Sanders v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/28/2014. (PSM)

FILED
2014 Jul-28 AM 11:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

KIMBERLY R. SANDERS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
2:12-cv-3522-AKK

MEMORANDUM OPINION
Plaintiff Kimberly R. Sanders (“Sanders”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the
final adverse decision of the Commissioner of the Social Security Administration
(“SSA”). This court finds that the Administrative Law Judge’s (“ALJ”) decision - which
has become the decision of the Commissioner - is supported by substantial evidence.
Therefore, for the reasons elaborated herein, the court will affirm the decision denying
benefits.
I. Procedural History
Sanders, whose past relevant experience includes work as a cleaner and laundry
worker, filed an application for Title II disability insurance benefits and Title XVI
Supplemental Security Income on October 26, 2009, alleging a disability onset date of
June 10, 2009, due to asthma, chronic vascular headaches, fibromyalgia, irritable bowel

syndrome, and foot pain. (R. 17, 24, 149). After the SSA denied Sanders’ claim, she
requested a hearing before an ALJ. (R. 82-83). The ALJ subsequently denied Sanders’
claim, (R. 14-26), which became the final decision of the Commissioner when the
Appeals Council refused to grant review. (R. 1-6). Sanders then filed this action for
judicial review pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, See 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal
standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the
Commissioner’s “factual findings are conclusive if supported by ‘substantial evidence.’”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not
reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if the
decision is “reasonable and supported by substantial evidence.” See id. (citing
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Substantial evidence
falls somewhere between a scintilla and a preponderance of evidence; “[i]t is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the court must affirm the
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Commissioner’s factual findings even if the preponderance of the evidence is against the
Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court acknowledges
that judicial review of the ALJ’s findings is limited in scope, it notes that the review
“does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairments 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 twelve months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is “an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrated by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20 C.F.R.
§ 404.1520(a)-(f). Specifically, the Commissioner must determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative answer to
any of the above questions leads either to the next question, or, on steps three and five, to
a finding of disability. A negative answer to any question, other than step three, leads to
a determination of ‘not disabled.’” Id. at 1030 (citing 20 C.F.R. § 416.920(a)-(f)). “Once
a finding is made that a claimant cannot return to prior work the burden shifts to the
Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559
(11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Sanders had not engaged
in substantial gainful activity since June 10, 2009, and, therefore, met Step One. (R. 19).
Next, the ALJ found that Sanders satisfied Step Two because she suffered from the
severe impairments of “lumbar strain, status-post motor vehicle accident; fibromyalgia;
migraine headaches; irritable bowel syndrome; [and] asthma.” Id. The ALJ then
proceeded to the next step and found that Sanders failed to satisfy Step Three because
she “does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments.” (R. 20). Although the ALJ answered Step Three
in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ
proceeded to Step Four where she determined that Sanders has the residual functional
capacity (RFC) to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a),
however, the claimant cannot work around chemicals, fumes or odors,
cannot work outdoors, and must avoid hot and cold temperature extremes.
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(R. 21). In light of her RFC, the ALJ held that Sanders “is unable to perform any past
relevant work.” (R. 24). Lastly, in Step Five, the ALJ considered Sanders’ age,
education, work experience,1 and RFC and determined “there are jobs that exist in
significant numbers in the national economy [Sanders] can perform.” (R. 25).
Therefore, the ALJ found that Sanders “has not been under a disability, as defined in the
Social Security Act, from June 10, 2009, through the date of this decision.” (R. 26).
V. Analysis
The court now turns to Sanders’ contentions that the ALJ erred by (1) not giving
proper weight to the opinion of her treating physician; (2) failing to recontact her treating
physician; and (3) giving controlling weight to the opinion of the State agency reviewing
physician. See doc. 8 at 9-13. The court addresses each contention in turn.
A.

The ALJ properly considered Dr. Cummings’ opinion.

