Jones v. Astrue (CONSENT)

Filing 21

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 12/3/2009. (wcl, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S U S IE MAE JONES, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:08cv914-WC M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Susie Mae Jones applied for disability insurance benefits under Title II of the S o c ia l Security Act ("the Act"), 42 U.S.C. 401 et seq., and supplemental security income u n d e r Title XVI of the Act, 1381 et seq. Her applications were denied at the initial a d m in is tra tiv e level. Plaintiff then requested and received a hearing before an A d m in is tra tiv e Law Judge (ALJ). Following the hearing, the ALJ issued a decision in which h e found Plaintiff disabled as of March 1, 2007, but not disabled from the alleged onset date o f July 5, 2005, through February of 2007. Tr. 23. After accepting additional evidence from P lain tiff , the Appeals Council ultimately rejected her request for review of the ALJ's d e c is io n . The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 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 1 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. 405(g). Pursuant to 2 8 U.S.C. 636(c), both parties have consented to the conduct of all proceedings and entry o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Ju risd iction (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #10). Based on the Court's re v ie w of the record and the briefs of the parties, the Court AFFIRMS the decision of the C o m m i s s io n e r . II. STANDARD OF REVIEW U n d e r 42 U.S.C. 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. 4 2 U.S.C. 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. 404.1520, 416.920 (2006). (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 im p a i r m e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] Security. 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 2 (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? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f 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 F u n ctio n al Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines4 (grids) or call a vocational 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 3 See 20 C.F.R. pt. 404 subpt. P, app. 2. 3 e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d 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 e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e r a le s, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m iss io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, 4 in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). III. ADMINISTRATIVE PROCEEDINGS P la in tif f was fifty-three years old at the time of the hearing before the ALJ. Tr. 268. P la in tif f has a twelfth grade education. Tr. 268. Plaintiff's past relevant work experience in c lu d e d work as a sewing machine operator and "building supply finisher sander." Tr. 29, 2 7 9 . Following the administrative hearing, and employing the five-step process, the ALJ f o u n d Plaintiff had not engaged in substantial gainful activity since the alleged onset date of J u l y 5, 2005 (Step 1). Tr. 25. At Step 2, the ALJ found that Plaintiff suffers from the f o llo w in g severe impairments: "obesity; status post left breast mastectomy (carcinoma) and re c o n s tru c tio n , status post chemotherapy, and right breast reduction; and lumbar radiculitis." T r. 25. The ALJ then found that "[s]ince the alleged onset date of disability, the claimant has n o t had an impairment or combination of impairments that meets or medically equals one of th e listed impairments." (Step 3) Tr. 25. Next, the ALJ found that, prior to March 1, 2007, P la in tif f retained the RFC to "perform light work with a sit/stand option" but would have been restricted from "activities involving unprotected heights, climbing la d d e rs /ro p e s/s c a ff o ld s , and being around hazardous machinery or driving commercial v e h ic le s." Tr. 25-26. The ALJ further determined that, as of March 1, 2007, Plaintiff has b e e n limited to sedentary work. Tr. 28. The ALJ then found that, since the alleged onset 5 d a te , Plaintiff has been unable to perform her past relevant work. (Step 4) Tr. 29. Next the A L J found that, given Plaintiff's RFC prior to March 1, 2007, and after consulting with a v o c a tio n a l expert, there were significant numbers of jobs