Macon v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 3/5/2018. (KEK)

FILED
2018 Mar-05 PM 02:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

TERESA MACON,
Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 4:16-cv-01085-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Teresa Macon seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied Ms. Macon’s claims for a period of disability, disability
insurance benefits, and supplemental security income. After careful review, the
Court affirms the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Ms. Macon applied for a period of disability, disability insurance benefits

and, supplemental security income on February 20, 2013. (Doc. 6-5, pp. 2-3). Ms.
Macon alleges that her disability began on September 15, 2012. (Doc. 6-5, pp. 23). The Commissioner initially denied Ms. Macon’s claims on May 31, 2013.

(Doc. 6-5, pp. 2-3). Ms. Macon requested a hearing before an Administrative Law
Judge (ALJ). (Doc. 6-6, p. 2). The ALJ issued an unfavorable decision on
October 30, 2014. (Doc. 6-4, pp. 11-24). On April 29, 2016, the Appeals Council
declined Ms. Macon’s request for review (Doc. 6-3, p. 2), making the
Commissioner’s decision final and a proper candidate for this Court’s judicial
review. See 42 U.S.C. §§ 405(g), 1383(c).
II.

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 [his] ‘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
“Substantial evidence is more than a

to support the ALJ’s factual findings.

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 evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
2

supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”

Costigan v.

Comm’r, Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
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).
III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178.

3

In this case, the ALJ found that Ms. Macon has not engaged in substantial
gainful activity since September 15, 2012, the alleged onset date. (Doc. 6-4, p.
13). The ALJ determined that Ms. Macon suffers from the following severe
impairments:

insulin

dependent

diabetes

mellitus,

diabetic

neuropathy,

hypertension, obesity, metabolic syndrome, and status post left nephrectomy.
(Doc. 6-4, p. 13). The ALJ concluded that Ms. Macon has the following nonsevere impairments: depression, hyperlipidemia, and lumbago. (Doc. 6-4, pp. 1416). Based on a review of the medical evidence, the ALJ concluded that Ms.
Macon does not have an impairment or combination of impairments that meets or
medically equals the severity of any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Doc. 6-4, pp. 16-18).
In light of Ms. Macon’s impairments, the ALJ evaluated Ms. Macon’s
residual functional capacity or RFC. The ALJ determined that Ms. Macon has the
RFC to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that she can engage in no more than frequent pushing/pulling
with the bilateral lower extremities; she is precluded from climbing
ladders/ropes/scaffolds; she is precluded from concentrated exposure
to extreme cold, extreme heat, humidity, or pulmonary irritants; she is
precluded work around unprotected heights; and she should avoid
hazardous moving machinery.

(Doc. 6-4, p. 18).

4

Based on this RFC, the ALJ concluded that Ms. Macon is not able to
perform her past relevant work as a store laborer, poultry deboner, hand packager,
teacher’s aide, or cashier.

(Doc. 6-4, p. 22).

Relying on testimony from a

vocational expert, the ALJ found that jobs exist in the national economy that Ms.
Macon can perform, including telephone quotation clerk, charge account clerk, and
addressing clerk. (Doc. 6-4, p. 23). Accordingly, the ALJ determined that Ms.
Macon has not been under a disability within the meaning of the Social Security
Act. (Doc. 6-4, p. 24).
IV.

ANALYSIS
Ms. Macon argues that she is entitled to relief from the ALJ’s decision

because the Appeals Council failed to properly consider new evidence, the ALJ did
not properly evaluate the medical opinion evidence, the ALJ did not consider all of
Ms. Macon’s impairments or combination of impairments, and the ALJ did not
properly evaluate Ms. Macon’s subjective complaints of pain.
A.

Ms. Macon’s New Evidence Does Not Warrant Remand.

While her case was pending before the Appeals Council, Ms. Macon
submitted additional evidence for the Appeals Council’s review, including
treatment notes from visits to CED Mental Health dated December 11, 2014
through January 13, 2016. (Doc. 6-3, pp. 9-29, 33-53). Ms. Macon argues that the

5

Appeals Council erroneously failed to consider this new evidence that post-dates
the ALJ’s May 30, 2014 decision. (Doc. 8, pp. 20-31; Doc. 10, pp. 1-4).
“‘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.

supplemental

evidence

is

new,

The Court reviews de novo whether

material,

and

chronologically

relevant.

Washington, 806 F.3d at 1321.
Ms. Macon contends that the Appeals Council did not consider whether her
new evidence is chronologically relevant. (Doc. 8, p. 21). Her argument rests on
this paragraph from the Appeals Council’s decision:
We also looked at medical records from CED Mental Health dated
December 11, 2014, through March 3, 2015 – 21 pages and medical
records from CED Mental Health dated April 29, 2015, through
January 13, 2016 – 21 pages. The Administrative Law Judge decided
your case through October 30, 2014. This new information is about a
later time. Therefore, it does not affect the decision about whether
you were disabled begging on or before October 30, 2014.

