Wallace v. Berryhill (CONSENT)

Filing 14

MEMORANDUM OPINION: It is, therefore, ORDERED that the decision of the Commissioner is AFFIRMED as further set out in the opinion. A separate judgment is entered herewith. Signed by Honorable Judge Terry F. Moorer on 1/8/2018. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
TOMEKA N. WALLACE,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 3:16-cv-859-TFM
[wo]

MEMORANDUM OPINION
Following administrative denial of her application for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C.§§ 401, et seq., and Supplemental Security Income
benefits under Title XVI of the Social Security Act, Tomeka N. Wallace (“Wallace” or
“Plaintiff”) received a requested hearing before an administrative law judge (“ALJ”) who
rendered an unfavorable decision.

When the Appeals Council rejected review, the ALJ’s

decision became the final decision of the Commissioner of Social Security (“Commissioner”).
See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Judicial review proceeds pursuant to
42 U.S.C. § 405(g), 42 U.S.C. § 1383(c)(3), and 28 U.S.C. § 636(c), and for reasons herein
explained, the Court AFFIRMS the Commissioner’s decision denying disability insurance
benefits and supplemental security income benefits.
I. NATURE OF THE CASE
Wallace seeks judicial review of the Commissioner of Social Security Administration’s
decision denying her application for disability insurance benefits and supplemental security
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W.
Colvin as the Defendant in this suit. No further action needs to be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Page 1 of 11

income benefits. 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. STANDARD OF REVIEW
Judicial review of the Commissioner’s decision to deny benefits is narrowly
circumscribed.

The court reviews a social security case solely to determine whether the

Commissioner’s decision is supported by substantial evidence and based upon proper legal
standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
Commissioner,” but rather “must defer to the Commissioner’s decision if it is 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 Winschel, 631 F.3d at
1178 (stating the court should not re-weigh the evidence).

This court must find the

Commissioner’s decision conclusive “if it is supported by substantial evidence and the correct
legal standards were applied.” Kelley v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999); see also
Kosloff v. Comm’r of Soc. Sec., 581 Fed. Appx. 811, 811 (11th Cir. 2015) (citing Kelley).
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. Winschel, 631 F.3d at
1178 (quoting Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)); Lewis v.
Callahan, 125 F.3d 1436, 1440 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
1427, 28 L.Ed.2d 842 (1971)). If the Commissioner’s decision is supported by substantial

Page 2 of 11

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); see also
Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (“even if the evidence
preponderates against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.”) (citation omitted). The district court must view the record
as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (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. Department
of Health and Human Services, 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).
III. 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.2 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

2

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
Page 3 of 11

assure that their income does not fall below the poverty line.3 However, 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 utilizes a five-step, burden-shifting analysis to determine when
claimants are disabled. 20 C.F.R. §§ 404.1520; Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004); O’Neal v. Comm’r of Soc. Sec., 614 Fed. Appx. 456, 2015 U.S. App. LEXIS 9640,
2015 WL 3605682 (11th Cir. June 10, 2015). The ALJ determines:
(1)

Whether the claimant is currently engaged in substantial gainful activity;

(2)

Whether the claimant has a severe impairment or combination of impairments;

(3)

Whether the impairment meets or exceeds one of the impairments in the listings;

3

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, 2100, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html
Page 4 of 11

(4)

Whether the claimant can perform past relevant work; and

(5)

Whether the claimant can perform other work in the national economy.

Winschel, 631 F.3d at 1178; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). When a
claimant is found disabled – or not – at an early step, the remaining steps are not considered.
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). This procedure is a fair and just way
for determining disability applications in conformity with the Social Security Act. See Bowen v.
Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v.
Campbell, 461 U.S. 458, 461, 103 S. Ct. 1952, 1954, 76 L.Ed.2d 66 (1983)) (The use of the
sequential evaluation process “contribute[s] to the uniformity and efficiency of disability
determinations”).
The burden of proof rests on the claimant through Step 4. See Ostborg v. Comm’r of Soc.
Sec., 610 Fed. Appx. 907, 915 (11th Cir. 2015); Phillips, 357 F.3d at 1237-39. A prima facie
case of qualifying disability exists when a claimant carries the Step 1 through Step 4 burden.
Only at the fifth step does the burden shift 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
Functioning Capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4). RFC is what the claimant is still
able to do despite the impairments, is based on all relevant medical and other evidence, and can
contain both exertional and nonexertional limitations. Phillips, 357 F.3d 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. In order
to do this, the ALJ can either use the Medical Vocational Guidelines4 (“grids”) or call a
vocational expert. Id. at 1239-40.
4