in the national economy which P la in tif f could have performed. (Step 5) Tr. 29. Such occupations included: "ticket seller," " te a ch e r aide," and "sales attendant." Tr. 29-30 & 281. Accordingly, the ALJ determined th a t, prior to March 1, 2007, Plaintiff was not disabled, but that her disability began on that d a te . Tr. 30. IV . P L A I N T I F F 'S CLAIMS P la in tif f alleges four errors requiring reversal of the ALJ's decision: (1) the ALJ failed to "properly evaluate [Plaintiff's] subjective complaints;" (2) the ALJ failed to "state with sp e c if icity the weight given [Plaintiff's] treating sources;" (3) the ALJ failed to "properly e v a lu a te the impact of [Plaintiff's] obesity on her ability to perform work-related activities;" a n d (4) "this case should be remanded under Sentence 6 of 42 U.S.C. 405(g) for the taking o f new evidence where the evidence is noncumulative, material, and there is good cause for n o t submitting it sooner." Pl.'s Brief (Doc. #18) at 4. The Court will address Plaintiff's c la im s in the order in which they are discussed in her brief. V. DISCUSSION A. T h e ALJ's treatment of Plaintiff's treating sources. P lain tiff claims that the "ALJ failed to state with specificity the weight given to 6 [ P l a in tif f 's ] treating sources." Pl.'s Brief (Doc. #18) at 8. Plaintiff claims that the ALJ " m e re ly recited the medical evidence in narrative form," and that he failed to "`state with p a rtic u la rity' the weight that he assigned to any treating source medical opinion." Id. D e f en d a n t maintains that the ALJ did not err in his treatment of medical source opinion e v id e n c e . W h e n deciding a claim of disability, the ALJ is "required to state with particularity th e weight he gave the different medical opinions and the reasons therefor." Sharfarz v. B o w e n , 825 F.2d 278, 279 (11th Cir. 1987). "In the absence of such a statement, it is im p o s s ib le for a reviewing court to determine whether the ultimate decision on the merits of th e claim is rational and supported by substantial evidence." Cowart v. Schweiker, 662 F.2d 7 3 1 , 735 (11th Cir. 1981). In this case, Plaintiff points to no specific piece of opinion evidence for which, it is a s s e rte d , the ALJ failed to sufficiently articulate what weight was afforded. Plaintiff only p o i n ts to evidence in the record which indicates that Plaintiff was "having problems with p eriph era l neuropathy as a consequence of receiving chemotherapy in early 2006." Pl.'s B rie f (Doc. #18) at 9. She also asserts that there is "no indication that these problems ever c e as e d ." Id. As the Commissioner points out, there is no functional capacity evaluation p re d a tin g March 1, 2007, in the record, and the only significant opinion evidence presented to the ALJ postdates March 1, 2007, the date on which the ALJ found Plaintiff's onset of d is a b ility. See, e.g., Tr. 236-37, 243. Thus, any failure to sufficiently articulate the weight 7 a f f o rd e d such evidence is harmless, as the ALJ clearly credited any opinion evidence re n d e re d after March 1, 2007, which supported Plaintiff's claim of disability. Evidence p re d a tin g March 1, 2007, which merely documents Plaintiff's complaints of pain, and p h ys ic ia n s ' subsequent treatments, does not constitute "opinion" evidence. See 20 C.F.R. 404.1527(a)(2) (defining medical opinions as "statements . . . that reflect judgments about th e nature and severity of your impairment(s), including your symptoms, diagnosis and p ro g n o s is , what you can still do despite impairment(s), and your physical or mental re stric tio n s " ). Thus, the evidence cited by Plaintiff which establishes her complaints of and tre a tm e n t for "neuropathy," see Tr. 181-183, does not equate to "opinion evidence" and does n o t trigger the ALJ's obligation to state with "particularity" what weight was afforded such ev iden ce . Moreover, the evidence further establishes that the severity of Plaintiff's n e u ro p a th y was alleviated by subsequent treatments. See Tr. 179, 177, 176, 174. Given all of the above, Plaintiff's claim that the ALJ failed to sufficiently articulate th e weight he afforded medical opinion evidence is without merit. B. T h e ALJ's treatment of Plaintiff's subjective complaints of pain. P la in tiff claims the ALJ's findings with respect to Plaintiff's subjective complaints o f pain, "do not comply with the law of this