Cunningham v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/29/2014. (KEK)
2014 Sep-29 PM 03:06
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Case No.: 2:13-cv-00295-MHH
Plaintiff Williemae Cunningham seeks review of the decision of the
Commissioner of the Social Security Administration denying her claim for
supplemental security income. See 42 U.S.C. § 1383(c). After careful review, the
Court affirms the Commissioner’s decision.
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and her ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s findings. “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). In making this evaluation, the Court may not “reweigh the evidence or
decide the facts anew,” and the Court must “defer to the ALJ’s decision if it is
supported by substantial evidence even if the evidence may preponderate against
it.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145–46 (11th Cir. 1991).
PROCEDURAL AND FACTUAL BACKGROUND
Ms. Cunningham applied for social security income benefits under Title XVI
on September 21, 2009.
She alleges that her disability began on
November 1, 2006. (Id.). The Social Security Administration initially denied Ms.
Cunningham’s application on December 22, 2009.
Cunningham’s request, an Administrative Law Judge (“ALJ”) held a hearing on
September 21, 2011. (R. 30–73).
Ms. Cunningham was 45 years old at the time of her hearing. (Doc. 10, p.
4). She had an eleventh grade education, was able to communicate in English, and
did not have past relevant work experience. (Doc. 10, p. 4). In his October 25,
2011 decision, the ALJ found that Ms. Cunningham had not engaged in substantial
gainful activity since September 3, 2009. (R. 16). The ALJ concluded that Ms.
Cunningham suffers from the following severe impairments: migraines,
endometriosis, hypertension, and depression.
However, the ALJ
determined that Ms. Cunningham does not have an impairment or combination of
impairments listed in or medically equal to one listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (R. 16). The ALJ found that Ms. Cunningham retained
the residual functional capacity (RFC) to perform light work as defined in 20
C.F.R. § 416.967(b), and she could do occasional bending, stooping, and twisting;
no driving; and no climbing or working from unprotected heights. (R. 18). The
ALJ also stated that Ms. Cunningham should be restricted to simple, repetitive,
non-complex tasks. (R. 18).
Considering Ms. Cunningham’s age, education, work experience, and RFC,
the ALJ determined that jobs exist in significant numbers in the national economy
that she could perform, including small parts assembler, inspector, and packer. (R.
25). Accordingly, the ALJ concluded that Ms. Cunningham is not disabled under
section 1614(a)(3)(A) of the Social Security Act. (R. 26).
In making his findings, the ALJ examined the medical record, which
revealed that Ms. Cunningham underwent a total hysterectomy with a left
salpingo-oophorectomy on November 30, 2006 to address enlarged fibroids. The
fibroids caused pelvic pain and abnormal uterine bleeding. (R. 19, 167–68). In
June of 2007, Ms. Cunningham developed abdominal pain due to a cyst on her
remaining ovary. (R. 19, 182). A CT scan of Ms. Cunningham’s abdomen and
pelvis in March 2009 indicated no gross abnormality. (R. 20, 175).
The ALJ noted fluctuations in Ms. Cunningham’s blood pressure from
September 24, 2010 to June 17, 2011. (R. 20, 230, 239). The ALJ also reviewed
medical records from September 2010 indicating treatment for neck pain and
depression. (R. 20, 230).
The ALJ reviewed a November 19, 2009 report from consultative examiner
Dr. Rishi K. Agarwal. (R. 20, 193–96). Dr. Agarwal’s notes state that Ms.
Cunningham has a long history of migraine headaches. In 2009, she rated her pain
as a ten on a ten-point scale. (R. 193). Dr. Agarwal reviewed Ms. Cunningham’s
complaints of pain associated with endometriosis. (Id.). Dr. Agarwal indicated
that Ms. Cunningham could perform a number of daily activities. She could get
out of bed and out of chairs, and she could climb steps without assistance. (Id.).
