White v. Social Security Administration, Commissioner

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/25/2017. (JLC)

FILED
2017 Sep-25 AM 11:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JOSHUA WHITE,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case Number: 4:16-cv-00248-JHE

MEMORANDUM OPINION1
Plaintiff Joshua White (“White”) seeks review, pursuant to 42 U.S.C. § 405(g), § 205(g)
of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying his application for a period of disability and disability
insurance benefits (“DIB”). (Doc. 1). White timely pursued and exhausted his administrative
remedies. This case is therefore ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). The
undersigned has carefully considered the record and, for the reasons stated below, the
Commissioner’s decision is AFFIRMED.
I. Factual and Procedural History
White filed his application for a period of disability and DIB on September 21, 2012,
alleging he became unable to work beginning August 15, 2011. (Tr. 31). The Agency initially
denied White’s application, and White requested a hearing where he appeared February 3, 2014.
(Tr. 31, 49-70). After the hearing, the Administrative Law Judge (“ALJ”) denied White’s claim

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In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 8).

on June 19, 2014. (Tr. 31-44). White sought review by the Appeals Council, which it denied on
December 15, 2015. (Tr. 1-7). On that date, the ALJ’s decision became the final decision of the
Commissioner. On February 12, 2016, White initiated this action. (See doc. 1).
White, born in 1986, was twenty-five years old on the alleged onset date. (Tr. 43). He has
a high school education, with some college. (Id.). White has past relevant work experience as a
fast food cook, cable installer, and systems operator. (Id.). White complains of back pain and
headaches, largely the result of an on-the-job injury that occurred in August 2011, testifying that
he has to alternate between sitting and standing because of pain and constantly change positions
when he sits. (Tr. 56).
II. Standard of Review2
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402
U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This Court must
“scrutinize the record as a whole to determine if the decision reached is reasonable and supported
by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This Court must uphold factual findings supported by substantial evidence. “Substantial
evidence may even exist contrary to the findings of the ALJ, and [the reviewing court] may have

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In general, the legal standards applied are the same whether a claimant seeks DIB or
Supplemental Security Income (“SSI”). However, separate, parallel statutes and regulations exist
for DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
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taken a different view of it as a factfinder. Yet, if there is substantially supportive evidence, the
findings cannot be overturned.” Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). However,
the Court reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches
to the ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d
528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the law, or if the
ALJ fails to provide the court with sufficient reasoning for determining the proper legal analysis
has been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143,
1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder.3 The Regulations define “disabled” 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 twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish entitlement to disability
benefits, a claimant must provide evidence of a “physical or mental impairment” which “must
result from anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(1)
(2)
(3)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499.
3

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(4)
(5)

by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied
steps One and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.” Pope,
998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner
must further show such work exists in the national economy in significant numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found White met the insured status requirements of the Social
Security Act through December 31, 2016 (his date last insured or “DLI”), and that White had not
engaged in substantial gainful activity from his alleged onset date of August 15, 2011. (Tr. 33).
At Step Two, the ALJ found White has the following severe impairments: degenerative disc
disease status post lumbar fusion, depression, and obesity. (Tr. 33-37). At Step Three, the ALJ
found White did not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 37-39).
Before proceeding to Step Four, the ALJ determined White’s residual functioning capacity
(“RFC”), which is the most a claimant can do despite his impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined that White had the RFC to perform sedentary work as
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defined in 20 C.F.R. 404.1567(a), except White can work with no climbing of ropes, ladders, of
scaffolds; no work at unprotected heights or with hazardous machinery; no more than occasional
stooping, crouching, or crawling; and no more than frequent interaction with co-workers,
supervisors, or the general public. (Tr. 39-43).
At Step Four, the ALJ determined White is unable to perform any past relevant work. (Tr.
43). At Step Five, the ALJ determined, based on White’s age, education, work experience, and
RFC, jobs exist in significant numbers in the national economy White could perform. (Tr. 43-44).
Therefore, the ALJ determined White has not been under a disability and denied White’s claim.
(Tr. 44).
V. Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his does not relieve
the court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)). The court,
however, “abstains from reweighing the evidence or substituting its own judgment for that of the
[Commissioner].” Id. (citation omitted).
Here, substantial evidence supports the determination White failed to demonstrate a
disability, and the ALJ, as well as the Appeals Council, applied the proper standards to reach this
conclusion. White challenges the Commissioner’s decision on two specific grounds, contending:
(1) the Appeals Council erred by failing to consider/remand based on new medical records it
received and the decision was not based on substantial evidence when these submissions are
considered (doc. 12 at 23-29 & doc. 16 at 1-7); and (2) the ALJ erred in substituting his opinion

