Mitchell v. Astrue

Filing 14

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED as further set out in the opinion and order. A separate judgment is entered herewith. Signed by Honorable Judge Terry F. Moorer on 12/16/2011. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MIRANDA MITCHELL,
Plaintiff,
v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CASE NO.: 2:10-cv-732-TFM
[wo]

MEMORANDUM OPINION AND ORDER
Miranda Johnson Mitchell1 (“Plaintiff” or “Mitchell” or “Johnson”) filed an
application for Social Security disability insurance benefits and supplemental security income
on September 11, 2007, for a period of disability which allegedly began January 1, 2006.
(Tr. 46, 120-128). Plaintiff’s application was denied on November 2, 2007. (Tr. 48). Upon
timely request by the Plaintiff on December 5, 2007 (Tr. 54), Mitchell appeared before an
Administrative Law Judge (“ALJ”) on June 16, 2008. (Tr. 24-45). The ALJ issued an
unfavorable decision on January 28, 2010. (Tr. 7-23). Once the Appeals Council rejected
review on July 28, 2010 (Tr. 1-5) the ALJ’s decision became the final decision of the

1

Plaintiff appears to have changed her name from Johnson to Mitchell during the course
of the medical treatment. The Court has considered references to either Miranda Johnson or that
of Miranda Mitchell as the same purposes of this opinion.
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Commissioner of Social Security (“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The Court has jurisdiction over this lawsuit pursuant to 42 U.S.C. §
405(g) and the parties consent to the undersigned rendering a final judgment in this lawsuit
pursuant to 28 U.S.C. § 636 (c)(1) and M.D. Ala. LR 73.1. For the reasons that follow, the
Court AFFIRMS the Commissioner’s decision.
I. NATURE OF THE CASE
Mitchell seeks judicial review of the Commissioner’s decision denying her application
for disability insurance benefits and supplemental security income. United States District
Courts may conduct limited review of such decisions to determine whether they comply with
applicable law and are supported by substantial evidence. 42 U.S.C. § 405 (2006). The
Court may affirm, reverse and remand with instructions, or reverse and render a judgment.
Id.
II. BACKGROUND
Mitchell was born on January 14, 1979 and was 27 years old at the time of the alleged
onset of disability. (Tr. 28). Mitchell dropped out of school in the sixth grade but obtained
a GED. Id. Mitchell’s previous employment was primarily that of a “detailer or cleaner,”
specifically that of detailing yachts and yacht maintenance, which she performed from 1996
until 2005. (Tr. 28-30).

2

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 Security.

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“At the hearing [Mitchell] stated that [she] was 30 years old, became disabled on
January 1, 2006, has dysautonomia, Stage 3 cervical dysplasia carcinoma, syncope, and
cardiomyopathy.” (Tr. 13). All medical records presented by Mitchell show an expansive
medical history beginning on June 6, 2005, at Palms West Hospital for torn rotator cuffs in
both shoulders and lasting until March 3, 2010, when Mitchell saw Dr. Hassan Kesserwani,
M.D. at the Comprehensive Neurodiagnostic Center for physical therapy for pain in left
shoulder. (Tr. 174-286).
Dr. Kesserwani treated Mitchell from August 16, 2007, until March 3, 2010. (Tr. 207211, 233-242, 285-286). Mitchell was diagnosed with Hereditary Neuralgic Amyotrophy
(HNA) by Dr. Kesserwani on August 16, 2007. (Tr. 207-209). Specifically, Dr. Kesserwani
stated:
Mrs. Johnson has a rare case of HNA, which is hereditary neuralgic
amyotrothy. This is a recurrent brachial plexitis. HNA can be very painful
and it can be triggered in the puerperium following strenous activity or even
after a flu like illness. Familial cases have been described to be either
autosomal dominant or even X-linked recessive. The other possibility is
HNPP or hereditary neuropathy with liability to pressure palsy. HNPP is due
to deletion of PMP-22 gene on chromosome 17.

