Nguyen v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 7/6/12. (KGE, )

FILED
2012 Jul-06 PM 02:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NHIEN HUONG THI NGUYEN,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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2:11-CV-0714-LSC

MEMORANDUM OF OPINION
I.

Introduction
The Plaintiff, Nhien Huong Thi Nguyen, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying her
application for Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”). Ms. Nguyen timely pursued and exhausted her administrative
remedies and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3).
Ms. Nguyen was thirty-eight years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a tenth grade education. (Tr. at 15.) Her past
work experiences include employment as a nail technician, assembler, and food
processing line worker. (Id.) Ms. Nguyen claims that she became disabled on August
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15, 2007, due to neck pain and spasms, back, leg, and foot pain, diabetes, numbness in
the legs, difficulty using her right hand, kidney problems, high blood pressure, and
hearing loss. (Id.)
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The first step requires a determination of whether the claimant is “doing substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner next considers the effect of all of the physical and mental impairments
combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be disabled. Id. The decision depends on the medical evidence in the record.
See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments
are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Otherwise, the analysis continues to step three, which is a determination of whether
the claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1.

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20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration. Id.

If they do not, a

determination of the claimant’s residual functional capacity (“RFC”) will be made and
the analysis proceeds to the fourth step. 20 C.F.R. § 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s impairments
prevent him or her from returning to past relevant work.

20 C.F.R. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant’s RFC, as well as the claimant’s age,
education, and past work experience in order to determine if he or she can do other
work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Ms. Nguyen
meets the nondisability requirements for a period of disability and DIB and was insured
through the date of his decision. (Tr. at 13.) He further determined that Ms. Nguyen
has not engaged in substantial gainful activity since the alleged onset of her disability.
(Id. at 27.) According to the ALJ, Plaintiff’s impairments of diabetes mellitus type II,

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hypertension, hyperlipidemia, gastroesophageal reflux disease, polycystic kidney
disease, history of renal stones, neck pain, and possible diabetic neuropathy are
considered “severe” based on the requirements set forth in the regulations. (Id.)
However, he found that these impairments neither meet nor medically equal any of the
listed impairments in Appendix 1, Subpart P, Regulations No. 4. (Id.) The ALJ did
not find Ms. Nguyen’s allegations to be totally credible, and he determined that she
has the following residual functional capacity: sedentary work which allows for no
driving; occasional turning of her head or looking up or down; being able to sit or stand
at her option; a temperature controlled environment; no lower extremity foot controls;
no more than occasional bending, stooping, or climbing; and no work at unprotected
heights. (Id. at 28.)
According to the ALJ, Ms. Nguyen is unable to perform any of her past relevant
work. (Id.) The ALJ found that Ms. Nguyen has the residual functional capacity to
perform a significant range of sedentary work. (Id.) Even though Plaintiff cannot
perform the full range of sedentary work, the ALJ used Medical-Vocation Rule 201.25
as a guideline for finding that there are a significant number of jobs in the national
economy that she is capable of performing, considering her age, education, past work
experience, and residual function capacity. (Id.) The ALJ concluded his findings by

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stating that Plaintiff “was not under a ‘disability,’ as defined in the Social Security Act,
at any time through the date of this decision.” (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). The Court approaches the factual findings of the Commissioner
with deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater,
84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts, weigh evidence,
or substitute its judgment for that of the Commissioner. Id. “The substantial evidence
standard permits administrative decision makers to act with considerable latitude, and
‘the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial
evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J.,
dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed,
even if this Court finds that the evidence preponderates against the Commissioner’s

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decision, the Court must affirm if the decision is supported by substantial evidence.
Miles, 84 F.3d at 1400. No decision is automatic, however, for “despite this deferential
standard [for review of claims] it is imperative that the Court scrutinize the record in
its entirety to determine the reasonableness of the decision reached.” Bridges v. Bowen,
815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal
standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
1984).
III.