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for that of Dr. Jay Ripka, an consultative examining physician, without good cause (Doc. 12 2932 & doc. 16 at 8-9).4 Neither of these grounds supports reversal.
A. Medical Records Submitted to the Appeals Council Do Not Warrant Remand
White argues new evidence that was submitted to the Appeals Council warrants remand of
this case. (See doc. 12 at 23). “‘With a few exceptions, a claimant is allowed to present new
evidence at each stage of the administrative process,’ including before the Appeals Council.”
Washington v. Soc. Sec. Admin., Comm'r, 806 F.3d 1317, 1320 (11th Cir. 2015) (quoting Ingram
v. Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)). The Appeals Council must review
evidence that is new, material, and chronologically relevant. Ingram, 496 F.3d at 1261. The court
reviews de novo whether supplemental evidence is new, material, and chronologically relevant.
Washington, 806 F.3d at 1321.

On October 5, 2016, after briefing in this case was complete, White filed a “Motion to
Remand Pursuant to Social Security Ruling 16-3p,” arguing for remand so the ALJ can
reevaluate the intensity and persistence of White’s symptoms. (Doc. 17). Upon review of the
motion and relevant Social Security Rulings, White fails to present any new evidence or identify
any manifest error of law or fact that would justify or require remand of his case for additional
consideration based on SSR. 16-3p. The Commissioner published SSR 16-3p on March 24,
2016, and explicitly established the effective date for the ruling as March 28, 2016. See SSR. 163p, 2016 WL 1237954 (March 24, 2016). The Commissioner explained the ruling replaced prior
SSR 96-7p, to eliminate the use of the term “credibility” and to “clarify that subjective symptom
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evaluation is not an examination of an individual's character.” 2016 WL 1119029 at *1. White
has pointed to no authority that persuades the undersigned that this clarification requires remand.
Because the effective date of SSR 16-3p came after the ALJ's decision, the court reviews the
case under SSR 96-7p. However, even if the ruling was retroactively applied, an evaluation of
the ALJ's decision with the clarification in mind does not require remand. The ALJ did not make
any statements to indicate he assessed the credibility of White’s character, but rather assessed the
statements he made in light of the objective medical evidence. As such, the motion, (doc. 17), is
DENIED.
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Evidence is “new” if it is not redundant of evidence already present in the record. To be
material, the evidence must be “relevant and probative so that there is a reasonable possibility that
it would change the administrative result.” Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987).
Evidence is chronologically relevant if it relates to the period on or before the ALJ's decision. 20
C.F.R. 404.970(b). A medical evaluation conducted after the ALJ's decision may be
chronologically relevant in certain circumstances if it pertains to conditions that pre-existed the
ALJ's opinion. Washington, 806 F.3d at 1322-23 (citing Boyd v. Heckler, 704 F.2d 1207, 1211
(11th Cir. 1983)). In Washington, a consultative examiner provided an opinion regarding a
claimant's mental condition. The opinion post-dated the ALJ's decision; however, the court found
the opinion was chronologically relevant because the examiner indicated in his report that he based
his opinion on the claimant's reports that “he had experienced hallucinations throughout this life”
and on the state of the claimant's cognitive abilities before the ALJ issued a decision. Id. at 1322.
In addition, the consultative examiner reviewed the claimant's “mental health treatment records
from the period before the ALJ's decision reflecting that [the claimant] repeatedly reported
experiencing auditory and visual hallucinations.” Id.
1. Medical Records from Dr. Sovic and Brookwood Medical Center
Relying on Washington, White argues the Appeals Council erred when it did not consider
medical records from Dr. Marion Sovic and Brookwood Medical Center solely because they were
dated after the ALJ’s decision. (Doc. 12 at 23 & doc. 16 at 1). In finding the records not
chronologically relevant, the Appeals Council stated:
We also looked at the Medical Records from Marion Slovic, M.D. dated from
December 2, 2014 to January 27, 2015 (15 pages) and the Medical Records from
Brookwood Medical Center dated September 4, 2014 (4 pages).
The
Administrative Law Judge decided your case through June 19, 2014. This new
information is about a later time.

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(Tr. 2). The Appeals Council did more than state the subject records were dated after June 19,
2014, but instead looked at the records and explained the “new information is about a later time.”
(Id.). Based on this language, it appears the Appeals Council considered the substance of the
record and concluded they were about a later time after the period considered by the ALJ.
Additionally, White has not explained how these records are chronologically relevant. White
points to nothing within these records to show that they are about his condition as it existed before
the ALJ’s decision.