Sanders contends the ALJ did not give proper weight to the opinion of Dr. C.
Louis Cummings, one of her treating physicians. The record shows Dr. Cummings
treated Sanders for irritable bowel syndrome, vascular headaches, and fibromyalgia from
September 10, 2008, through April 13, 2010. (R. 210-16, 278-81). Dr. Cummings also
completed a physical capacities evaluation on March 9, 2010, which limited Sanders to a
total of four hours sitting and three hours standing/walking in an eight-hour workday,

1

As of the date of the ALJ’s decision, Sanders was 48 years old, had a high
school education, and had past relevant light to medium unskilled work as a cleaner and
laundry worker. (R. 24-25).
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and to only occasional pushing and pulling, bending, stooping, and reaching. (R. 235).
Dr. Cummings also indicated on a Clinical Assessment of Pain form that Sanders’ pain
was “intractable and virtually incapacitating.” (R. 237). Sanders argues the ALJ erred in
giving Dr. Cummings’ opinion little weight. Doc. 8 at 9-12.
To determine how much weight to give Dr. Cummings’ opinion, the ALJ had to
consider several factors, including whether Dr. Cummings (1) has examined Sanders; (2)
has a treating relationship with Sanders; (3) presented medical evidence and explanation
supporting the opinion; (4) provided an opinion that is consistent with the record as a
whole; and (5) is a specialist. See 20 C.F.R. § 416.927(c). Because Dr. Cummings is a
treating physician, the ALJ must give “controlling weight” to his opinion if it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R. § 416.927(c)(2).
Moreover, in this circuit “the testimony of a treating physician must be given substantial
or considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997). “Good cause” exists when the evidence does not
bolster the treating physician’s opinion; a contrary finding is supported by the evidence;
or the opinion is conclusory or inconsistent with the treating physician’s own medical
records. Id. Finally, if the ALJ rejects a treating physician’s opinion, “[t]he ALJ must
clearly articulate the reasons for giving less weight to the opinion . . . and the failure to
do so is reversible error.” Id.

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Here, ALJ correctly applied the law and articulated a number of reasons why he
found Dr. Cummings’ opinion was entitled to “very little evidentiary weight.” (R. 23).
First, the ALJ noted that Dr. Cummings’ own treatment undermine his opinions: “Most
importantly, Dr. Cummings [sic] own treatment notes do not support these limitations, as
he never referenced any pain upon sitting, reaching or stooping during any treatment visit
prior to his completion of the above form.” Id. As the ALJ observed, in July 2009, Dr.
Cummings noted that Sanders’ “[l]ow back pain and fibromyalgia are fairly stable, as is
her irritable bowel syndrome.” (R. 212). This notation was consistent with Dr.
Cummings’ April 2009 observation that Sanders’ “irritable bowel syndrome has been
adequately controlled,” and that her “[v]ascular headaches are not an issue.” (R. 213)
The ALJ also found it significant that “Dr. Cummings only treated [Sanders] on one
occasion, in April of 2010 for irritable bowel syndrome, following his completion of the
physical capacity evaluation forms.” (R. 23). The ALJ reasonably found this was
“highly unusual in light of the fact that, according to Dr. Cummings, the claimant is
‘incapacitated’ by pain.” Id.
Second, the ALJ found that Dr. Cummings’ opinion was not supported by the
other medical evidence: “Dr. Cummings imitations are contradicted by the findings of a
comprehensive physical examination performed in October of 2010 by Dr. Julene
Pearson,” who the ALJ observed “documented entirely normal physical, neurological and
musculoskeletal examination findings.” Id. Although Sanders complained of back pain
when seen by Dr. Pearson, physical examination of Sanders’ back showed no tenderness
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on palpation or muscle spasm, and Dr. Pearson indicated Sanders’ musculoskeletal
system was normal. (R. 297). Significantly, Dr. Pearson found that Sanders’
lumbosacral spine “exhibited no abnormalities,” had “full range of motion,” and that
“pain was not elicited by motion.” Id. Moreover, Dr. Pearson’s review of systems
indicated Sanders was “[n]ot feeling tired or poorly,” and had no pulmonary or
gastrointestinal symptoms. (R. 296). Based on her examination, Dr. Pearson diagnosed
asthma, but stated it “is well-controlled,” and did not diagnose fibromyalgia, irritable
bowel syndrome, or migraine headaches. (R. 297). This diagnosis further weakens Dr.
Cummings’ opinion of disabling pain.
Finally, the ALJ found Dr. Cummings’ opinion was not supported by diagnostic
testing. As the ALJ correctly observed, “[t]he objective evidence does not support Dr.
Cummings opinion either, as numerous X-Rays of the claimant’s spine, shoulder and
extremities were all unremarkable, as was a CT scan of the claimant’s abdomen.” (R. 23,
258, 315-18).
Based on the lack of diagnostic support and the record as a whole, the ALJ found
that “[t]here is simply nothing beyond [Sanders’] own allegations and statements which
would support Dr. Cummings’s conclusions,” and, therefore, gave “very little evidentiary
weight” to Dr. Cummings’ opinion. (R. 23). In reaching this determination, the ALJ
considered the factors set forth in the regulations and, consistent with this circuit’s pain
standard, articulated reasons why she gave Dr. Cummings’ opinion very little weight.
Specifically, the ALJ found that Dr. Cummings’ opinion was inconsistent with Dr.
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Cummings’ own treatment notes, the other medical evidence, and the diagnostic test
results. Therefore, the ALJ had good cause for rejecting Dr. Cummings’ opinion, and
committed no reversible error. See Lewis, 125 F.3d at 1440 (“good cause” exists when
physician’s opinion is inconsistent with own records, a contrary finding is supported by
the evidence, and the evidence does not bolster physician’s opinion); 20 C.F.R. §
416.927(c)(2) (opinion must be “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and . . . not inconsistent with the other substantial
evidence” to receive controlling weight).
B.