Discussion
Ms. Nguyen alleges that the ALJ’s decision should be reversed and remanded

for four reasons. First, Plaintiff contends that the ALJ improperly discarded the
opinion of Mr. McAdams, a physician’s assistant who has treated her since at least
2003. (Doc. 8 at 11.) Second, she contends that the ALJ improperly discarded the
opinion of Dr. Hakima, the DDS consultative medical examiner, and that the
discarding of both opinions was reversible error. (Id.) Third, Plaintiff contends that
the ALJ arbitrarily rejected uncontroverted medical evidence and substituted his own
opinion for that of treating and consultative sources. (Doc. 8 at 11). Fourth, Plaintiff
contends that the ALJ failed to fully and fairly develop the record by not ordering a
second consultative examination or obtaining other evidence. (Id.)

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A.

Treating Physician’s Assistant Opinion

Plaintiff contends that the ALJ improperly evaluated her treating physician
assistant’s opinion. (Doc. 8.) A physician assistant is not considered an acceptable
medical source; however, evidence from other sources may be used to show the
severity of the impairment and how it affects the claimant’s ability to work. 20 C.F.R.
§ 404.1513 (a),(d). The distinction between acceptable medical sources and other
sources is that only acceptable medical sources can provide medical opinions, establish
the existence of a medically determinable impairment, be considered a treating source,
or be entitled to controlling weight (if a treating source). See SSR 06-03p1. Opinions
from medical sources who are not “accepted medical sources” should be evaluated on
key issues, such as impairment severity and functional effects, along with other
relevant evidence in the file. Id. Weight is to be given to non-controlling opinions in
light of the following factors: relationship between the medical source and the
claimant, evidence the medical source presents to support the opinion, consistency of
the opinion with the record as a whole, and specialty of the medical source. 20 C.F.R.
§ 404.1527 (d); 20 C.F.R. § 416.927 (c). An ALJ’s rejection of non-treating source
opinion will be supported by substantial evidence when (1) the opinion’s source is not
Available at http://www.ssa.gov/OP_Home/rulings/di/01/SSR2006-03-di01.html.
1

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considered an “acceptable source” capable of establishing the existence of an
impairment, and (2) the opinion is inconsistent with other treatment notes. Crawford
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) (citing 20 C.F.R. §§
404.1513(a), 416.913(a)).
Plaintiff claims that Mr. McAdams’s opinion should have been given greater
weight because the records indicate that he has been her treating source for much of
the time since 2001. (Doc 8 at 11.) Mr. McAdams is a physician assistant, not an
“accepted medical source,” and therefore his opinion has no controlling weight.
However, his opinion is to be considered in light of the factors stated above to
determine key issues. The ALJ gave little weight to Mr. McAdams’s opinions
regarding Plaintiff’s level of pain and limitations after determining that his opinions are
not consistent with Plaintiff’s treating medical records. (Tr. at 13.)
Mr. McAdams completed a physical capacities evaluation for Plaintiff in April
of 2008 and again in June of 2009. (Tr. at 375, 420.) The 2008 evaluation states that
Plaintiff can lift and carry ten pounds occasionally or less frequently, gives no opinion
on the number of sitting and standing hours of which the Plaintiff is capable of
performing, and states Plaintiff can never perform gross or fine manipulation. (Tr. at
374-75.) The 2009 evaluation found that Plaintiff can lift or carry five pounds

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occasionally or less, can sit and stand each for one hour per day, and can occasionally
perform gross or fine manipulation. (Tr. at 420.) Mr. McAdams’s 2008 clinical
assessment of fatigue or weakness states Plaintiff’s fatigue or weakness “is present to
such an extent as to negatively affect adequate performance of daily activities or work”
and that physical activity such as walking, standing, bending, stooping or moving of
extremities will “greatly increase fatigue/weakness and to such a degree as to cause
total abandonment of tasks.” (Tr. at 379.) The 2008 assessment is inconsistent with
the 2009 assessment which states that Plaintiff’s fatigue or weakness is present, but
does not prevent functioning in everyday activities or work. It also stated that physical
activity such as the type listed above will cause some increase in fatigue or weakness,
but not to such an extent as to prevent adequate functioning at such tasks. (Tr. at 423.)
Mr. McAdams’s opinion, as claimed by the ALJ, is also inconsistent with his
own records. While his evaluation found that Plaintiff experiences a level of pain to the
extent as to be distracting to adequate performance of daily activities or work (Tr. at
376, 421), his own records from 2007 through 2009 do not show that any such pain was
reported. (Tr. at 426, 440, 444.) Sporadic pain was reported in Plaintiff’s right foot and
leg in March, but no pain was reported in the following month. (Tr. at 443, 444, 449.)
In August of 2008, only left side pain at a level 4 was reported. (Tr. at 435.) In

