Hargress v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION and ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED; costs are taxed to against the claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/14/2017. (AHI)

FILED
2017 Feb-14 PM 02:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JOYCE HARGRESS,
Claimant,
vs.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 4:16-cv-1079-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Joyce Hargress, commenced this action on June 30, 2016, 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”), and
thereby denying her claim for a period of disability, disability insurance, and
supplemental security income benefits.
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: (1) failed to apply Social Security Ruling 16-3p; (2)
improperly considered the opinion of her treating physician; (3) did not adequately
state reasons for finding her subjective testimony not credible; (4) failed to properly
consider newly submitted evidence; and, (5) based his finding of no disability on a
residual functional capacity determination that was not supported by substantial
evidence. Upon review of the record, the court concludes that these contentions are
without merit, and the Commissioner’s decision should be affirmed.
A.

Social Security Ruling 16-3p and Credibility
Claimant first asserts that the ALJ failed to appropriately address the intensity

and persistence of her symptoms pursuant to Social Security Ruling 16-3p, which
became effective on March 28, 2016.
Social Security Ruling 16-3p was intended to supersede former Ruling 96-7p,
and was enacted for the purpose of providing “guidance about how we evaluate
statements regarding the intensity, persistence, and limiting effects of symptoms in
disability claims under Titles II and XVI of the Social Security Act.” SSR 16-3p,
2016 WL 1119029 (March 16, 2013), at *1. Specifically, the Ruling
eliminat[ed] the use of the term “credibility” from [the Social Security
Administration’s] sub-regulatory policy, as our regulations do not use
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this term. In doing so, we clarify that subjective symptom evaluation is
not an examination of an individual’s character. Instead, we will more
closely follow our regulatory language regarding symptom evaluation.
Consistent with our regulations, we instruct our adjudicators to
consider all of the evidence in an individual’s record when they evaluate
the intensity and persistence of symptoms after they find that the
individual has a medically determinable impairment(s) that could
reasonably be expected to produce those symptoms. We evaluate the
intensity and persistence of an individual’s symptoms so we can
determine how symptoms limit ability to perform work-related activities
for an adult . . . .
....
In evaluating an individual’s symptoms, our adjudicators will not
assess an individual’s overall character or truthfulness in the manner
typically used during an adversarial court litigation. The focus of the
evaluation of an individual’s symptoms should not be to determine
whether he or she is a truthful person. Rather, our adjudicators will
focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the
individual’s symptoms and given the adjudicator’s evaluation of the
individual’s symptoms, whether the intensity and persistence of the
symptoms limit the individual’s ability to perform work-related
activities or, for a child with a title XVI disability claim, limit the child’s
ability to function independently, appropriately, and effectively in an
age-appropriate manner.
Id. at *1-2, 10 (alterations and ellipses supplied).
Claimant asserts that, even though SSR 16-3p was not adopted until after her
claim was decided, it should be applied retroactively. The retroactivity of the Rule
has not been directly addressed by any Circuit Court of Appeals, or by any district
court within this Circuit. That issue also does not need to be addressed here, because,
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even if SSR 16-3p did apply retroactively, the ALJ did not violate it in this case.
Even though the ALJ used the word “credible,”1 he did not assess claimant’s general,
or “overall” character or truthfulness. Instead, he determined, in accordance with
SSR 16-3p, whether claimant’s subjective complaints were supported by the medical
evidence and consistent with other information in the record.2 See Cole v. Colvin,
831 F.3d 411, 412 (7th Cir. 2016) (“The change in wording [from SSR 96-7p to SSR
16-3p] is meant to clarify that administrative law judges aren’t in the business of
impeaching claimants’ character; obviously administrative law judges will continue
to assess the credibility of pain assertions by applicants, especially as such assertions
often cannot be either credited or rejected on the basis of medical evidence.”)
(alteration supplied, emphasis in original).
Moreover, the ALJ’s consideration of claimant’s subjective symptoms was
consistent with applicable law. To demonstrate that pain or another subjective
symptom renders her disabled, a claimant must “produce ‘evidence of an underlying
medical condition and (1) objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (2) that the objectively determined medical
condition is of such severity that it can be reasonably expected to give rise to the
1

See Tr. 94 (“After careful consideration of the evidence, I find that the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and limiting effect of these symptoms
are not entirely credible for the reasons explained in this decision.”) (emphasis supplied).
2

See Tr. 94-96.
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alleged pain.’” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (quoting
Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). If an ALJ discredits
subjective testimony of pain, “he must articulate explicit and adequate reasons.” Hale
v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d
1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.
1986)).
The ALJ in the present case properly applied these legal principles. He found
that claimant’s medically determinable impairments could reasonably have been
expected to produce the symptoms claimant alleged, but that claimant’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not
entirely credible.3

That conclusion was in accordance with applicable law. See

Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“After considering a
claimant’s complaints of pain, the ALJ may reject them as not creditable, and that
determination will be reviewed for substantial evidence.”) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)) (emphasis supplied).
The ALJ also adequately articulated reasons to support his findings. He
reasoned that claimant had not been hospitalized or sought emergent care for her
diabetes, lumbar degenerative disease, or hip and leg osteoarthritis since her alleged
onset date, and she suffered less than disabling restrictions whenever she was
3