On the other hand, Dr. Agarwal found that Ms. Cunningham needed assistance to
heel-toe walk. (R. 195). Dr. Agarwal’s report indicates that Ms. Cunningham’s
range of motion was normal with good muscle strength in bilateral upper and lower
extremities. (Id.). Dr. Agarwal opined that Ms. Cunningham could stand or walk
for less than an hour with frequent breaks and could sit for less than an hour
without frequent breaks. In addition, Dr. Agarwal opined that Ms. Cunningham
should avoid heavy lifting. (R. 20, 193–96). The ALJ gave significant weight to
Dr. Agarwal’s opinion because the doctor’s conclusions were consistent with Ms.
Cunningham’s treatment records. (R. 23). 1
The ALJ also examined treatment notes from Dr. Sally A. Gordon, who
performed a consultative psychological examination of Ms. Cunningham on
December 3, 2009.
(R. 20–21, 197–99).
During the examination, Ms.
Cunningham complained of chronic pain associated with her migraines and
endometriosis. (R. 197). Ms. Cunningham stated that this pain ranges from eight
to ten on a ten-point scale. (Id.). Ms. Cunningham also reported that she had been
depressed for the preceding two years due to her functional limitations associated
with endometriosis and “family problems.” (Id.). Dr. Gordon found that Ms.
The ALJ stated that “Dr. Agarwal had the opportunity to review the claimant’s medical
evidence of record, and thus had significant basis for his determinations.” (R. 23). This finding
by the ALJ is not consistent with Dr. Agarwal’s notes, which state, “No medical records were
made available. . . . The absence of medical records means that the above-noted diagnoses are
based upon patient reporting alone.” (R. 196).
Cunningham had no trouble understanding questions and test instructions. (R.
198). Ms. Cunningham was “sad and tearful” during the examination, but her
“insight into difficulties was good.” (R. 198). Ms. Cunningham was “alert and
attentive[,]” and her memory was intact, but her mental processing was slow. (R.
Based upon her examination, Dr. Gordon diagnosed Ms. Cunningham with
major depressive disorder with a single moderate episode; generalized anxiety
disorder; panic disorder without agoraphobia; insomnia related to anxiety and pain;
and pain disorder associated with physiological factors and her medical condition.
(R. 199). Dr. Gordon also diagnosed migraines and endometriosis. (R. 199). Dr.
Gordon concluded that Ms. Cunningham “should be able to learn and remember
work instructions. However, her concentration and short-term memory are likely
to be poor, and she is likely to be distracted by pain and psychological issues.” (R.
199). Dr. Gordon also found that Ms. Cunningham “should be able to interact
appropriately with coworkers and supervisors, but she is likely to be withdrawn
much of the time.” (R. 199). According to Dr. Gordon, Ms. Cunningham “is
likely to have difficulty responding adaptively to work pressures due to her
medical and psychological issues.” (R. 199). The ALJ accorded Dr. Gordon’s
opinion significant weight because he found that Dr. Gordon’s report was
consistent with Ms. Cunningham’s treatment records. (R. 23–24). 2
The ALJ also reviewed the opinion of Dr. Robert Estock who consultatively
reviewed Ms. Cunningham’s medical records and completed a psychiatric review
technique and a mental RFC assessment. (R. 21, 210–226). “Dr. Estock opined
[Ms. Cunningham] had only mild restriction in activities of daily living; mild
difficulties in maintaining social functioning; and moderate difficulties in
maintaining concentration, persistence, and/or pace.” (R. 21, 220). Furthermore,
Dr. Estock opined that Ms. Cunningham could manage simple tasks, maintain
attention; handle a simple work routine; complete an 8 hour workday with
customary breaks; make short term work related decisions; interact with the public,
coworkers and supervisors; handle infrequent, gradual changes in the work
environment; and set simple short term work related goals. (R. 21, R. 226).
The ALJ reviewed the opinion of Jeremy Allen, D.O., who examined Ms.