The ALJ was not required to recontact Dr. Cummings.

The court is not persuaded by Sanders’ second contention that the ALJ should have
contacted Dr. Cummings for clarification. Doc. 8 at 12-13. Under the relevant regulation
in effect at the time,2 the ALJ only had a duty to contact Dr. Cummings if there was
insufficient medical evidence to allow the ALJ to determine whether Sanders was
disabled:
When the evidence we receive from your treating physician or psychologist
or other medical source is inadequate for us to determine whether you are
disabled, we will need additional information to reach a determination or a
decision. To obtain the information, we will take the following actions.

2

New regulations regarding recontacting of medical sources went into effect on
March 26, 2012. 77 Fed. Reg. 10651-01 (February 23, 2012). Under the new
regulations, recontacting a medical source is within the discretion of the ALJ. See 20
C.F.R. § 404.1520b(c)(1) (“We may recontact your treating physician . . . .”) (emphasis
added).
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(1) We will first recontact your treating physician or psychologist or
other medical source to determine whether the additional information
we need is readily available.
20 C.F.R. § 404.912(e)(2010) (emphasis added). Here, the medical evidence included
extensive treatment notes and diagnostic testing showing the extent of Sanders’
impairments. Consequently, the ALJ had no obligation to recontact Dr. Cummings
because the record contained sufficient medical evidence to allow the ALJ to make an
informed disability determination.
Sanders’ contention also misses the mark because she has not shown how the
ALJ’s failure to contact Dr. Cummings resulted in an unfair proceeding or clear
prejudice. Before remanding for further development of the record, a reviewing court
must consider “whether the record reveals evidentiary gaps which result in unfairness or
‘clear prejudice.’” Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir.1982) (quoting Ware
v. Schweiker, 651 F.2d 408, 413 (5th Cir. Unit A July 1981). Sanders has not established
the requisite prejudice because there are no evidentiary gaps in the record that prevented
the ALJ from making a conclusive determination regarding her disability. Therefore,
remand for development of the record is not required.
C.

The ALJ did not give controlling weight to the State agency reviewing
physician.

Finally, Sanders contends that the ALJ improperly gave “controlling weight” to
Dr. Robert Heilpern, the State agency reviewing physician. Doc. 8 at 13. The record
does not support Sanders’ contention. Rather, in considering Sanders’ credibility, the

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ALJ cited portions of Dr. Heilpern’s report showing Sanders had failed to cooperate in
the disability determination process:
In a State agency medical review note, Dr. Robert Heilpern also noted the
claimant was not cooperating in the disability determination process, as she
refused to complete daily activities or work history reports. Dr. Heilpern
rated the claim insufficient based on the claimant’s failure to cooperate.
Furthermore, despite assurances to the contrary, as of the date of this
decision, neither the work history report nor the daily activities report have
been submitted.
(R. 24) (citations to the record omitted). This is the only mention of Dr. Heilpern’s
report by the ALJ, and shows that she did not rely on Dr. Heilpern’s medical opinions.
Therefore, Sanders’ contention is without merit.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Sanders is not disabled is supported by substantial evidence, and that the ALJ applied
proper legal standards in reaching this determination. Therefore, the Commissioner’s
final decision is AFFIRMED. A separate order in accordance with the memorandum of
decision will be entered.
Done this 28th day of July, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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