Tr. 94.
5

compliant with her diet and treatment plan.4 He also noted that claimant failed to list
musculoskeletal impairments in her disability report or function report that would
require a finding of greater functional limitations, and claimant had not “consistently
produced abnormal musculoskeletal or extremity examinations throughout the record
since the alleged onset date.”5 Instead, with minimal exceptions, claimant described
only mild pain to her doctors as a result of her musculoskeletal conditions, and she
retained full range of motion. Finally, the ALJ noted that an x-ray of claimant’s hip
revealed only mild degenerative joint disease, an MRI of her L4-S1 vertebrae
revealed only diffuse disc bulging with resulting mild bilateral foraminal narrowing,
and her hypertension was described in the record as “stable” and “benign.”6 All of
those conclusions are supported by substantial evidence, and they are more than
sufficient to support the ALJ’s credibility finding.
B.

Treating Physician
Claimant also asserts that the ALJ failed to give sufficient weight to the

opinion of Dr. Ochuko Odjegba, her treating physician. 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.

4

Tr. 94-95.

5

Tr. 95.

6

Id.
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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
on that issue is not a medical question, but is a decision “reserved to the
Commissioner.” 20 C.F.R. §§ 404.1527(d) & 416.927(d).
Social Security regulations also provide that, in considering what weight to
give any medical 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. §§ 404.1527(c) & 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.”).

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Dr. Odjegba completed a Physical Capacities Form on September 8, 2014. He
indicated that claimant could sit for less than thirty minutes at a time, stand for less
than fifteen minutes at a time, and walk for less than fifteen minutes at a time. During
an eight-hour day, claimant would be expected to lie down, sleep, or sit with her legs
propped up for a total of approximately six hours. Claimant could perform a task for
less than thirty minutes without needing a rest or break. She could occasionally lift
up to five pounds, but could never lift more than five pounds. Dr. Odjegba attributed
claimant’s limitations to her back and hip pain. Those limitations existed back to
January 21, 2013, claimant’s alleged disability onset date, and they were expected to
last twelve or more months.7
The ALJ afforded Dr. Odjegba’s opinion only little weight, concluding that the
opinion was
inconsistent with the treatment records. Aside from a positive left-sided
straight leg raise the claimant produced in July 2014, her treatment notes
since the alleged onset date reveal little other evidence of significant
abnormality . . . . Dr. Odjegba’s treating opinion shows more limitation
than even what the claimant alleged in her own function report . . . .
Moreover, his opinion of marked physical restriction is inconsistent with
the record when considered as a whole. Exhibit 15F characterized
claimant’s hip pain as “mild DJD.” Similarly, exhibit 16F noted “mild”
x-ray evidence [and] “mild” left hip pain . . . .8
Those conclusions are in accordance with applicable law, see Phillips, 357 F.3d at
7

Tr. 560.

8

Tr. 96 (alteration and ellipses supplied).
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1240-41, and they are supported by substantial evidence. Even though claimant
consistently complained of and received treatment for back and hip pain, the record
does not reveal any functional limitations resulting from that pain that are greater than
the ones assessed by the ALJ. The record as a whole supports the ALJ’s decision to
afford only little weight to Dr. Odjegba’s opinion.
C.

New Evidence
Claimant also asserts that the Appeals Council failed to properly consider new

evidence that was presented for the first time on appeal.
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 supplied).
Here, the Appeals Council denied claimant’s request for review of the ALJ’s
decision, stating:
In looking at your case, we considered the reasons you disagree
with the decision and the additional evidence listed on the enclosed
Order of Appeals Council.[9] We found that this information does not
9

That evidence included briefs from claimant’s attorney dated April 28, 2015, January 21,
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provide a basis for changing the Administrative Law Judge’s decision.
We also looked at 25 pages of records from Jane Teschner, MD,
dated March 2, 2015 through October 1, 2015, 10 pages of records from
Daniel Sparks, MD, dated March 2, 2015 through June 15, 2015, and 33
pages of records from Trinity Medical Center, dated July 28, 2015. The
Administrative Law Judge decided your case through February 24,
2015. This new information is about a later time. It does not affect the
decision about whether you were disabled beginning on or before
February 24, 2015.
If you want us to consider whether you were disabled after
February 24, 2015, you need to apply again. The new information you
submitted is available in your electronic file for you to use in your new
claim.10
Even if the Appeals Council erred in failing to consider the evidence listed in
the paragraphs above, any such error would be harmless, because that evidence does
not provide a basis for overturning the ALJ’s decision. Dr. Teschner’s notes indicate
that she primarily treated claimant for her diabetes, and the symptoms resulting from
that condition were not severe. With regard to claimant’s musculoskeletal conditions,
claimant consistently reported back and joint pain to Dr. Teschner, but Dr. Teschner
consistently reported that claimant’s range of motion was grossly intact, and she
showed no signs of muscle atrophy.11 Dr. Sparks’s April 6, 2015 evaluation revealed
tenderness in claimant’s thigh over her sciatic nerve and a positive left straight leg

2016, and February 3, 2016. Tr. 6, 363-82.
10

Tr. 2.