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December 2008, abdominal pain was reported, but Mr. McAdams’s record indicates
that pain was likely due to kidney stones, an acute—not chronic—condition. (Tr. at
430.) Plaintiff alleges disabling pain in the neck. (Tr. at 22.) However, there is no
recorded neck pain before or after December 2008, and all examinations before and
after December 2008 found the neck supple. (Tr. at 398.) Mr. McAdams reported
Plaintiff’s cervical spine to be normal in December 2008 (Tr. at 398), and no pain at
all was reported in March of 2009. (Tr. at 426.) The record does not indicate that
chronic pain medication, physical therapy, steroids, or reference to a specialist was
prescribed for the Plaintiff, and therefore does not indicate debilitating pain was
present. In fact, Plaintiff reported improvement in pain in October of 2008. (Tr. at
415.) There is also nothing in the record to support Mr. McAdams’s opinion of
Plaintiff’s fatigue or weakness, nor was there a physical examination given. To the
contrary, Mr. McAdams’s assessment indicates that Plaintiff had good range of motion
in extremities and grip strength of 4/5 (Tr. at 449, 430.) While Mr. McAdams’s
opinion indicates that side effects of Plaintiff’s medication would affect her ability to
work, the record does not indicate any such side effects.
Plaintiff’s only argument for giving greater weight to Mr. McAdams’s opinion
is that he has been treating the Plaintiff since 2001. Given that his opinion does not

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receive controlling weight, as he is not a physician, and given the inconsistencies
between Mr. McAdams’s evaluations and his own records, the ALJ had good cause to
give little weight to his assessment of the plaintiff’s condition.
B. Examining Physician’s Opinion
Plaintiff’s second claim is that the ALJ improperly discounted the opinion of its
own DDS consultative medical examiner. (Doc. 8 at 11.) Although Dr. Hakima’s
opinion is to be given some weight, she is an examining physician and not a treating
physician, and therefore her opinion is not entitled to the substantial weight afforded
a treating physician. McNamee v. SSA, 164 Fed. Appx. 912, 919 (11th Cir. 2006). As
stated above, the regulations require the ALJ to apply several factors when determining
the weight to be given each opinion. 20 C.F.R. § 404.1527(c). The Commissioner’s
decision must be reviewed to “determine if it is supported by substantial evidence and
based on proper legal standards.” 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, we must affirm if the decision reached is supported by substantial evidence.”
Id. at 1158-59.
Dr. Hakima did not give an opinion regarding the Plaintiff’s physical limitations
but gave diagnoses, some of which the ALJ found were not supported by the record as

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a whole and which the ALJ specifically noted in the decision. (Tr. at 23-25.) The ALJ
determined that Dr. Hakima’s diagnosis of suspected cardiomyopathy was not
supported by the Plaintiff’s medical records because there was no indication of any
cardiovascular impairment other than hypertension. (Tr. at 425-49.) In addition, tests
and examinations made in 2008 and 2009 consisting of a chest x-ray, a myocardial
perfusion imaging scan, and an exercise stress test indicate normal function. (Tr. at
394-97.) Dr. Hakima also issued a diagnosis of cervical degenerative disc disease;
however, the records indicate that the Plaintiff only complained of neck pain once in
2008, and a cervical spine x-ray and cervical compression test both taken in 2008 came
back normal. (Tr. at 398, 430.) Additionally, several examinations in 2008 and 2009
indicated the neck was supple. (Tr. 426, 430, 435, 440, 449.) The examinations failed
to indicate any masses in the plaintiff’s neck, thus giving no support to Dr. Hakima’s
diagnosis of a goiter. (Id.)
C. Arbitrary Disregard for Uncontroverted Medical Evidence
Regardless of whether or not the ALJ accepted Dr. Hakima’s diagnosis, it is the
Commissioner’s responsibility—not the medical professional’s—to determine
whether the Plaintiff’s impairments qualify as a disability under 20 C.F.R. pt. 404,
Subpart P, Appendix 1. 20 C.F.R. § 404.1527(e). “The mere existence of impairments