(Tr. 208). The latter visits to Dr. Kesserwani focused primarily on the treatment of
Mitchell’s dizziness and anxiety. (Tr. 240 - 242, 266, 285 - 286).
The record shows that Mitchell was seen by multiple doctors over a period of years
for an assortment of medical issues. Mitchell saw Jesse C. Haggerty, III, M.D., Ph.D., for
at least ten visits from July 7, 2007, until September 16, 2009. (Tr. 251 - 257, 278). The
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records show that it was known that Mitchell “has hereditary neuralgic amyotrophy” the
primary focus of the treatment was on dysautonomia and anxiety with prescriptions for
Xanax. Id. Mitchell was treated three times at Hearts South, PC, from May 6, 2008, until
July 16, 2009. (Tr. 259 - 264). The records show a history of hereditary brachial plexitis and
dysautonomia but focus on alleged heart issues wherein the doctors record “some very vague
chest discomfort on occasion.” Id. Mitchell was treated by Dr. Kenneth Farmer, M.D. at the
Women’s Medical Center, P.C., from September 29, 2008, through June 24, 2009. (Tr. 268 276). Other medical records provided by Mitchell include hospital records (Tr. 240 - 249)
wherein Mitchell was treated for prenatal and postpartum evaluations by Dr. Stephen C.
Coleman, D.O., and associates from January 4, 2007 through September 5, 2007. (Tr. 212 223).
Plaintiff was seen by Dr. H. Gordon Mitchell, M.D., as part of a Social Security
Administrative referral evaluation and for a Physical Residual Functional Capacity
Assessment on November 2, 2007, just prior to being seen by Dr. Kesserwani. (Tr. 224 231). Dr. Mitchell noted few limitations to the Plaintiff’s ability to work, and that the
claimant was only partially credible in her allegations that she is limited due to her physical
problems. Id.
III. STANDARD OF REVIEW
The Court reviews a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and based upon proper legal standards. Lewis

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v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The Court “may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner,” but
rather it “must defer to the Commissioner’s decision if it supported by substantial evidence.”
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)); see also Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995) (stating the court should not re-weigh the evidence). The Court must find the
Commissioner’s decision conclusive “if it is supported by substantial evidence and the
correct legal standards were applied.” Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999)
(citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997)).
Substantial evidence is more than a scintilla – i.e., the evidence must do more than
merely create a suspicion of the existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion.

Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) and MacGregor v. Bowen, 785 F.2d 1050,
1053 (11th Cir. 1986)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson, 402 U.S. at 401, 91 S.Ct. at 1427).
If the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the court would have reached a contrary result as finder of fact, and even
if the court finds that the evidence preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The district court must view

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the record as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d 129,131 (11th Cir.
1986)).
The district court will reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Serv., 21 F.3d 1064, 1066 (11th Cir. 1994) (internal citations
omitted). There is no presumption that the Secretary’s conclusions of law are valid. Id.;
Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
IV. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.3 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and
distinct program. SSI is a general public assistance measure providing an additional resource
to the aged, blind, and disabled to assure that their income does not fall below the poverty
line.4 Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§

3

DIB is authorized by Title II of the Social Security Act, and is funded by Social Security
taxes. See Social Security Administration, Social Security Handbook, § 136.1, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html
4

SSI benefits are authorized by Title XVI of the Social Security Act and are funded by
general tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2,

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1382(a), 1382c(a)(3)(A)-(C). Despite the fact they are separate programs, the law and
regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for
DIB and SSI are treated identically for the purpose of determining whether a claimant is
disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986). Applicants under
DIB and SSI must provide “disability” within the meaning of the Social Security Act which
defines disability in virtually identical language for both programs. See 42 U.S.C. §§ 423(d),
1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(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), 1382c(a)(3)(A). 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. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520,
416.920 (2010).
(1)

Is the person presently unemployed?

2100, available at http://www.ssa.gov/OP_Home/handbook/handbook.html

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(2)

Is the person’s impairment(s) severe?

(3)

Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?5

(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 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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying
disability once they meet 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

5

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

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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 Guidelines6 (“grids”) or hear
testimony from 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 to an
individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of
“Disabled” or “Not Disabled.” Id.
V. STATEMENT OF THE ISSUES
Plaintiff alleges the ALJ made three errors. (Pl. Br. at 1). First, Plaintiff argues “the
ALJ erred by substituting his judgment for that of a medical professional.” Id. Second,
Plaintiff argues “the ALJ erred in failing to recontact the treating neurologist.” Id. Finally,
Plaintiff argues “the ALJ erred by failing to properly evaluate Ms. Mitchell’s Brachial
Plexopathy.” Id. The issues and arguments Mitchell raises turn upon this Court’s ultimate
inquiry of whether the Commissioner’s disability decision is supported by the proper legal
standards and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622, 624-25 (11th
Cir. 1987).
VI. DISCUSSION AND ANALYSIS
A.