See 20 C.F.R. pt. 404 subpt. P, app. 2
Page 5 of 11

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 of
these factors 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. Otherwise, the ALJ may use a vocational expert. Id. A vocational expert is
an expert on the kinds of jobs an individual can perform based on her capacity and impairments.
Id. In order for a vocational expert’s testimony to constitute substantial evidence, the ALJ must
pose a hypothetical question which comprises all of the claimant’s impairments. Jones v. Apfel,
190 F.3d 1224, 1229 (11th Cir. 1999) (citing McSwain v. Bowen, 814 F.2d 617, 619-20 (11th
Cir. 1987)).
IV. BACKGROUND AND PROCEEDINGS
Wallace brought a disability claim because of migraines and seizures. (R.188).
Following initial administrative denial of her claim, Wallace petitioned for a hearing before an
administrative law judge (“ALJ”) (R. 98). Wallace and her attorney came before ALJ Walter V.
Lassiter, Jr., (“the ALJ”) for an evidentiary hearing on February 1, 2016. (R. 36-62). The ALJ
received direct testimony from Wallace and Marcia Schulman, a Vocational Expert (“VE”). The
remaining evidentiary record consisted of medical reports from treating sources and residual
functional capacity assessments completed by medical consultants who examined Wallace and
reviewed medical records upon request of Alabama Disability Determination Services.5 The
ALJ rendered an unfavorable verdict on June 24, 2016. (R. 14-30). On September 29, 2016, the

5

Andrea Cope, (R. 77). “A medical consultant is a person who is a member of a team that makes
disability determinations in a State agency, as explained in § 404.1615, or who is a member of a team that
makes disability determinations for us when we make disability determinations ourselves.” 20 C.F.R. §
404.1616(a).

Page 6 of 11

Appeals Council denied Wallace’s request for review (R. 1-4). This Social Security Appeal was
filed on October 31, 2016. See Doc. 1, Complaint.
V. ADMINISTRATIVE DECISION
Employing the five step process, the ALJ found that Wallace has not engaged in
substantial gainful activity since the alleged onset date (Step 1);6 has severe impairments (Step
2); the impairments, considered individually and in combination, do meet or equal in severity
any impairment set forth in the listings (Step 3); Wallace has past relevant work as a hostess and
parts inspector (Step 4); and a significant number of jobs are available in the national economy
which Wallace could perform with her residual functional capacity (Step 5). (R. 17-30).
The ALJ utilized Vocational Expert (VE) testimony which indicates Wallace can perform
work available in the national economy. (R. 17-30, 58-62).
VI. ISSUES
Wallace raises two issues on appeal:
(1)
(2)

The Commissioner’s decision should be reversed because the ALJ erred
by failing to properly and/or adequately reject all medical opinions of
record expressed by Ms. Wallace’s treating specialist.
The Commissioner’s decision should be reversed because the ALJ erred
by improperly acting as both Judge and medical doctor. Plaintiff’s brief at
3.
VII. DISCUSSION AND ANALYSIS

A.

The ALJ properly considered the opinions of the treating physician.
In a nutshell, Wallace claims the ALJ improperly discounted the opinion of her treating

physician, Dr. Wael Hamo. Dr. Hamo opines that Wallace has pain to such an extent that she
would have to abandon work tasks. (R. 909-912). Dr. Hamo concludes Wallace could lift 20
6

The ALJ found the following “severe” impairments: obesity, headaches of unknown etiology,
controlled with medication compliance, very questionable history of seizures activity, controlled with
medication compliance and status hemmorhoidectomy. (R. 19).
Page 7 of 11

pounds occasionally to 10 pounds frequently, sit 7 hours and stand or walk 1 hour in an 8 hour
work day, occasionally bend and/or stoop, rarely push and pull movements (arm and/ or leg
controls), climb (stairs or ladders) and balance, gross manipulation, (grasping, twisting, and
handling), fine manipulation (finger dexterity), reach (including overhead), environmental
problems, and operating motor vehicles, and never work with or around hazardous machinery (R.
909). Dr. Hamo concludes that Wallace is likely to be absent from work more than 4 days per
month. Dr. Hamo ascribes his prognosis to Wallace’s right moderate carpal tunnel syndrome,
left mild carpal tunnel syndrome, chronic neck pain, migraine and neck related headache and
seizure disorder. (R. 909). The limitations as set forth by Dr. Hamo, if accepted by the ALJ,
would render Wallace disabled under the Act and its attendant regulations. (R. 60-61).
An ALJ may properly reject a medical opinion from treating or examining
physicians under much the same circumstances. The regulations give preference to the opinion
of the treating physicians. 20 C.F.R. § 404.1527(d)(1)-(2); Winschel, 631 F.3d at 1179 (“Absent
good cause, an ALJ is to give the medical opinions of treating physicians “substantial or
considerable weight.”) (internal citations and quotations omitted). However, “the ALJ has the
discretion to weigh objective medical evidence and may choose to reject the opinion of a treating
physician while accepting the opinion of a consulting physician…[but] if he follows that course
of action, he must show ‘good cause’ for his decision.” Gholston v. Barnhart, 347 F.Supp.2d
1108, 1114 (M.D. Ala. 2003); see also Phillips, 357 F.3d at 1240 (quoting Lewis, 125 F.3d at
1440) (The opinion of a treating physician “must be given substantial or considerable weight
unless ‘good cause’ is shown to the contrary.”). “Good 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