Cunningham on September 2, 2011 at the request of her attorney. (R. 21, 245–
251). Dr. Allen noted that Ms. Cunningham was independent in all her activities
of daily living and that she cared for her grandchildren for about 4 hours a day. (R.
245). Furthermore, Dr. Allen commented that Ms. Cunningham could get on and
The ALJ stated that “Dr. Gordon had the opportunity to review the claimant’s medical
evidence of record, and thus had significant basis for her determinations.” (R. 23). This finding
is inconsistent with Dr. Gordon’s report, which states that “[n]o medical evidence of record was
available for review and consideration in the overall assessment of the claimant.” (R. 197).
off the exam table with ease; remove and replace her shoes easily; heel and toe
walk; and squat and bend with normal limits.
Dr. Allen found that Ms.
Cunningham had normal range of motion and normal strength and reflexes. (R.
22, 246). Dr. Allen diagnosed Ms. Cunningham with chronic pelvic pain, migraine
headaches, fatigue, weakness, and depression. (R. 246).
On a form dated August 30, 2011 (three days prior to Dr. Allen’s
examination), Dr. Allen opined that Ms. Cunningham could lift and/or carry 10
pounds occasionally; sit for 5 hours in an 8 hour work day; occasionally push, pull,
climb and balance; and perform gross or fine manipulation. (R. 247). Dr. Allen
concluded that Ms. Cunningham’s pain would be distracting to adequate
performance of daily activities or work and could cause the total abandonment of
tasks. (Id.). Dr. Allen found that fatigue/weakness was present to such an extent
that it would affect the performance of physical activities and could cause the
abandonment of tasks. (R. 248–251). The ALJ assigned only some weight to Dr.
Allen’s opinion because he found that several of Dr. Allen’s findings were
inconsistent with Dr. Allen’s notes (recorded three days later), particularly in
relation to Ms. Cunningham’s activities of daily living. (R. 24).
On December 20, 2012, the ALJ’s decision became the final decision of the
Commissioner of the Social Security Administration when the Appeals Council
refused to review the ALJ’s decision. (R. 3). Having exhausted all administrative
remedies, Ms. Cunningham filed this action for judicial review pursuant to
§1631(c)(3) of the Social Security Act. See 42 U.S.C. § 1383(c)(3).
To be eligible for disability insurance benefits, a claimant must be disabled.
Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013). “A
claimant is disabled if he is unable to engage in substantial gainful activity by
reason of a medically-determinable impairment that can be expected to result in
death or which has lasted or can be expected to last for a continuous period of at
least 12 months.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A claimant must prove that he is disabled. Id. (citing Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003)). To determine whether a claimant is
disabled, the Social Security Administration applies a five-step sequential analysis.
Gaskin, 533 Fed. Appx. at 930.
This process includes a determination of whether the claimant (1) is
unable to engage in substantial gainful activity; (2) has a severe and
medically-determinable physical or mental impairment; (3) has such
an impairment that meets or equals a Listing and meets the duration
requirements; (4) can perform his past relevant work, in the light of
his residual functional capacity; and (5) can make an adjustment to
other work, in the light of his residual functional capacity, age,
education, and work experience.
“The claimant’s residual functional capacity is an
assessment, based upon all relevant evidence, of the claimant’s ability to do work
despite his impairments.” Id. at 930 (citing Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997); 20 C.F.R. § 404.1545(a)(1)).
Ms. Cunningham argues that she is entitled to relief from the ALJ’s decision
because: (1) the ALJ failed to draw proper inferences from the opinions of Dr.
Agarwal and Dr. Gordon, to which the ALJ accorded “significant weight” (Doc.
10, pp. 9–10); and (2) the ALJ improperly discounted the opinion of Ms.
Cunningham’s treating physician, Dr. Allen. (Doc. 10, p. 13). Neither argument is
Ms. Cunningham argues that, while the ALJ accorded significant weight to
the opinions of Dr. Agarwal and Dr. Gordon, he drew incorrect inferences from
some of the findings in those opinions.