The ALJ did not substitute his own judgment for that of a medical
6

See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in
SSI cases).

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professional and established “good cause” for not giving one of the treating
physicians substantial or considerable weight pursuant to the Eleventh
Circuit standard
The Court finds that the ALJ did not substitute his own judgment for that of a medical
professional, but rather the ALJ did not give “substantial or considerable weight” to the
opinion of one of the treating physicians. Phillips, 357 F.3d at 1240. Furthermore, this Court
finds that the ALJ established the “good cause” required for not applying the substantial or
considerable weight standard, as required by the Eleventh Circuit precedent. Id.
Mitchell cites several cases in which the Eleventh Circuit finds it is improper for an
ALJ to “arbitrarily substitute his own hunch or intuition for the diagnosis of a medical
professional.” (Pl. Br. 9) (quoting Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir.
1992). After thorough review, the Court notes that the ALJ did conduct a comparative
analysis of all the medical evidence and found “[f]or these reasons, the medical opinion of
Dr. Kesserwain is given very little weight.” (Tr. 19). This is not a substitution of the ALJ’s
own hunch or intuition, as purported by Mitchell, but is rather a case wherein the ALJ does
not give substantial or considerable weight to the opinion of one of the treating physicians
after establishing good cause for discarding the opinion.
The Eleventh Circuit has established that the opinion of a treating physician “‘must
be given substantial or considerable weight unless ‘good cause’ is shown to the contrary’”
with the definition of good cause being:

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when: (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.
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003) (citing Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997)). In Lewis, the Eleventh Circuit also established that the
ALJ must clearly articulate the reasons for giving less weight to the opinion of a treating
physician and that the failure to do so constitutes reversible error. 125 F.3d at 1440.
Furthermore, a treating physician’s opinion will be given controlling weight if it is well
supported by medically acceptable clinical and diagnostic techniques and is consistent with
other evidence in the record. Holley v. Chater, 931 F.Supp. 840, 849 (S.D. Fla. 1996) (citing
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)).
However, the simple fact that a treating physician’s opinion is included in the
evidence does not require the ALJ to follow it but rather the opinion may be given less
weight or dismissed entirely. Washington v. Barnhart, 175 F. Supp. 2d 1340, 1346 (M.D.
Ala. 2001) (finding that the ALJ properly considered the treating physician’s medical
opinions based on the objective medical evidence in the record as a whole it was “entirely
reasonable” when the treating physicians records and notes were inconsistent). When an ALJ
chooses to reject the opinions of the claimant’s treating physicians there needs to be
sufficient detail set forth by the ALJ for the court to conduct a meaningful review. Pettaway
v. Astrue, Case No. 06-00880-WS-B, 2008 WL 1836738, at *14 (S.D. Ala. Apr. 21, 2008)
(finding that the ALJ erred in rejecting the opinions of a treating physician because

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insufficient detail was set for by the ALJ for the reviewing court to be able to conduct any
kind of meaningful analysis). “‘[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. Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004); see also Lucas v.
Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990) (noting that the “mere fact that [the ALJ]
rejected their opinions is not in itself grounds for reversal”).
Discretion is given to the ALJ because the Eleventh Circuit stated “there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision so long
as [his] decision . . . is not a broad rejection which is ‘not enough to enable [a court] to
conclude that the ALJ considered [a claimant’s] medical condition as a whole.’” Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quoting Foote, 67 F.3d at 1561). In
Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983), the Eleventh Circuit held “this
circuit does not require an explicit finding as to credibility,” but will accept the implications
which are obvious to the reviewing court. It is the duty of the ALJ to develop a full and fair
record. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). A full and fair record
enables the reviewing court “to determine whether the ultimate decision on the merits is
rational and supported by substantial evidence.” Welch v. Bowen, 854 F.2d 436, 440 (11th
Cir.1988) (internal quotations and citations omitted). This Court will reverse when the ALJ
has failed to “provide the reviewing court with sufficient reasoning for determining that the