Page 8 of 11

medical records.’” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d at 1241). In other
words, the Eleventh Circuit has found good cause for discounting a treating physician’s report
when the report “is not accompanied by objective medical evidence or is wholly conclusory.”
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir.1991)). Additionally, there is good cause
where the treating physicians’ opinions are “inconsistent with their own medical records[.]” Roth
v. Astrue, 249 Fed. Appx. 167, 168 (11th Cir. 2007) (citing Lewis, 125 F.3d at 1440).
The medical record and evidence before the ALJ was ample for the ALJ to disregard the
prognosis of Dr. Hamo. The record establishes that Wallace does suffer from carpal tunnel
syndrome but even Dr. Hamo concludes the condition is mild on the left and moderate on the
right. (R. 22, 300). The mere presence of a condition is not sufficient alone to establish
disability. Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005). After making his carpal
tunnel diagnosis, Dr. Hamo prescribed wrist splints and injections. At times, Wallace declined
injections and took them at other times. Wallace tolerated the procedure well and presumably
found improvement. In any event, no doctors recommended or suggested corrective surgery (R.
51). The ALJ, after review of the entire medical record was able to easily discern that Dr. Hamo,
other treating physicians and indeed Wallace chose a very conservative treatment regime. The
conservative nature of medical treatment is a legitimate basis to discount a disability claim.
Sheldon v. Astrue, 268 F. App’x 871, 872 (11th Cir. 2008). The court agrees with the ALJ in this
regard with respect to Wallace.
Next, the treatment notes are inconsistent with the prognosis of Dr. Hamo. Several
records vis a vis the extent to which carpal tunnel syndrome affects Wallace are inconsistent with
the prognosis of Dr. Hamo and consistent with the finding of the ALJ. Specifically, Wallace had

Page 9 of 11

good to full grip strength during several examinations. (R. 292, 295, 299, 352-354, 459, 626,
905). The court agrees with the ALJ that the medical record in this respect is inconsistent with a
disability finding.
Likewise, the treatment records vis a vis migraines are inconsistent with the prognosis of
Dr. Hamo and consistent with the findings of the ALJ. In a nutshell, the ALJ concluded and the
court agrees that to the extent Wallace has headaches, her condition is controlled by medication
compliance. (R 22, 275, 923, 925). A medical condition which can be controlled by medication
is not disabling. 20 C.F.R. § 930(b), See, Dawkins, v. Bowen, 848 F. 2d 1211, 1213 (11th Cir.
1988).
Further the treatment records regarding seizures are inconsistent with the prognosis of Dr.
Hamo and consistent with the findings of the ALJ. Dr. Hamo concludes that Wallace will likely
miss four days of work per month and suffer from decreased concentration. (R. 909-912).
Treatment notes indicate that outside brief seizure spells, Wallace had normal memory, attention,
and concentration. (R. 292, 295, 299, 626, 905). Wallace, by her own admission, said that other
than brief seizure spells she had no problems with memory or concentration. (R. 222). Of
particular note is that Wallace in her personal assessment of how her conditions affect her was
asked, “For how long can you pay attention”. Wallace’s written response was, “unlimited.” The
court agrees with the ALJ that to the extent that Wallace does suffer from seizures, compliance
with her medication regime will likely control her condition. (R. 25, 26, 29). Dr. Chivukula, her
prior treating physician found that Wallace was not compliant with her medication regime and
that compliance with her treatment protocol would control the seizures. (R. 29, 275). The
commissioner may deny benefits when a claimant fails to follow a course of treatment that could
restore the ability to work. Lucas v. Sullivan, 918 F. 2d 1567, 1571 (11th Cir. 1990).

Page 10 of 11

B. The ALJ did not act as medical doctor and judge.
Plaintiff argues the ALJ acted as both Judge and medical doctor when the ALJ
characterized Wallaces’ seizures and headaches as questionable. The court agrees with the ALJ
that it is questionable from the medical evidence before the ALJ whether and to what extent
Wallace may suffer from headaches and seizures. The ALJ did not reject the medical diagnosis
at step two (R. 19-22). The ALJ simply gave greater weight to the opinion of Dr. Chivukkula as
being more consistent with the other medical evidence. Ultimately, every ALJ in every disability
claim has to weigh medical evidence, opinions and testimony and then assign weight to whatever
evidence the ALJ finds persuasive.

As long as the decision is rational and supported by

substantial evidence, the court will affirm. Winschell v. Comm’r of Soc. Sec., 631 F. 3d 1176,
1179 (11th Cir. 2011). The court finds that the ALJ gave more than ample reason to discount the
prognosis of Dr. Hamo.

VIII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court
concludes that the ALJ’s non-disability determination and denial of benefits is supported by
substantial evidence and no legal error was committed. It is, therefore, ORDERED that the
decision of the Commissioner is AFFIRMED. A separate judgment is entered herewith.
DONE this 8th day of January, 2017.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

Page 11 of 11