersigned United States Magistrate
Judge. Pl.’s Consent to Jurisdiction (Doc. 9); Def.’s Consent to Jurisdiction (Doc. 8).
Based on the court’s review of the record and the briefs of the parties, the court
AFFIRMS the decision of the Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when

the person is unable to
engage in 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 or can be expected to last for a
continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
Impairments]
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

2

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (grids) or call a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available

3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The
same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited
as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

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to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This Court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must
view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was thirty-nine years old at the time of the ALJ’s decision. Tr. 24.

Plaintiff completed the tenth grade. Tr. 24. Plaintiff’s past relevant work is “unskilled.”
Tr. 27. Following the administrative hearing, and employing the five-step process, the
ALJ found Plaintiff “has not engaged in substantial gainful activity since August 6, 2009,
the application date.” (Step 1) Tr. 23. At Step 2, the ALJ found that Plaintiff suffers
from the following severe impairments:

“fibromyalgia, lumbar radiculopathy,

degenerative disc disease, mild lumbar canal stenosis, restless leg syndrome and anemia.”
Id. The ALJ then found that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” (Step 3) Id.
Next, the ALJ found that Plaintiff has the RFC to perform light work with severe
restrictions. Id. The ALJ then concluded that Plaintiff “is unable to perform any past
relevant work.” (Step 4) Tr. 27. At Step 5, the ALJ found that, “[c]onsidering the
claimant’s age, education, work experience, and residual functional capacity,” and after
consulting with the VE, “there are jobs that exist in significant numbers in the national
economy that the claimant can perform.” Tr. 27-28. The ALJ identified the following
occupations as examples: “bench assembler,” “housekeeper,” and “packer.” Tr. 28.
Accordingly, the ALJ determined that Plaintiff “has not been under a disability, as
defined in the Social Security Act, since August 6, 2009, the date the application was
filed.” Id.
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IV.

PLAINTIFF’S CLAIMS
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s

decision: (1) whether “[t]he Commissioner’s decision should be reversed because the
ALJ failed to afford the proper weight to the medical opinion of Dr. Arnold, [Plaintiff’s]
treating physician, or consider the various factors in evaluating the opinion of a treating
physician”; and (2) whether “[t]he Commissioner’s decision should be reversed because
the ALJ failed to adequately consider the severity of [Plaintiff’s] fibromyalgia.” Pl.’s Br.
(Doc. 12) at 3-4.
V.

DISCUSSION
A.

Whether the ALJ failed to afford the proper weight to the medical opinion
of Dr. Arnold.

Plaintiff argues that the ALJ erred in his treatment of Dr. Arnold’s opinion. Dr.
Arnold was Plaintiff’s treating physician, and Plaintiff argues that his opinion should
have been given controlling weight. Specifically, Plaintiff asserts that the ALJ failed to
“apply the rules outlined by the regulations or Eleventh Circuit case law in evaluating the
opinion of a treating physician.” Pl.’s Br. (Doc. 12) at 9. Plaintiff properly cites to the
applicable regulations:

“An ALJ must give the opinion of a treating source

controlling weight if he finds the opinion ‘well-supported by medically accepted
clinical and laboratory diagnostic techniques’ and ‘not inconsistent with the other
substantial evidence in [the] case record.’” Id. at 7 (emphasis added) (citing 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2)). Indeed, the ALJ did not give Dr. Arnold’s opinions
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controlling weight based on the inconsistency of the doctor’s records and inconsistency
with objective medical evidence in the record. See Tr. 26.
Normally an ALJ must give the opinion of a treating physician “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” See Phillips, 357
F.3d at 1240. “‘[G]ood cause’ exists when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Id. at 1240-41. Further, “[t]he ALJ must clearly articulate the reasons for
giving less weight to the opinion of a treating physician, and the failure to do so is
reversible error.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (holding the ALJ “must
specify what weight is given to a treating physician’s opinion and any reason for giving it
no weight”).
Here, the ALJ’s articulated “good cause” for the rejection of Dr. Arnold’s
opinion—that evidence supported a contrary finding and Dr. Arnold’s opinion was
inconsistent with his own treatment notes—is supported by substantial evidence. In fact,
the decision states, “The [ALJ] does not give controlling weight to Dr. Arnold’s opinion
because it is not only inconsistent with his own records but with the objective medical
evidence in the record.” Tr. 26. In the decision, the ALJ highlighted that Dr. Arnold’s
physical capacities evaluation of Plaintiff contained various restrictions, including that
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Plaintiff could sit for only two hours in an eight-hour work day and stand or walk for four
hours in an eight-hour work day. Id. Dr. Arnold also opined that Plaintiff “would likely
miss work more than four days a month.” Id. However, as the ALJ discussed in the
decision, Plaintiff’s most recent x-rays of the neck, shoulders, and spine were normal, as
were Plaintiff’s chest x-ray and EKG. Id. Further, although Plaintiff’s most recent MRI
revealed mild abnormalities, Dr. Arnold noted that “all examinations were normal.” Id.
Moreover, the ALJ explained in the decision that the records from Doctors Brooks,
Williams and Malik supported the ALJ’s finding that Plaintiff can perform work activity.
Id. The ALJ’s decision sets forth the similarities in each of these three doctors’ opinions
and states that “all of the examinations [of Plaintiff] have been essentially normal.” Id.
Thus, the ALJ articulated good cause and the court finds that the determination is
supported by substantial evidence.
Plaintiff also argues that, “as the ALJ did not find Dr. Arnold’s opinion was
entitled to controlling weight, she then should have applied the various factors required.”
Pl.’s Br. (Doc. 12) at 9. Specifically, Plaintiff alleges that, in determining what weight to
give Dr. Arnold’s opinion, the ALJ failed to consider “the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a
whole, and the specialization of the treating source.” Id. at 9-10. However, Plaintiff has
not presented any law that requires the ALJ to expressly discuss each of these factors.
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Further, the ALJ did expressly discuss the supportability of the opinion and inconsistency
of the opinion with the record as a whole, as discussed above. Tr. 26. It is also clear
from the decision that the ALJ did consider, at least to some extent, the length of the
treatment relationship, frequency of examination, and nature and extent of the treatment
relationship, as the ALJ’s decision summarizes multiple occasions on which Plaintiff
presented to Dr. Arnold for examination or treatment. Tr. 25.
The court has reviewed Dr. Arnold’s opinion and agrees with the ALJ’s
determination to accord it considerably less weight. The opinion appears to be an outlier,
unsupported by the other medical record of evidence, and inconsistent with the doctor’s
treatment notes. Accordingly, the court finds no error.
B.