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proper legal analysis has been conducted.” Keeton v. Dep't of Health and Human Servs., 21
F.3d 1064, 1066 (11th Cir. 1994).
The burden of proving disability rests on the claimant, and the claimant is responsible
for producing evidence that supports her claim and allows both the ALJ and the
Commissioner to reach the proper conclusion. 20 C.F.R. § 416.912(a). The Court has
reviewed the record in its entirety and finds that the ALJ did not err in the rejection of the
opinion of the treating physicians, Dr. Kesserwani, and that the record was developed
sufficiently for this Court to determine that the ultimate decision by the ALJ is rational and
supported by substantial evidence. The ALJ considered the lengthy medical history of
Mitchell and provided a thorough recitation of the basic medical treatments Mitchell had over
a three year period. (Tr. 13 - 19). The ALJ considered the medical evidence of the multiple
treating physicians, in that there are at least two medical doctors who saw Mitchell for period
of time greater than ten months.7 Id.
From all of the evidence the ALJ saw several conflicts within the medical records;
specifically the ALJ states “[i]t would appear that even though Dr. Kesserwani noted the
claimant to be permanently disabled in 2007, he noted she was doing much better, not taking
any medications, appearing healthy, and that her most serious problem was anxiety in 2009.”
(Tr. 18). The ALJ also noted the conflict in different treating medical opinions in that “[j]ust

7

Dr. Hassan Kesserwani beginning in November 2007 through July 2009, and Dr.
Jesse Haggerty from September 2008 through July 2009.
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prior to Dr. Kesserwani’s November 7, 2007 opinion, on September 5, 2007, the claimant
reported to Dr. Coleman that she felt well.” (Tr. 19). In addition to Dr. Coleman’s medical
records, Plaintiff was seen by Dr. Mitchell on November 2, 2007 wherein the ALJ noted that
Plaintiff was “only partially credible in her allegations that she is limited due to her physical
problems.” (Tr. 15). Furthermore, the ALJ notes that pursuant to all of the medical records
taken as a whole “the shoulder problem seems to have improved since mid-2007, as her more
recent symptoms appear to relate to occasional fainting.” (Tr. 18). In regards to the HNA
the ALJ states “[m]ost recent medical records indicate they are monitoring her condition,
which appears to be stable” and that “[n]o medications or further testing seems to be
indicated.” Id.
From these contradictions the ALJ concluded “the medical opinions of Dr. Mitchell
are given considerable weight in that they are consistent and not contraindicated by the
medical evidence of record.” Id. There is no evidence that the ALJ used his own hunch or
intuition in place of a diagnosis of a treating physician, rather the ALJ simply gave more
weight to a medical opinion that found Mitchell “only partially credible in her allegations that
she is limited due to her physical problems.” (Tr. 15). The Court finds that at no time did
the ALJ substitute his own judgment for that of a medical professional as alleged by Mitchell
but rather, in accordance with Eleventh Circuit precedent, gave greater weight to medical
evidence that supported a finding of non-disability for the Plaintiff.

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B.

The ALJ was under no duty to recontact the treating physician.

Mitchell argues that the ALJ erred in failing to recontact the treating neurologist. (Pl.
Br. 12). Plaintiff cites Johnson v. Barnhart, 138 Fed. Appx 266, 270 (11th Cir. 2005), which
holds that “[i]f, after weighing the evidence, the Commissioner cannot reach a determination,
then [he] will seek additional information or recontact the physicians.” Id. (citing 20 C.F.R.
§ 404.1527(c)). The Court finds that the Commissioner was able to reach a determination
which is supported by substantial evidence in the record and was therefore under no
obligation or duty to recontact the treating physician.
The Eleventh Circuit holds that an ALJ does not have to recontact a treating physician
if there is no need for additional information or clarification. Osborn v. Barnhart, 194 Fed.
Appx 654, 668 (11th Cir. 2006) (finding that substantial evidence supported the ALJ’s
determination that the claimant was not disabled and that there was no need for additional
information or clarification and therefore no duty to recontact the treating physician).
Additional contact with the treating physician is only necessary where the basis of the
opinion cannot be ascertained. Shaw v. Astrue, 392 Fed. Appx 684, 688 (11th Cir. 2010)
(The ALJ did not err and was found to have made the decision on sufficient evidence when
the doctor did not adequately support his position and was contradicted by other findings).
The duty to recontact arises when there is not substantial evidence supporting the ALJ’s
determination and if the ALJ was not in possession of all medical records or that the
information therein was inadequate to enable the ALJ to determine that the Plaintiff is or is
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not disabled. Couch v. Astrue, 267 Fed. Appx. 853, 855 (11th Cir. 2008) (finding that the
progress notes were sufficient in conjunction with the rest of the evidence to support the
ALJ’s decision to not give controlling weight to the medical opinion of the treating
physician).
The ALJ carefully considered the entire record by reviewing all medical evidence
presented from prior to the purported onset date until 2009, a period of time of more than
three years. (Tr. 13-19). Mitchell was seen, examined, or treated by multiple medical care
providers during that time period and every significant finding was taken into account by the
ALJ. Id. After consideration of the ALJ’s opinion in its entirety the Court finds that the
determination made by the ALJ is supported by substantial evidence and that the information
contained in the medical evidence was adequate to reach the conclusion that Mitchell is not
disabled. As there is substantial evidence to support the ALJ’s opinion, there is no evidence
of any need for clarification or additional information on the part of the ALJ. The Court
finds that the basis of the opinion is easily ascertained, thereby creating no duty on the ALJ
to recontact the treating physician.
C.