11

See Tr. 68, 73.
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raising test, but no swelling or bruising, full range of motion, and full stability.12 On
May 19, 2015, Dr. Sparks noted a positive left straight leg raising test and tenderness
in claimant’s lumbar back and thigh, but he also observed good range of motion, full
motor strength, and no clinical instability.13 A June 2, 2015 MRI of claimant’s
lumbar spine revealed a “mild broad based subligamental disc bulge at the L4-5 and
L5-S1 level without effects on the neural structures. There is mild facet arthropathy
throughout the lumbar spine.”14 The Trinity Medical Center records reveal that
claimant was seen on July 28, 2015, for a lumbar myelogram to address her
complaints of lumbar radiculopathy.15 The test revealed: “Mild multilevel facet
degenerative changes. No disk bulge, central canal stenosis, or neural foraminal
stenosis is seen at any lumbar level.”16 Like the remainder of the medical records in
claimant’s file, the records submitted to the Appeals Council indicate that claimant
experienced some musculoskeletal impairment and resulting pain, but they do not
provide any indication that claimant experiences functional impairments greater than
those assessed by the ALJ. Accordingly, the Appeals Council did not err in its
consideration of the additional medical records submitted on appeal, and, even if it

12

Tr. 44.

13

Tr. 49.

14

Tr. 50 (emphasis supplied).

15

Tr. 10-41.

16

Tr. 31 (emphasis supplied).
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did err, any such error was harmless.
D.

Substantial Evidence
The remainder of claimant’s argument about why the ALJ’s decision was not

supported by substantial evidence is difficult to discern. It appears that claimant is
arguing that the ALJ erred in not obtaining vocational expert testimony about the
number of jobs existing in the national economy that would be available to an
individual with her residual functional capacity. Vocational expert testimony was not
necessary, however, because the ALJ found claimant to be able to perform a full
range of sedentary, unskilled work,17 and Medical-Vocational Rule 201.28 dictated
a finding of not disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.28;18 20
C.F.R. § 404.1569a(b) (“When the limitations and restrictions imposed by your
impairment(s) and related symptoms, such as pain, affect only your ability to meet the
strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and
pulling), we consider that you have only exertional limitations. When your
impairment(s) and related symptoms only impose exertional limitations and your
specific vocational profile is listed in a rule contained in appendix 2 of this subpart,
we will directly apply that rule to decide whether you are disabled.”).
17

Tr. 93.

18

That rule applies because claimant is a “younger individual” with a high school education,
a work history involving non-transferable skilled or semi skilled jobs, and a limitation to the full
range of sedentary work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.28.
12

Claimant also appears to assert that the ALJ’s residual functional capacity
finding was not supported by substantial evidence because, after the ALJ rejected Dr.
Odjegba’s assessment of disabling limitations, there was no longer a medical
assessment to support the ALJ’s decision. As an initial matter, it is the ALJ’s
responsibility — not that of a physician — to determine a claimant’s residual
functional capacity.

See 20 C.F.R. § 404.1546(c) (“If your case is at the

administrative law judge hearing level or at the Appeals Council review level, the
administrative law judge or the administrative appeals judge at the Appeals Council
(when the Appeals Council makes a decision) is responsible for assessing your
residual functional capacity.”). See also Robinson v. Astrue, 365 F. App’x 993, 999
(11th Cir. 2010) (“We note that the task of determining a claimant’s residual
functional capacity and ability to work is within the province of the ALJ, not of
doctors.”). It is true that the ALJ
has an obligation to develop a full and fair record, even if the claimant
is represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981). The ALJ is not required to seek additional
independent expert medical testimony before making a disability
determination if the record is sufficient and additional expert testimony
is not necessary for an informed decision. Wilson v. Apfel, 179 F.3d
1276, 1278 (11th Cir. 1999) (holding the record, which included the
opinion of several physicians, was sufficient for the ALJ to arrive at a
decision); Holladay v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988)
(holding the ALJ must order a consultative exam when it is necessary
for an informed decision).

13

Nation v. Barnhart, 153 F. App’x. 597, 598 (11th Cir. 2005) (emphasis supplied).
Furthermore, claimant bears the ultimate burden of producing evidence to support her
disability claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(citing 20 C.F.R. §§ 404.1512(a), (c)). The court concludes that the record in this
case was sufficient to give substantial support to the ALJ’s decision, even after the
ALJ rejected Dr. Odjegba’s assessment. The ALJ was not required to match his
residual functional capacity finding to a form filled out by a treating or examining
physician.
E.

Conclusion and Order
In summary, the court concludes the ALJ’s decision was based upon substantial

evidence and in accordance with applicable legal standards. Accordingly, the
decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The
Clerk is directed to close this file.
DONE this 14th day of February, 2017.

______________________________
United States District Judge

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