Gregg v. Social Security Administration, Commissioner
Filing
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MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/17/2018. (PSM)
FILED
2018 Sep-17 PM 03:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
Elizabeth Gregg,
Plaintiff,
vs.
NANCY BERRYHILL,
Commissioner of
Social Security,
Defendant.
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2:17-cv-00482-LSC
MEMORANDUM OF OPINION
I.
Introduction
The plaintiff, Elizabeth Gregg, appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying
her applications for Supplemental Security Income (“SSI”), a period of disability,
and Disability Insurance Benefits (“DIB”). Ms. Gregg 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. Gregg was fifty years old at the time of the Administrative Law Judge’s
(“ALJ’s”) decision, and she has a high school education. (Tr. at 34.) Her past work
experiences include employment as a cashier and a housekeeper. (Id.) Ms. Gregg
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claims that she became disabled on March 18, 2014, when she injured her right
hand and forearm during a motor vehicle accident, and suffers from open distal
radius and ulna fracture, multilevel degenerative disc disease, and obesity. (Tr. at
16-36.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).
See id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
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of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
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decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.
See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
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If the plaintiff’s
impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ first found that Ms.
Gregg was insured through the date of his decision. (Tr. at 23.) He further
determined that Ms. Gregg has not engaged in SGA since March 8, 2014. (Id.)
According to the ALJ, Plaintiff’s status post right open distal radius and ulna
fracture, multilevel degenerative disc disease, and obesity 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 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 28.) The ALJ did not find
Ms. Gregg’s allegations to be totally credible, and he determined that she has the
following RFC: light work which allows no right upper extremity pushing and/or
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pulling; no overhead reaching with the right hand; no driving; and no unprotected
heights. (Tr. at 30.)
According to the ALJ, Ms. Gregg is unable to perform any of her past
relevant work, she is “an individual closely approaching advanced age,” has a
“high school education,” and is able to communicate in English, as those terms are
defined by the regulations. (Tr. at 34.) He determined that Plaintiff has “no
transferable skills from any past relevant work and/or transferability of skills is not
an issue in this case.” (Id.) Because Plaintiff cannot perform the full range of light
work, the ALJ enlisted a vocational expert (“VE”) and used Medical-Vocational
Rule 201.25 as a guideline for finding that there is a significant number of jobs in
the national economy that she is capable of performing, including cashier, parking
lot attendant, and mail room clerk. (Tr. at 35.) The ALJ concluded his findings by
stating that Plaintiff was not under a disability, as defined in the Social Security
Act, at any time through the date of his decision. (Tr. at 36.)
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 Stone
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v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).
“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
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
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entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). 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. Gregg alleges that the ALJ’s decision should be reversed and remanded
because the ALJ failed to state the weight given to the opinion of one of her treating
physicians, pain management specialist Dr. Audra Eason.
The ALJ must articulate the weight given to different medical opinions in the
record and the reasons therefore. See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1179 (11th Cir. 2011). The weight afforded to a medical opinion regarding the
nature and severity of a claimant’s impairments depends, among other things, upon
the examining and treating relationship the medical source had with the claimant,
the evidence the medical source presents to support the opinion, how consistent
the opinion is with the record as a whole, and the specialty of the medical source.
See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Within the classification of acceptable medical sources are the following
different types of sources that are entitled to different weights of opinion: 1) a
treating source, or a primary physician, which is defined in the regulations as “your
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physician, psychologist, or other acceptable medical 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;” 2) a non-treating source, or a consulting
physician, which is defined as “a physician, psychologist, or other acceptable
medical source who has examined you but does not have, or did not have, an
ongoing treatment relationship with you;” and 3) a non-examining source, which is
“a physician, psychologist, or other acceptable medical source who has not
examined you but provides a medical or other opinion in your case . . . includ[ing]
State agency medical and psychological consultants . . . .” 20 C.F.R. § 404.1502.
The regulations and case law set forth a general preference for treating
medical sources’ opinions over those of non-treating medical sources, and nontreating medical sources over non-examining medical sources. See 20 C.F.R. §
404.1527(d)(2); Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir. 1985). Thus, a
treating physician’s opinion is entitled to “substantial or considerable weight
unless ‘good cause’ is shown to the contrary.” Crawford, 363 F.3d at 1159 (quoting
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations
omitted). “Good cause” exists for an ALJ to not give a treating physician’s opinion
substantial weight when the: “(1) treating physician’s opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
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opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips, 357 F.3d at 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good
cause” existed where the opinion was contradicted by other notations in the
physician’s own record). In short, an ALJ “may reject the opinion of any physician
when the evidence supports a contrary conclusion.” McCloud v. Barnhart, 166 F.
App’x 410, 418–19 (11th Cir. 2006) (citing Bloodsworth v. Heckler, 703 F.2d 1233,
1240 (11th Cir. 1983)).
The Court must also be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s RFC, and the application of vocational factors
“are not medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a
case; i.e., that would direct the determination or decision of disability.” 20 C.F.R.