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does not reveal the extent to which they limit the Plaintiff’s ability to work or
undermine the ALJ’s determination in that regard.” Moore v. Barnhart, 405 F.3d 1208,
1213 n.6 (11th Cir. 2005). Plaintiff accuses the ALJ of substituting his own opinion for
those of the consultative examiner and other treating sources. (Doc. 8 at 13.) The
ALJ’s decision states that while the record does indicate that Plaintiff’s conditions are
capable of producing some pain and other limitations, the evidence as a whole does not
reasonably support a conclusion of disabling pain and limitations within the meaning
of the Social Security Act. See Arnold v. Heckler, 732 F.2d 881, 884 (11th Cir. 1984) (“It
was not inconsistent for the ALJ to find that [Plaintiff] suffers pain in fact and yet is not
so severely impacted as to meet the stringent disability imposed by the Act.”). The
ALJ’s decision does not contradict any of Dr. Hakima’s findings because she did not
assess the Plaintiff’s work limitations, but only gave diagnoses. (Tr. at 320-23.)
Moreover, the ALJ’s decision indicates that he does take Dr. Hakima’s diagnoses into
account when he concludes that Plaintiff is able to do sedentary work including
occasional turning of the head or looking up and down and no lower extremity foot
controls. (Tr. at 26.) For the same reasons stated above, the ALJ’s decision did not
arbitrarily reject uncontroverted medical evidence and for a “hunch or intuition.”
(Doc. 8 at 13.) Instead, the ALJ supports his conclusions with specific findings from

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the record. (Tr. 12-29.) Therefore, the ALJ’s evaluation of Dr. Hakima’s diagnosis is
supported by substantial evidence.
D. Failure to Fully Develop the Record
Plaintiff’s fourth claim is that the ALJ failed in his duty to fully develop the
record by not sending Plaintiff to another examiner or obtaining more evidence to
support his opinion, which, Plaintiff argues, is contrary to the opinions of a consultative
examiner and a long-term treating physician assistant. (Doc. 8 at 12.) “It is well
established that the ALJ has a basic duty to develop a full and fair record.” Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). However, “the Plaintiff bears the
burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim.” Ellison, 355 F.3d at 1276; see also 20
C.F.R. §§ 404.1512(a), (c). There must be a showing of prejudice in order to trigger
remand for reconsideration; the record must reveal “evidentiary gaps which result in
unfairness or clear prejudice.” Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir. 1982).
Plaintiff claims that the ALJ did not obtain enough evidence to make an informed
decision because he “did not find any [evidence] from any examining source that he
wanted to except.” (Doc. 8 at 13.) Plaintiff offers no evidence of being prejudiced in
the development of the record, no support for an argument of an evidentiary gap in the

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evidence, and no reason why a second consultative examination would further develop
the record or change the ALJ’s decision. (Id.) Plaintiff argues that the ALJ did not
believe what the examining physician said, and therefore should have obtained
evidence from another source to support his position. (Id.) However, for the reasons
discussed above, the ALJ does not disregard the examining physician’s opinion but
instead uses it to conclude that the Plaintiff’s claim as disabled under the Social
Security Act is not supported by the record. Moreover, the ALJ need not order an
additional consultative examination where the record was sufficient for a decision.
Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999).
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Nguyen’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 6th day of July 2012.

L. Scott Coogler
United States District Judge
167458

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