Having reviewed these records, the undersigned agrees with the Appeals

Council. There are treatment notes from Dr. Sovic, a pain management doctor, White saw after
the ALJ’s decision and records from a September 4, 2013 admission at Brookwood Medical Center
because of back pain experienced a day after receiving an injection. (Tr. 8-27). Remand on this
basis is not warranted because it does not appear the Appeals Council relied solely on the date on
these records in determining that they were not chronologically relevant, and White has pointed to
no evidence the records relate back to the period under consideration by the ALJ.
2. Medical Records from Dr. Bowen and Imaging from Gadsden Regional
Medical Center
The Appeals Council did consider newly submitted medical records from Dr. Bowen at
Birmingham Neurosurgery & Spine Group, PC, dated April 1, 2014 to June 16, 2014, and imaging
from Gadsden Regional Medical Center, dated May 2, 2014. (Tr. 2, 5). However, after reviewing
the evidence, the Appeals Council found this evidence did not provide a basis for changing the
ALJ’s decision. (Tr. 2). When the Appeals Council considers the proffered additional evidence
and then denies review, it is not required to provide a detailed rationale for denying review.
Washington, 806 F.3d at 1321 n.5 (citing Mitchell v. Comm'r, Soc., Sec. Admin., 771 F.3d 780,
784 (11th Cir.2014)).
When a plaintiff submits additional evidence to the Appeals Council and argues to the court
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that the Appeals Council erred in denying review, a district court must determine whether the
Commissioner’s decision is supported by substantial evidence as a whole.

Ingram v.

Commissioner of Social Security, 496 F.3d 1253,1262, 1266 (11th Cir. 2007). Here, the ALJ’s
decision was based on substantial evidence, and the new evidence submitted to the Appeals
Council did not change that.
The records from Dr. Bowen indicate he treated White on April 2, 2014, May 5, 2014, May
9, 2014, and June 16, 2014. (R. 376-94). Dr. Bowen diagnosed White with “failed back
syndrome” with bilateral radicular pain radiating into lower extremities. (Tr. 376-84). When
White saw Dr. Bowen in April 2014, he reported lower back pain and rare pain in the right leg,
denied any numbness or tingling in either leg at the time, and complained of bilateral tension
headaches. (Tr. 376). As to his range of motion, Dr. Bowen indicated forward flexion of sixty
degrees, hyper-extension of thirty degrees, and right/left lateral bend of twenty degrees. (Tr. 379).
Dr. Bowen noted a normal gait and posture, as well as normal strength in White’s lower
extremities. (Tr. 379-80). Dr. Bowen ordered an MRI of White’s lumbar spine. (Tr. 380).
An MRI was conducted at Gadsden Regional Medical Center on May 2, 2014. (Tr. 389).
The MRI revealed “some scar on the left.” (Tr. 389). After reviewing the MRI, Dr. Bowen
included patient instructions “please tell him the films look normal postop. We can set up referral
. . . for [dorsal column stimulator] trial.” (Id.).
Although Dr. Bowen’s general diagnosis of “failed back syndrome” and proposal that
White try a dorsal column stimulator to treat his back pain differ from the specific diagnosis and
treatment provided by Dr. Wilson, nothing in this new evidence leads to the conclusion that the
Commissioner’s decision was not based on substantial evidence or that White’s limitations were
more severe than assessed by the ALJ. To the contrary, radiology reports the ALJ considered

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demonstrated “no significant structural abnormality just expected postoperative changes with
fusion at L5-S1,” (tr. 253), and are consistent with the MRI Dr. Bowen ordered and reviewed.
Nothing in the new evidence considered by the Appeals Council undermines the substantial
evidence which supported the ALJ’s decision. Therefore, considering the record as a whole, the
Commissioner’s decision is supported by substantial evidence.
B. The ALJ Properly Evaluated Dr. Ripka’s Opinion
White contends the ALJ failed to properly evaluate the opinion evidence provided by
consultative physician Dr. Ripka. (Doc. 12 at 29-32 & doc. 16 at 8-9). When determining the
weight to give to a physician’s opinion, an ALJ considers numerous factors, including whether the
physician examined the claimant, whether the physician treated the claimant, the evidence the
physician presents to support his or her opinion, whether the physician’s opinion is consistent with
the record as a whole, and the physician’s specialty. See 20 C.F.R. § 404.1527(c). A treating
physician’s opinion generally is entitled to more weight, and an ALJ must give good reasons for
discounting a treating physician’s opinion. See 20 C.F.R. § 404.1527(c)92). An opinion from a
non-treating physician is not entitled to any special deference or consideration. See 20 C.F.R.
§§404.1502, 404.1527(2)(c). An ALJ may discount a physician’s opinion, including a treating
physician’s opinion, when the opinion is conclusory, the physician fails to provide objective
medical evidence to support his or her opinion, the opinion is inconsistent with the record as a
whole, or the evidence otherwise supports a contrary finding. See 20 C.F.R. § 404.1527(c).
Additionally, opinions on some issues, such as whether the claimant is unable to work, 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