§§ 404.1527(e), 416.927(d). The Court is interested in the doctors’ evaluations of
the claimant’s “condition and the medical consequences thereof, not their opinions
of the legal consequences of his [or her] condition.” Lewis, 125 F.3d at 1440. Such
statements by a physician are relevant to the ALJ’s findings, but they are not
determinative, as it is the ALJ who bears the responsibility for assessing a
claimant’s RFC. See, e.g., 20 C.F.R. § 404.1546(c).
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Contrary to Plaintiff’s claim, the ALJ did state the weight he was giving to
Dr. Eason’s opinion: he stated that he gave it “persuasive” weight. (Tr. at 33.)
Assuming solely for argument that greater particularity was required, any error
would be harmless, as the ALJ clearly relied on Dr. Eason’s treatment notes, which
were consistent with his ultimate RFC finding. See Laurey v. Comm’r of Soc. Sec.,
632 F. App’x 978, 987 (11th Cir. 2015) (holding that “[a]lthough the ALJ never
stated the weight given to Dr. Frailing’s treatment notes, the ALJ discussed the
content of Dr. Frailing’s notes, showing that the ALJ considered and gave weight
to this medical evidence” and “[w]hile the ALJ did not explicitly address this
opinion, nothing in the ALJ’s decision is inconsistent with it”). Relatedly, not all
progress notes from a doctor are even considered “medical opinions” under the
regulations. “Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and
severity of [a claimant’s] impairment(s) . . . .” 20 C.F.R. § 404.1527(a)(2).
Additionally, despite the ALJ’s referring to Dr. Eason as a “treating” physician, an
independent review of the record reveals that Dr. Eason may have only seen
Plaintiff one time, and such a lack of an ongoing treating relationship would
undercut the normal level of deference afforded to treating physician’s opinions.
See generally 20 C.F.R. § 404.1502.
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In any event, Plaintiff visited Dr. Eason on April 1, 2015, approximately one
year after the March 18, 2014, motor vehicle accident that injured her hand and
arm. (Tr. at 455). Plaintiff had experienced pain and limitation of motion in the few
months after her accident, but treatment notes from other physicians showed that
she exhibited steady improvement following surgery. (Tr. at 25, 33, 274, 368-72,
387-41, 438-49, 554-55, 558). Indeed, Plaintiff exhibited normal range of motion
and strength after her stabilizing devices were removed in June 2014. (Tr. at 33,
511, 522, 523, 527). Plaintiff did exhibit a setback in August 2014 due to an
infection. (Tr. at 515.) However, Plaintiff’s treating orthopedic surgeon, Dr. Ali
Kilic, released Plaintiff from treatment and stopped prescribing pain medication in
October 2014, only seven months after Plaintiff’s accident. (Tr. at 462.) Except for
a primary care appointment (tr. at 466-74), Plaintiff did not seek further medical
treatment until her April 1, 2015, visit with Dr. Eason.
During the April 1, 2015 visit, Dr. Eason did not assess any specific, workrelated limitations. (Tr. at 455). Instead, as the ALJ noted, Dr. Eason stated that
Plaintiff had “excellent results from surgery and should continue to improve.” (Id.)
Dr. Eason generally noted that Plaintiff had “great return of [range of motion] of
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the hand considering the severity of injuries.” (Id.)1 Although Plaintiff reported
continued pain, Dr. Eason declined to prescribe opiates, but, instead, prescribed
non-steroidal anti-inflammatory drugs (“NSAIDs”) and a topical cream. (Id.) Dr.
Eason explained, “I believe that we can optimize adjuvant pain medications and
topicals to improve efficacy while avoiding use of opiates.” (Id.)
Contrary to Plaintiff’s argument, the ALJ did not assume that Plaintiff had
no limitations from her arm injury based on Dr. Eason’s report. Instead, the ALJ
found Plaintiff was limited to light work and included additional limitations to
address Plaintiff’s right arm impairment such as limited pushing, pulling, and
reaching overhead. (Tr. at 30). Nothing in Dr. Eason’s report undermines this
RFC finding.
The Court finds no error in the ALJ’s treatment of Dr. Eason’s opinion.
IV. Conclusion
Upon review of the administrative record, and considering all of Ms. Gregg’s
arguments, the Court finds the Commissioner’s decision is supported by
Plaintiff takes issue with the fact that the ALJ did not recite the entirety of Dr. Eason’s
sentence quoted above, but instead only summarized that she said that Plaintiff had “great return
of [range of motion] of the hand,” leaving out the “considering the severity of injuries” portion.
(Tr. at 26-27, 33). However, “there is no rigid requirement that the ALJ specifically refer to
every piece of evidence in his decision, so long as the ALJ’s decision . . . is not a broad rejection
which is not enough to enable [a reviewing court] to conclude that the ALJ considered [the
claimant’s] medical condition as a whole.” Dyer, 395 F.3d at 1211.
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substantial evidence and in accord with the applicable law. A separate order will be
entered.
DONE and ORDERED on September 17, 2018.
_____________________________
L. Scott Coogler
United States District Judge
160704
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