Circuit." Pl.'s Brief (Doc. #18) at 10. In s u p p o rt, Plaintiff discusses the "pain standard" and cites to records which, it is asserted, lend o b je c tiv e support to her claims of pain. Id. Defendant maintains that the ALJ complied with g o v e rn in g regulations and applicable law in finding Plaintiff's subjective complaints of pain 8 le ss than fully credible. Def.'s Brief (Doc. #19) at 9. T h e Court of Appeals for the Eleventh Circuit has articulated its "pain standard," g o v e rn in g the evaluation of a claimant's subjective testimony about pain, as follows: In order to establish a disability based on testimony of pain and other s ym p to m s , the claimant must satisfy two parts of a three-part test showing: (1) e v id e n c e of an underlying medical condition; and (2) either (a) objective m e d ic a l evidence confirming the severity of the alleged pain; or (b) that the o b je c tiv e ly determined medical condition can reasonably be expected to give ris e to the claimed pain. W ils o n v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ evaluates the " c la im a n t's subjective testimony of pain" only after the claimant satisfies the first and one o f the alternate portions of the second prong of the pain standard. Foote v. Chater, 67 F.3d 1 5 5 3 , 1560 (11th Cir. 1995). The Eleventh Circuit has also held that, "in certain situations, p a in alone can be disabling, even when its existence is unsupported by objective evidence." Id . at 1561. Importantly, it is only evidence of the underlying condition which could r e a so n a b l y be expected to cause pain, not evidence of actual pain or its severity, which must b e presented by the claimant to satisfy the "pain standard." Elam v. Railroad Retirement Bd., 9 2 1 F.2d 1210, 1215 (11th Cir. 1991). See also Foster v. Heckler, 780 F.2d 1125, 1129 (4th C ir. 1986); Hill v. Barnhart, 440 F. Supp.2d 1269, 1272-73 (N.D. Al. 2006) (quoting Elam, 9 2 7 F.2d at 1215). Where the ALJ proceeds to consider the claimant's subjective testimony a b o u t pain, the ALJ's decision to reject or discredit such testimony is reviewed for substantial e v id e n c e . Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Finally, if the ALJ 9 d e te rm in e s to discredit subjective pain testimony and such testimony is crucial to the c la im a n t's assertion of disability, the ALJ "must articulate specific reasons for questioning th e claimant's credibility." Id. A t the hearing before the ALJ, Plaintiff testified about "back pain" she experiences w h e n sitting up and when she sleeps (Tr. 269-70) and pain in her arm, leg, and knee which sh e attributes to arthritis (Tr. 270-71). Plaintiff described the pain as "[f]rom seven to eight. S o m etim es nine," (Tr. 271), and occurring anywhere two to four days a week (Tr. 272). P la in t if f also testified about carpal tunnel disease in her hands. Tr. 274. Plaintiff also te s tif ie d about the limitations these pains cause her in daily activities. Tr. 269, 273-75. Upon reviewing the record and Plaintiff's testimony, the ALJ identified several u n d e rlyin g medical conditions and determined that "the claimant's medically determinable im p a irm e n ts could reasonably be expected to produce the alleged symptoms, but that the c la im a n t ' s statements concerning the intensity, persistence and limiting effects of these s ym p t o m s are not entirely credible prior to March 1, 2007." Tr. 28. Thus, the ALJ found th a t Plaintiff passed through the threshold of the "pain standard," but that her testimony as to her present pain, in September of 2007, was not fully credible as to the time period before M a rc h 1, 2007. Accordingly, the ALJ was required to "articulate specific reasons for q u e stio n in g the claimant's credibility" and those reasons must be supported by substantial e v id e n c e . T h e ALJ's reasons for his decision to discredit Plaintiff's subjective pain testimony 10 a s to the time preceding March 1, 2007, include: 1) the lack of objective evidence supporting P la in tif f 's testimony about the severity of Plaintiff's pain before March 1, 2007; 2) the in a b ility of Plaintiff's contemporaneous testimony about her pain in September of 2007 to ac co u n t for her pain prior to March 1, 2007; and 3) reliable expert opinion about Plaintiff's p a in and RFC prior to March 1, 2007, and the lack of definitive and reliable expert medical o p in io n supporting Plaintiff's claimed