Whether the ALJ failed to adequately consider the severity of Plaintiff’s
fibromyalgia.

Plaintiff argues that although the ALJ found that Plaintiff suffered from a severe
impairment of fibromyalgia, “the ALJ failed to make any specific findings regarding
[Plaintiff]’s tender points, pain or any other typical fibromyalgia symptoms or include
any accommodating limitations in her RFC.” Pl.’s Br. (Doc. 12) at 10. The court does
not agree. In making the Step 2 determination, the ALJ found that Plaintiff had severe
impairments, including fibromyalgia, lumbar radiculopathy, degenerative disc disease,
mild lumbar canal stenosis, restless leg syndrome, and anemia. Tr. 23. The ALJ again
considered the fibromyalgia when assessing the RFC. See Tr. 23-27. Specifically, the
ALJ stated that,
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[Plaintiff] in documentation of record has alleged fibromyalgia, lumbar
radiculopathy, degenerative disc disease, mild lumbar stenosis, restless leg
syndrome and anemia as a basis of disability. The undersigned concluded
that, while the record contains evidence of the existence of these
impairments, the objectively demonstrable evidence of record fails to
support that [Plaintiff] is as impaired as she has alleged.
Tr. 25.
To the extent that Plaintiff is arguing that the ALJ failed to properly consider
Plaintiff’s chronic pain, the court does not agree.

Plaintiff’s Brief explains that

fibromyalgia can, in some cases, be a disabling condition and contains a list of citations
to the record to support that Plaintiff experiences pain. Pl.’s Br. (Doc 12) at 10-14.
However, the ALJ acknowledged that Plaintiff suffers from both fibromyalgia and pain.
Tr. 23, 25, 27. Thus, the ALJ did consider Plaintiff’s fibromyalgia and pain. Plaintiff’s
Brief fails to explain why Plaintiff is unable to complete light-level work with additional
restrictions, as set out in the RFC. In other words, Plaintiff has failed to articulate what
functions within the RFC her fibromyalgia precludes her from performing.
To the extent that Plaintiff is challenging the ALJ’s determination of Plaintiff’s
credibility with respect to the limitations caused by her pain, the court does not agree.
The ALJ has the discretion to assess such credibility, so long as the ALJ “clearly
articulate[s] explicit and adequate reasons” for the credibility determination. Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (internal quotation marks omitted).
Aside from the medical evidence that supported the ALJ’s findings that Plaintiff can
perform light work activity with additional restrictions, the ALJ also considered the
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following: Plaintiff’s daily activities, which include serving as the primary care giver for
three children and completing housework (Tr. 26); Plaintiff’s success “in maintaining
control of her conditions and mitigating any accompanying symptomatology” through
medication (Tr. 27); and Plaintiff’s “overall lack of persistent and regular treatment” (Tr.
27).

Thus, the court finds that the ALJ properly articulated the reasons for her

assessment of Plaintiff’s credibility with respect to Plaintiff’s pain.
Finally, the ALJ did limit Plaintiff’s RFC to accommodate Plaintiff’s fibromyalgia
and pain. The ALJ found that Plaintiff can only complete light work with additional
limitations. Tr. 23, 27. The ALJ specifically acknowledged that “the unskilled element
of the [RFC] is associated with [Plaintiff’s] allegations of chronic pain.” Tr. 27. Thus,
the court finds no merit in Plaintiff’s argument that the ALJ failed to consider Plaintiff’s
fibromyalgia and pain or include sufficient accommodating limitations when determining
the RFC.
VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 7th day of November, 2013.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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A