Horn v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION and ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/27/2015. (AHI )

FILED
2015 Jul-27 PM 03:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NEPHETERIA DELSHAWN
HORN,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. 2:14-CV-1896-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Nepheteria Delshawn Horn, commenced this action on October 6,
2014, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse
decision of the Commissioner, affirming the decision of the Administrative Law
Judge (“ALJ”) denying her claim for supplemental security income benefits. For the
reasons stated herein, the court finds that the Commissioner’s ruling is due to be
affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.

Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ improperly considered the opinion of her treating
physician, and failed to recontact that physician for an additional assessment, and that
new evidence submitted for the first time to the Appeals Council warrants remand.
Upon review of the record, the court concludes those contentions are not correct.
The opinion of a treating physician “must be given substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Phillips v. Barnhart, 357 F.3d
1232, 1240-41 (11th Cir. 2004) (internal citations omitted). Good cause exists when
“(1) [the] treating physician’s opinion was not bolstered by the evidence; (2) [the]
evidence supported a contrary finding; or (3) [the] treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Id. (alterations
supplied). Additionally, the ALJ is not required to accept a conclusory statement
from a medical source, even a treating source, that a claimant is unable to work,
because the decision whether a claimant is disabled is not a medical opinion, but is
a decision “reserved to the Commissioner.” 20 C.F.R. § 416.927(d)(1). Social
Security regulations also provide that, in considering what weight to give any medical
2

opinion (regardless of whether it is from a treating or non-treating physician), the
Commissioner should evaluate: the extent of the examining or treating relationship
between the doctor and patient; whether the doctor’s opinion can be supported by
medical signs and laboratory findings; whether the opinion is consistent with the
record as a whole; the doctor’s specialization; and other factors. See 20 C.F.R. §
416.927(c). See also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (“The
weight afforded a physician’s conclusory statements depends upon the extent to
which they are supported by clinical or laboratory findings and are consistent with
other evidence as to claimant’s impairments.”).
Dr. John D. Morgan, claimant’s treating rheumatologist, stated in an October
19, 2011 office note that “[i]t appears that largely she has not been working because
of the difficult generalized national economic conditions but it appears unlikely that
she would have the physical vigor to do work if there were a job available to her.”1
Dr. Morgan completed a “Physical Capacities Evaluation” form on December 27,
2011. He indicated that claimant could occasionally lift and/or carry ten pounds. She
could sit for a total of four hours, and stand and walk (combined) for a total of two
hours, during an eight-hour work day. She did not need an assistive device to
ambulate. She could never climb, balance, bend, or stoop. She could occasionally
1

Tr. 369 (alteration supplied).

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push, pull, perform gross and fine manipulation, and reach. She could operate motor
vehicles, but she could not work around hazardous machinery, dust, allergens, or
fumes.2
Dr. Roberts also completed a “Clinical Assessment of Pain” form the same
date. He indicated that pain was present to such an extent as to be distracting to
adequate performance of daily activities or work, that physical activity would greatly
increase pain to such a degree as to cause distraction from or abandonment of tasks,
and that claimant would experience some side effects from her medication, but not
to such a degree as to create serious problems in most instances. Claimant did have
an underlying condition consistent with the pain she experienced.3
Finally, Dr. Roberts completed a “Clinical Assessment of Fatigue/Weakness”
form. He indicated that fatigue and weakness were present in claimant’s life to such
an extent as to negatively affect adequate performance of daily activities or work.
Physical activity would greatly increase her fatigue and weakness to such a degree as
to cause total abandonment of tasks. Claimant would experience some side effects
from her medication, but not to such a degree as to create serious problems in most
instances. Claimant did have an underlying condition consistent with the fatigue and

2

Tr. 354.

3

Tr. 356-57.

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weakness she experienced.4
The ALJ afforded little weight to Dr. Morgan’s assessments, reasoning that the
assessments were
rendered in November 2011, shortly after the claimant’s diagnosis. As
noted previously, the claimant’s symptoms improved over a span of
several months and her systematic lupus erythematosus was declared to
be in remission in August 2012 . . . . Limited weight has also been
placed in Dr. Morgan’s comments that the claimant may not have the
physical vigor [for] work, this comment was made in October 2011, only
a few months after her diagnosis. As discussed throughout, the
claimant’s condition improved significantly within the 12 months
following her diagnosis. Further, Dr. Morgan also stated that the
claimant was likely out of work due to the difficult economic realities
of an economy in recession.5
Those were are all permissible considerations. Even so, claimant contends that
they were not supported by the record. It cannot be denied that the ALJ erroneously
stated the date of Dr. Morgan’s assessments as being November of 2011, as the record
clearly reveals that the assessments were generated in December of 2011. That
mistake is not material, however, because the logic employed by the ALJ still is the
same. Claimant still could have been adjusting to her lupus medications in December
of 2011.
The ALJ also stated that claimant’s systematic lupus erythematosus was in

4

Tr. 358-59.