limitations prior to March 1, 2007. Tr. 26-28. S u b s ta n tia l evidence supports the ALJ's credibility determination. First, the objective m e d ic a l evidence does not establish that Plaintiff's pain was indeed disabling prior to March 1 , 2007. Plaintiff's reliance on Dr. Davidson's records from 2006, see Pl.'s Brief (Doc. #18) at 10, is unavailing because, as discussed above, while those records do document Plaintiff's c o m p la in ts and treatment for neuropathy and arthralgias, the records also indicate that P la in tif f 's pain was substantially alleviated with proper medications. See Tr. 216, 215, 179, 1 7 7 , 176, 174. Likewise, Plaintiff's reliance on Dr. Pirofsky's diagnosis, in May of 2007, o f spondylsosis and lumbar radiculopathy based on a MRI from March of 2005, is also u n a v a il in g . First, Plaintiff's claim that the ALJ "failed to consider" this evidence is in c o rre c t, as it is clear from the ALJ's opinion that he did consider it. Tr. 27. Moreover, the re c o rd s make clear that the pain Plaintiff experienced due to this condition was somewhat su cc essf u lly treated with physical therapy. Tr. 235, 233-34. Thus, it is clear that Plaintiff's su b jectiv e complaints about her pain, as pertains to the period prior to March 1, 2007, "were n o t entirely credible when compared with the objective medical evidence in the record." 11 G e o rg e v. Astrue, 2009 WL 1950266 at *2 (11th Cir. July 8, 2009). Finally, as discussed a b o v e , the record before the ALJ is devoid of reliable expert opinion evidence lending any c o rro b o ra tio n to Plaintiff's allegations of disabling pain prior to March 1, 2007.5 The only e x p e rt opinion touching upon this period is provided by Dr. Anderson, the testifying medical e x p e rt, and his opinion, based upon his review of all of the available medical evidence, was th a t Plaintiff "would be limited because of her surgery and surgical treatment with the breast to light work activities from her alleged onset date until March of '07." Tr. 278. A c c o rd in g ly, substantial evidence supports the ALJ's finding that Plaintiff's subjective a lle g a tio n s about her pain are less than wholly credible as pertains to the period preceding M a rc h 1, 2007. C. T h e ALJ's treatment of Plaintiff's obesity. P la in tif f claims that, "[w]hile the ALJ found [Plaintiff's] obesity to be a `severe' im p a irm e n t, he failed to comply with SSR 02-1p and Eleventh Circuit case law" in finding th e impairment not disabling. Pl.'s Brief (Doc. #18) at 11-12. Plaintiff appears to contend th a t her "morbid[] obes[ity]" operated to enhance her degenerative joint disease and fatigue re la te d to her chemotherapy treatments and therefore rendered her disabled from the alleged o n s e t date through March of 2007. Defendant maintains that the ALJ's treatment of P la in t if f ' s obesity complied with all applicable authorities. 5 The Court will address, infra, Dr. Davidson's letter opining about Plaintiff's 12 disability. In his opinion, the ALJ determined that Plaintiff is obese and that such condition is a severe impairment. Tr. 25. The ALJ clearly considered Plaintiff's obesity in describing h e r RFC. The ALJ limited Plaintiff to standing or walking for four to six hours in an eight h o u r day but only thirty minutes at a time, only occasional "bending, stooping, crawling, c lim b in g , crouching, kneeling, and balancing," and precluded her from "climbing la d d e rs /ro p e s, scaffolds." Tr. 26. Plaintiff points to no aspect of her designated RFC which, it is asserted, should be precluded by her obesity. Moreover, Plaintiff's contention that the A L J 's treatment of her RFC does not comply with "Eleventh Circuit case law" is curious, as s h e fails to cite to any decision by the Court of Appeals for the Eleventh Circuit. Finally, P la in tif f 's claim that the ALJ failed to follow SSR 02-1p is also unavailing. The numerous lim ita tio n s on Plaintiff's functional abilities which the ALJ incorporated into Plaintiff's RFC re f le c t the common exertional and postural functional limitations recognized by the Social S e c u rity Agency, and described in the cited Social Security Ruling, when the Agency e v a l u a te s obesity in assessing a claimant's RFC. See SSR 02-1p at 8. Given the weight o f available medical evidence, including the opinion of Dr. Anderson, and Plaintiff's failure to specify how her obesity would have precluded any part of the RFC attributed to her by the A L J for the relevant time period, Plaintiff's claim that the ALJ erred in his treatment of her o b e s ity is without merit. D. P la in t iff's request for remand based on new evidence. P la in tif f contends that this matter should be remanded, pursuant to sentence six of 42 13 U .S .C . 