Ms. Cunningham points to specific
findings in Dr. Agarwal’s report and a separate statement by the vocational expert
who testified at Ms. Cunningham’s hearing, which Ms. Cunningham believes
undermine the ALJ’s final decision. (Doc. 10, p. 9). Dr. Agarwal opined that Ms.
Cunningham could “walk for [less than] an hour with frequent breaks” and “sit for
[less than] an hour with frequent breaks.” (R. 196). Ms. Cunningham claims that
Dr. Agarwal’s conclusion would preclude finding that she was able to work
because he “indicated a less than sedentary level of exertion due to an inability to
complete a full eight hour work day.” (Doc. 10, p. 9). Ms. Cunningham reaches
this conclusion by referencing a part of the vocational expert’s testimony in which
the expert stated that if Ms. Cunningham required an above average number of
breaks, she would be incapable of sustaining work. (Doc. 10, p. 9). Therefore,
Ms. Cunningham believes that the ALJ made a mistake by failing to conclude from
Dr. Agarwal’s findings and the vocational expert’s testimony that she was
disabled. (Doc. 10, p. 10–11).
Ms. Cunningham draws one conclusion from two isolated pieces of evidence
in the record, but substantial evidence supports the ALJ’s alternative conclusion.
First, Dr. Agarwal’s opinion did not indicate a less than sedentary level of exertion
as Ms. Cunningham suggests. (R. 196). Dr. Agarwal did not state in his treatment
notes that Ms. Cunningham would be unable to complete a full 8-hour workday.
In fact, many of Dr. Agarwal’s findings suggest that Ms.
Cunningham could perform sedentary work. For example, Dr. Agarwal noted that
Ms. Cunningham could accomplish her daily living activities on her own; she had
muscle strength of 5/5 in bilateral upper and lower extremities; and she could move
with a normal unstressed gait. (R. 193–196). Although Ms. Cunningham had
some discomfort and trouble getting on and off the exam table and needed
assistance to heel-toe walk, those ailments alone do not equate to an inability to
work. Furthermore, Dr. Agarwal’s diagnosis of migraine headaches and
endometriosis was based on “patient reporting alone,” without consulting medical
records. (R. 196).
The vocational expert’s testimony, taken as a whole, also supports the ALJ’s
findings. As the ALJ explained:
[T]he undersigned Administrative Law Judge asked Mr.
Long, the vocational expert, to consider the claimant’s
age, education, work experience, and residual functional
capacity. Mr. Long testified that given all of these
factors, Ms. Cunningham would be able to perform the
requirements of representative occupations such as small
parts assembler, inspector, and packer.
(R. 25). While Ms. Cunningham cites an answer the vocational expert gave to a
hypothetical question (R. 68), 3 the testimony taken as a whole supports the ALJ’s
Ms. Cunningham also argues that the ALJ improperly discounted the
opinion of Dr. Allen. Ms. Cunningham argues that Dr. Allen’s opinion is entitled
to greater weight because he was one of her treating physicians at Cooper Green
Hospital. (Doc. 10, p. 13–14). The record contains documentation from several
visits to Cooper Green Hospital. (R. 167–192, 200–209, 238–243). Dr. Allen did
not treat Ms. Cunningham during any of these visits. The record demonstrates that
Dr. Allen examined Ms. Cunningham only once on September 2, 2011 at the
request of Ms. Cunningham’s attorney. (R. 245). Dr. Allen did not have an
ongoing treatment relationship with Ms. Cunningham. (Id.). Therefore, Dr. Allen
The ALJ asked Mr. Long if the employee needs to be absent from the job site for “two/three
hours,” would that restriction preclude her from work. (R. 68). Mr. Long replied, “Yes, your
honor.” (R. 68). Dr. Agarwal’s notes do not state that Ms. Cunningham would need to be absent
from the worksite for such a long period of time.
is not a treating physician. See Nyberg v. Comm’r of Soc. Sec., 179 Fed. Appx.