5

Tr. 29-30 (alteration supplied, citation to the record omitted).

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remission in August of 2012. The record on which that statement was based came
from Dr. John R. Brouillette, claimant’s nephrologist, on August 30, 2012. Dr.
Brouillette’s assessment and plan included the following statement: “Delightful 27year-old female with lupus nephritis was in remission status post delivery by
Cesarean approximately two weeks ago with some mild leg swelling. Does not
appear to have ongoing nephropathy or relapse at this time of her
glomerulonephritis.”6 Claimant asserts that the ALJ’s confusion of systematic lupus
erythematosus with lupus nephritis is significant, because “[l]upus is the medical
condition and lupus nephritis is a symptom and result of lupus.”7 That is a true
statement, but the record does not actually support the underlying premise that

6

Tr. 382 (emphasis supplied).

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Doc. no. 10 (claimant’s brief), at 10 (alteration supplied). One leading medical dictionary
has defined “systematic lupus erythematosus” as
a chronic, remitting, relapsing, inflammatory, often febrile multisystemic disorder of
connective tissue, acute or insidious in onset, characterized principally by
involvement of the skin. . . , joints, kidneys, and serosal membranes. It is of
unknown etiology, but it is thought to represent a failure of regulatory mechanisms
of the autoimmune system, as suggested by the high level of numerous
autoantibodies against nuclear and cytoplasmic cellular components. It is marked by
a wide variety of abnormalities, including . . . nephritis . . . .
Dorland’s Illustrated Medical Dictionary 1072 (30th ed. 2003). “Nephritis” is defined as
“inflammation of the kidney; a focal or diffuse proliferative or destructive process that may involve
the glomerulus, tubule, or interstitial renal tissue.” Id. at 1229. More specifically, “lupus nephritis”
is defined as “glomerulonephritis (diffuse, focal, or membranous) associated with systemic lupus
erythematosus . . . .” Id. at 1230. “Glomerulonephritis” is defined as “nephritis accompanied by
inflammation of the capillary loops in the renal glomeruli.” Id. at 779. A “glomerulus” is “a tuft or
cluster.” Id. at 780.

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claimant’s lupus itself was not in remission. Dr. Brouillette’s August 2012 notes are
not 100% clear on that subject. Absent any punctuation, it s impossible to determine
whether the “remission” referred to the “delightful 27-year-old female,” or to the
lupus nephritis. Dr. Brouillette also gave the following assessment on March 8, 2012:
“27-year-old

African-American

female

with

lupus,

history

of

acute

glomerulonephritis proliferative type as of 05/07/2011. In remission for less than one
calendar year, now pregnant.”8 That record also could reasonably be read as stating
that either the lupus or the nephritis was in remission. Accordingly, it cannot be said
that the ALJ’s interpretation of the notes as referring to the lupus being in remission
were not supported by substantial evidence. Regardless, it appears that nephritis was
the primary symptom claimant experienced as a result of her lupus, or at least that it
was the primary symptom that concerned her physicians. Thus, stating that plaintiff’s
nephritis was in remission is actually the functional equivalent of stating that the
lupus itself was in remission.
Finally, it is important to note that the mere existence of an impairment, or of
a medical condition, does not determine disability. Instead, the relevant consideration
is the effect of claimant’s impairment, or combination of impairments, on her ability
to perform substantial gainful work activities. See 20 C.F.R. § 416.905(a) (defining
8

Tr. 391.

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a disability as “the inability to do 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”). See also Bowen v. Yuckert, 482 U.S. 137, 146 (1987)
(“The [Social Security] Act ‘defines “disability” in terms of the effect a physical or
mental impairment has on a person’s ability to function in the workplace.’”) (quoting
Heckler v. Campbell, 461 U.S. 458, 459-60 (1983)). Here, there is no indication that
either the lupus or the nephritis caused any disabling functional limitations.
Based on all of the foregoing considerations, the ALJ’s decision to afford only
little weight to Dr. Morgan’s opinion was supported by substantial evidence.
The ALJ also did not err by failing to recontact Dr. Morgan for clarification of
his opinion. According to claimant, “[e]ven if the ALJ finds Dr. Morgan’s opinion
inconsistent, she is not free to dismiss this opinion out of hand.”9 Claimant relies on
Social Security Ruling 96-5p, which states, in pertinent part, that “[f]or treating
sources, the rules also require that we make every reasonable effort to recontact such
sources for clarification when they provide opinions on issues reserved to the
Commissioner and the bases for such opinions are not clear to us.” SSR 96-5p
(alteration and emphasis supplied). Here, there is no indication that the ALJ found
9

Doc. no. 10 (claimant’s brief), at 12 (alteration supplied).