405(g), because she has presented new evidence which is noncumulative, material, re le v a n t, and probative in that "there is a reasonable probability that it would change the a d m in is tra tiv e result," and that there is "good cause" for her failure to submit the evidence a t the administrative level. Pl.'s Brief (Doc. #18) at 12-13. The "new" evidence cited in P lain tiff 's brief consists of a "letter dated November 22, 2005, from her treating oncologist, D r. Davidson," in which Dr. Davidson opined that, given Plaintiff's ongoing chemotherapy tre a tm e n ts and its effects, "it is reasonable that she is unable to work at present . . . ." Id. P lain tiff concedes that she presented this evidence to the Appeals Council after the ALJ's p a rtia lly unfavorable decision. Id. Indeed, it is evident that the letter was made part of the a d m in is tra tiv e record and considered by the Appeals Council. See Tr. 254 (letter); 6-8 (N o tic e of Appeals Council Action). Defendant asserts that "Plaintiff's request for remand is without merit because the evidence upon which she relies is cumulative, not material, and o p in e s on an issue reserved to the Commissioner." Def.'s Brief (Doc. #19) at 11. Plaintiff's request for remand is premised on a misunderstanding of sentence six of 405(g) and applicable case law. "Our settled precedents establish that a sentence six re m a n d is available when evidence not presented to the Commissioner at any stage of the a d m in is tra tiv e process requires further review." Ingram v. Comm. of Soc. Sec. Admin., 496 F .3 d 1253, 1267 (11th Cir. 2007) (emphasis added). Importantly, "[s]entence six allows the d is tric t court to remand to the Commissioner to consider previously unavailable evidence; it does not grant a district court the power to remand for reconsideration of evidence 14 p r e v i o u s l y considered by the Appeals Council." Id. at 1269. Evidence presented to the A p p e a ls Council, though not the ALJ, which is considered by the Commissioner and in c o rp o ra te d into the administrative record "can be the basis for only a sentence four remand, n o t a sentence six remand." Id. As the evidence cited by Plaintiff was presented to the A p p e a ls Council during administrative proceedings, she is not entitled to a sentence six re m a n d based on new evidence. P la in tif f does not allege that this matter should be remanded under sentence four of 405(g) because, purportedly, "the Appeals Council did not adequately consider the a d d itio n a l evidence." Bowen v. Heckler, 748 F.2d 629, 636 (11th Cir. 1984). See also H o ffm a n v. Astrue, 259 F. App'x 213, 220 (11th Cir. 2007). Nor does Plaintiff challenge the A p p ea ls Council's decision not to remand to the ALJ. Furthermore, and as a practical matter, it does not appear that Dr. Davidson's letter, had it been presented to the ALJ, would have ch an g ed the ALJ's decision. First, Dr. Davidson's opinion concerns a matter, Plaintiff's a lle g e d disability, that is within the exclusive purview of the Commissioner to determine. S e c o n d , Dr. Davidson's opinion that, as of November 2005, it was "reasonable" to conclude t h a t Plaintiff could not work does not appear based on an established history of treatment, a s the record is devoid of any treatment records of Dr. Davidson's prior to January of 2006. T h u s , the opinion is conclusory. Finally, and as discussed above, Dr. Davidson's treatment rec o rds, while evincing Plaintiff's neuropathy and arthralgias, also indicate that Plaintiff's c o n d i tio n improved within a few months of treatment with various medications. 15 A c c o rd in g ly, Dr. Davidson's opinion about Plaintiff's purported disability in November of 2 0 0 5 would not likely have changed the outcome had it been properly presented to the ALJ a n d is therefore insufficient to warrant a sentence four remand. Hoffman, 259 F. App'x at 220. VI. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 3rd day of December, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 16

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