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C.F.R. § 404.1527(d); see SSR96-5p, 1996 WL 374183 (1996). Thus, although physicians’
opinions about what a claimant can still do or the claimant’s restrictions are relevant evidence,
such opinions are not determinative because the ALJ has the responsibility of assessing the
claimant’s RFC. See 20 C.F.R. §§ 404.1512(b)(2), 404.1513(b)(6), 404.1527(d)(2),
404.1545(a)(3), 404.1546(c); SSR 96-5p. Here, the ALJ considered the various medical opinions
in the record, and he stated good cause and reasons for the weight he assigned to each. (Tr. 36-37,
42).
In his decision, the ALJ noted Dr. Ripka evaluated White on January 22, 2014. (Tr. 36,
369-71). The ALJ observed that Dr. Ripka noted White was injured at work and diagnosed him
with a herniated nucleus pulpous. (Tr. 36, 369). The ALJ observed that White was noted to have
had a hemilaminectomy and microdiscectomy at L5-S1 on October 5, 2011, and a posterior fusion
with an interbody spacer on February 16, 2012. (Id.). White claimed to have had no relief from
pain after either surgery, and he was described as having had epidural injections that would provide
some relief, but only lasting for four days. (Tr. 36-37, 369). The ALJ noted White also alleged
migraine headaches, which he did not have before the surgeries, and excessive worries and anxiety.
(Tr. 37, 370).
The ALJ found that upon examination, Dr. Ripka reported White’s head and neck were
unremarkable. (Tr. 37, 370). The ALJ noted that Dr. Ripka found White had no limitations with
his upper extremities, he was noted as able to bend laterally ten degrees right and left without pain,
and his rotation was described as very painful. (Id.). The ALJ noted Dr. Ripka described White’s
forward flexion as limited to fifteen degrees, and he stated that White had 3/5 reflexes in the lower
extremities, the patella, and in the Achilles. (Id.). White’s sensation in his lower extremities was
grossly intact. (Id.).

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The ALJ noted Dr. Ripka completed a physical capacities evaluation. (Tr. 37, 375). Dr.
Ripka opined that White could only sit for fifteen minutes at one time, stand for fifteen minutes at
one time, and walk for fifteen minutes at one time; would be expected to lie down, sleep, or sit
with legs propped at waist level or above for zero minutes; he could perform a task for less than
fifteen minutes; and he could maintain attention and concentration for less than fifteen minutes.
(Id.).
After reviewing the record evidence, the ALJ found Dr. Ripka’s findings regarding White’s
limitations were entitled to little weight. (Tr. 42, 369-71, 375). The ALJ noted Dr. Ripka’s opinion
was not consistent with the objective medical evidence, including MRI results indicating White’s
status as post-fusion with normal alignment and intact hardware. (Tr. 42, 252). Additionally, the
ALJ noted that Dr. Ripka’s opinion was inconsistent with other medical evidence, which showed
White had 5+ or intact strength and on some occasions a steady gait. (Tr. 42, 253, 255-61, 285,
331, 333). “Generally, the more consistent an opinion is with the record as a whole, the more
weight [the ALJ] will give to that opinion.” 20 C.F.R. § 404.1527(d)(2).
Additionally, the ALJ noted that Dr. Ripka’s opinion was inconsistent with the findings of
Dr. Wilson, who recognized a 14% (total body) impairment calculation. (Tr. 42, 253). Dr. Wilson
observed that White continued to complain of pain, but he noted that postoperative plain films and
MRI scans revealed no significant structural abnormality, just expected post-operative changes
with a fusion at L5-S1. (Tr. 253). Dr. Wilson observed that the functional capacity evaluation
demonstrated White checked out in the medium category, but it was noted White only gave a fair
effort according to the examiner. (Id.). Dr. Wilson released White to return to work with
restrictions, refilling his pain medication, with White to return as needed. (Id.). The ALJ found
Dr. Wilson had a long-standing relationship with White, while Dr. Ripka’s opinion appeared to be

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based on a single examination. (Tr. 42, 369-71).
As the fact-finder, the ALJ has the duty to weigh the evidence of record, including the task
to examine the evidence and resolve conflicting reports. Wolfe v. Chater, 86 F.3d 1072, 1076
(11th Cir. 2006).

Here, the ALJ found the objective medical evidence and Dr. Wilson’s

observations as White’s treating physician were entitled to more weight than the opinion of Dr.
Ripka. (Tr. 42). For the reasons articulated above, this decision is supported by substantial
evidence.
VI. Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative record
and memoranda of the parties, the decision of the Commissioner of Social Security denying
White’s claim for a period of disability and disability insurance benefits is AFFIRMED and this
action DISMISSED WITH PREJUDICE.
DONE this 25th day of September, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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