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Dr. Morgan’s assessment to be unclear, or that she could not discern the basis for that
opinion. There was therefore no need for the ALJ to recontact Dr. Morgan for any
further explanation. See Shaw v. Astrue, 392 F. App’x 684, 688-89 (11th Cir. 2010).
Recent amendments to the regulations have made it clear, moreover, that
recontacting a physician for clarification is not mandatory, but within the ALJ’s
discretion. The relevant regulatory provision provides that, if the evidence in the
record is insufficient or inconsistent, the ALJ “may need to take additional actions,”
including:
(a) If all of the evidence we receive, including all medical
opinion(s), is consistent and there is sufficient evidence for us to
determine whether you are disabled, we will make our determination or
decision based on that evidence.
(b) If any of the evidence in your case record, including any
medical opinion(s), is inconsistent, we will weigh the relevant evidence
and see whether we can determine whether you are disabled based on
the evidence we have.
(c) If the evidence is consistent but we have insufficient evidence
to determine whether you are disabled, or if after weighing the evidence
we determine we cannot reach a conclusion about whether you are
disabled, we will determine the best way to resolve the inconsistency or
insufficiency. The action(s) we take will depend on the nature of the
inconsistency or insufficiency. We will try to resolve the inconsistency
or insufficiency by taking any one or more of the actions listed in
paragraphs (c)(1) through (c)(4) of this section. We might not take all
of the actions listed below. We will consider any additional evidence we
receive together with the evidence we already have.

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(1) We may recontact your treating physician, psychologist,
or other medical source. We may choose not to seek additional
evidence or clarification from a medical source if we know from
experience that the source either cannot or will not provide the
necessary evidence. If we obtain medical evidence over the
telephone, we will send the telephone report to the source for
review, signature, and return;
(2) We may request additional existing records (see §
404.1512);
(3) We may ask you to undergo a consultative examination
at our expense (see §§ 404.1517 through 404.1519t); or
(4) We may ask you or others for more information.
(d) When there are inconsistencies in the evidence that we cannot
resolve or when, despite efforts to obtain additional evidence, the
evidence is insufficient to determine whether you are disabled, we will
make a determination or decision based on the evidence we have.
20 CFR § 416.920b (emphasis supplied). The ALJ did not err by exercising her
discretion to not recontact Dr. Morgan and, instead, make a decision based on the
information in the record.
Claimant’s final argument is that the case should be remanded for consideration
of evidence submitted for the first time to the Appeals Council. Dr. Morgan
submitted a “Statement of Incapacitating Condition” form on August 8, 2013, several
months after the ALJ’s March 27, 2013 decision. Dr. Morgan stated that, due to
claimant’s systemic lupus erythematosus and lupus nephritis, she would experience

10

“very impaired endurance, air hunger, loss of adaptability to changing conditions and
impairments in problem solving.”10 Claimant’s condition would “substantially
reduce[] [her] ability to work” for more than six months.11 The Appeals Council
considered that statement but nonetheless denied claimant’s request for review.12
The Appeals Council’s decision was consistent with Eleventh Circuit authority
providing that:
When a claimant submits new evidence to the AC [i.e., Appeals
Council], the district court must consider the entire record, including the
evidence submitted to the AC, to determine whether the denial of
benefits was erroneous. Ingram[ v. Commissioner of Social Security
Administration], 496 F.3d [1253,] 1262 [(11th Cir. 2007)]. Remand is
appropriate when a district court fails to consider the record as a whole,
including evidence submitted for the first time to the AC, in determining
whether the Commissioner’s final decision is supported by substantial
evidence. Id. at 1266-67. The new evidence must relate back to the time
period on or before the date of the ALJ’s decision. 20 C.F.R. §
404.970(b).
Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008) (alterations and emphasis
supplied).
Here, Dr. Morgan’s additional report was generated more than four months
after the ALJ’s decision, and it was an assessment of claimant’s condition on that
date. There is no reason to believe that Dr. Morgan’s report related back to the time
10

Tr. 405.

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Id. (alterations supplied).

12

Tr. 1-4.

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period before the ALJ’s decision. Moreover, the additional report was generated
almost a year and a half after Dr. Morgan’s last treatment note from March 1, 2012.13
Thus, there were no medical records, other than the conclusory statement from Dr.
Morgan, documenting a decline in claimant’s condition after the ALJ’s decision. The
Appeals Council was justified in refusing to consider the report.
In summary, the court finds that the Commissioner’s decision was supported
by substantial evidence and in accordance with applicable law. Accordingly, the
decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The
Clerk is directed to close this file.
DONE this 27th day of July, 2015.

______________________________
United States District Judge

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See Tr. 376-77.

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