589, 591 n.3 (11th Cir. 2009) (“A ‘treating source’ (i.e., a treating physician) is a
claimant’s own physician, psychologist, or other acceptable source who provides
you, or has provided you, with medical treatment or evaluation and who has, or has
had, an ongoing treatment relationship with you.”) (quoting 20 C.F.R. § 404.1502).
Instead, Dr. Allen is a one-time examiner, and as such, the ALJ was not required to
give any deference to Dr. Allen’s opinion. McSwain v. Bowen, 814 F.2d 617, 619
(11th Cir. 1987). Moreover, an “ALJ may reject the opinion of any physician
when the evidence supports a contrary conclusion.” McCloud v. Barnhart, 166
Fed. Appx. 410, 418 (11th Cir. 2006) (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1240 (11th Cir. 2983)).
The ALJ accorded only some weight to Dr. Allen’s opinion because Dr.
Allen’s findings regarding Ms. Cunningham’s pain, fatigue, and weakness were
inconsistent with Dr. Allen’s objective examination findings, particularly with
respect to Ms. Cunningham’s activities of daily living, which include caring for her
two grandchildren daily. (R. 24). Dr. Allen observed that Ms. Cunningham had a
normal gait, could walk heel toe, had normal strength in upper and lower
extremities, no guarding at the lower quadrants of her abdomen, could get off the
exam table easily, and take her shoes on and off with ease. (R. 246). Despite an
overall unremarkable medical report, Dr. Allen opined that Ms. Cunningham had a
reduced RFC, likely would abandon tasks altogether, and could only sit for 5 hours
and stand for 0 hours in an 8 hour work day. (R. 246–247). The ALJ found this
portion of Dr. Allen’s examination to be inconsistent with the rest of Dr. Allen’s
report and the medical evidence as a whole. (R. 23).
The ALJ noted that on September 1, 2009, Ms. Cunningham saw Dr. Carol
Leitner, who indicated that Ms. Cunningham declined antidepressants. (R. 203).
Furthermore, Ms. Cunningham’s Lortab for her pain was discontinued due to
marijuana abuse. (Id.). The next month, on October 21, 2009, Ms. Cunningham
saw her gynecologist, Dr. Yocunda Clayton.
Dr. Clayton examined Ms.
Cunningham’s abdomen, extremities, vagina, and neurological system and found
them all to be normal. (R. 201). Ms. Cunningham did not return to the hospital
until July 9, 2010, when she saw Dr. Mark Wilson. While Ms. Cunningham stated
in her testimony that her “blue card” permitted her to see a doctor at Cooper Green
Hospital for $4.00, (R. 55), she did not seek consistent treatment for her alleged
disabling complaints. Upon review of the record and Dr. Allen’s examination
notes, the ALJ afforded some but not controlling weight to Dr. Allen’s opinion.
The ALJ did not err in doing so based on the medical evidence as a whole. See
e.g., Russell v. Astrue, 331 Fed. Appx. 678, 681–82 (11th Cir. 2009) (ALJ did not
err in affording little weight to examiner’s opinion where he appropriately found
that the claimant’s other medical records failed to support the opinion and that the
doctor’s own examination contradicted his opinion).
Having examined the available evidence thoroughly, the ALJ determined
that Ms. Cunningham is not disabled. That finding rests on substantial evidence.
The Court will not reweigh the evidence or substitute its judgment for that of the
For the reasons outlined above, the Court concludes that substantial evidence
supports the ALJ’s decision, and the ALJ applied proper legal standards.
Accordingly, the Court AFFIRMS the decision of the Commissioner. The Court
will issue an order consistent with this memorandum opinion.
DONE and ORDERED this September 29, 2014.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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