The ALJ properly evaluated Plaintiff’s Brachial Plexopathy.

Mitchell argues that the ALJ erred at step 2 of the sequential evaluation process,
specifically that the ALJ failed to mention Mitchell’s brachial plexopathy, or “possibly
combining it with the HNA diagnosis.” (Pl. Br. 14).

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Mitchell provides a definition of the brachial plexopathy in her brief from the U.S.
National Library of Medicine web page. (Pl. Br. 15). However, the Court need not look so
far afield of the evidence as that to find support for the ALJ’s decision. Mitchell herself gave
to the Administration a description of her illnesses, injuries, or conditions and how they
affect her in her Disability Report - Adult - Form SSA-3368. (Tr. 141 - 51). In section two
when asked what are the illnesses, injuries, or conditions that limit her ability to work
Mitchell said:
hereditary neuralgic amytrophy, severe ongoing bilateral shoulder pain,
bilateral shoulder paralesis Hereditary neuralgic amyotrophy, is a rare
syndrome mainly affecting the lower motor neurons of the brachial plexus.
(Tr. 142) (emphasis added). It is reasonable for the ALJ to conclude that the brachial plexus
was part of the overall diagnosis of HNA based on Mitchell’s own response. Id. Throughout
the medical records treatment for pain, decreased movement, or decreased sensation in the
arm(s) and shoulder(s) are noted by the ALJ. (Tr. 13 - 19). The ALJ notes that in the
original diagnosis Dr. Kesserwani states that Mitchell’s HNA “is a recurrent brachial
plexitis.” (Tr. 14). The record shows that on August 21 and 22, 2007 Mitchell was seen at
Dale Medical Center for evaluation, diagnosis and treatment of braxial plexopathy, for which
the only prescription given was a shoulder sling. (Tr. 15). The ALJ noted that while
Mitchell was being treated by Dr. Kesserwani it was for “ongoing evaluation and treatment
of hereditary neuralgic amyotrophy and brachial plexus in her left shoulder and arm.” Id.
It is clear from the record that the ALJ considered all treatments for Mitchell, in combination
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and individually. The treatment of one diagnosis appears to have been incorporated and
included in the treatment of the other, if they are two distinct diagnoses. (Tr. 13 - 19).
Assuming, for the purposes of this opinion only, that they are in fact distinct, the
record of the ALJ shows that he considered both diagnoses. Id. Should there have been
clearer medical evidence that could have been presented by Mitchell to distinguish the two
diagnoses the ALJ’s failure to consider is harmless error because substantial evidence
supports the ALJ’s determination. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).
“[W]hen an incorrect application of the regulations results in harmless error because the
correct application would not contradict the ALJ’s ultimate findings, the ALJ’s decision will
stand.” Wright v. Barnhart, 153 Fed. Appx 678, 684 (11th Cir. 2005) (citing Diorio, 721
F.2d 728); see also Caldwell v. Barnhart, 261 Fed. Appx 188, 191 (11th Cir. 2008) (holding
that the ALJ’s failure to discuss the weight of a physician’s findings was harmless error
because the physician’s findings did not contradict the ALJ’s opinions). The Court finds that
even if it were to assume that the ALJ did not correctly hold the two diagnoses separate and
apart there was substantial evidence to support the ALJ’s finding and would constitute a
harmless error.
VII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the
Court concludes that the ALJ’s non-disability determination is supported by substantial
evidence and proper application of the law. It is, therefore, ORDERED that the decision of
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the Commissioner is AFFIRMED. A separate judgment is entered herewith.
DONE this 16th day of December, 2011.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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