(Doc. 8, p. 21) (quoting Doc. 6-3, p. 3) (emphasis in Appeals Council’s decision).
The Eleventh Circuit Court of Appeals rejected a similar argument in Hargress v.
6

Soc. Sec. Admin., Comm’r, --- F.3d ----, 2018 WL 1061567 (11th Cir. Feb. 27,
2018). The Eleventh Circuit stated:
the record does not support Hargress’s claim that the Appeals Council
refused to consider her new evidence—the medical records from Drs.
Teschner and Sparks and from Trinity Medical Center dated after the
ALJ’s hearing decision—without considering whether it was
chronologically relevant. The Appeals Council stated that the new
records were “about a later time” than the ALJ’s February 24, 2015
hearing decision and “[t]herefore” the new records did “not affect the
decision about whether [Hargress was] disabled beginning on or
before February 24, 2015.” In short, the Appeals Council declined to
consider these new medical records because they were not
chronologically relevant. The Appeals Council was not required to
give a more detailed explanation or to address each piece of new
evidence individually. See Mitchell v. Comm'r, Soc. Sec. Admin., 771
F.3d 780, 784 (11th Cir. 2014).
2018 WL 1061567 at *6. The rationale in Hargress applies equally here.
Moreover, although the CED Mental Health treatment records constitute
“new evidence” in that the records contain information that does not appear
elsewhere in the administrative record, the new mental health records do not assist
Ms. Macon because the evidence is not chronologically relevant. Evidence is
chronologically relevant if it relates to the period on or before of the ALJ’s
decision. 20 C.F.R. § 404.970(b). A medical evaluation conducted after the ALJ’s
decision may be chronologically relevant if it pertains to conditions that pre-dated
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 post7

dated the ALJ’s decision, but 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 his life,” the 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,” and the record contained no evidence that the
claimant’s condition had declined following the ALJ’s decision. Washington, 806
F.3d at 1322; see Hargress, 2018 WL 1061567 at *6 (stating that in Washington,
“[t]his Court concluded that the psychologist’s materials were chronologically
relevant because: (1) the claimant described his mental symptoms during the
relevant period to the psychologist, (2) the psychologist had reviewed the
claimant’s mental health treatment records from that period, and (3) there was no
evidence of the claimant’s mental decline since the ALJ’s decision.”).
Unlike the consultative examiner’s report in Washington, Ms. Macon’s new
evidence does not demonstrate that the providers who treated her after the ALJ
rendered his decision reviewed treatment records that pre-date the ALJ’s decision
and speak to Ms. Macon’s mental health condition during the relevant time period.
(Doc. 6-3, pp. 9-29, 33-53). The therapists’ and physicians’ notes appear to be
based on their review of Ms. Macon’s condition between December 11, 2014 and
January 13, 2016 and on her reports of her mental health history from a period that
8

pre-dates the relevant period relating to her benefits application. (Doc. 6-3, pp. 929, 33-53).1 In addition, it appears that many of the mental health symptoms for
which Ms. Macon received treatment following the ALJ’s decision relate to the
unfortunate death of her fiancé shortly before the ALJ denied her application for
benefits. (See, e.g., Doc. 6-3, pp. 40, 49). The records on which Ms. Macon relies
suggest that her mental health deteriorated after the ALJ issued his opinion.
Therefore, Ms. Macon’s “new evidence was not chronologically relevant,” and
“the Appeals Council was not required to consider it.”

Hargress, 2018 WL

1061567, at *7.
After the parties submitted their initial briefs, Ms. Macon filed a notice of
supplemental authority in which she contends that her new evidence is
chronologically relevant in light of the Eleventh Circuit’s unpublished decision in
Hunter v. Soc. Sec. Admin., Comm’r, 705 Fed. Appx. 936 (11th Cir. 2017). (Doc.
12). Hunter does not assist Ms. Macon. In Hunter, the Eleventh Circuit held that
opinions contained in evidence that post-dated the ALJ’s decision were
chronologically relevant because the psychologist “reviewed [the claimant’s]
medical records from the period before the ALJ’s decision in preparing the
evaluation,” and the psychologist “considered [the claimant’s] statements about the
same period, including her history of panic attacks.” Hunter, 705 Fed. Appx. at

1

Ms. Macon reported suicide attempts in approximately 2000 and 2008. (Doc. 6-3, p. 49).
9

940. In addition, the psychologist explicitly stated that his opinions related back to
the date of the ALJ’s decision. Hunter, 705 Fed. Appx. at 940. Unlike the
evaluation in Hunter, there is no evidence that Ms. Macon’s mental health
treatment providers reviewed her medical records from the relevant period or relied
on reports of symptoms from the relevant period. Moreover, unlike the evaluation
in Hunter, there is no explicit statement in the CED Mental Health Records
indicating that the evaluations relate back to the date of the ALJ’s decision. (Doc.
6-3, pp. 9-29, 33-53). Therefore, Hunter is not persuasive.
B.

The ALJ Properly Evaluated the Opinion Evidence.

“[T]he ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citing
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)); see also
McClurkin v. Social Sec. Admin., 625 Fed. Appx. 960, 962 (11th Cir. 2015)
(same). An ALJ must give considerable weight to a treating physician’s medical
opinion if the opinion is supported by the evidence and consistent with the doctor’s
own records. See Winschel, 631 F.3d at 1179. An ALJ may refuse to give the
opinion of a treating physician “substantial or considerable weight . . . [if] ‘good
cause’ is shown to the contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004). Good cause exists when “(1) [the] treating physician’s opinion
was not bolstered by the evidence; (2) [the] evidence supported a contrary finding;
10

or (3) [the] treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips, 357 F.3d at 1240-41; see also Crawford,
363 F.3d at 1159. “The ALJ must clearly articulate the reasons for giving less
weight to a treating physician’s opinion, and the failure to do so constitutes error.”
Gaskin, 533 Fed. Appx. at 931.
The opinion of a one-time examiner is not entitled to deference. McSwain v.
Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (citing Gibson v. Heckler, 779 F.2d
619, 623 (11th Cir. 1986)); see also Eyre v. Comm’r, Soc. Sec. Admin., 586 Fed.
Appx. 521, 523 (11th Cir. 2014) (“The ALJ owes no deference to the opinion of a
physician who conducted a single examination: as such a physician is not a treating
physician.”).
1.

Substantial Evidence Supports the ALJ’s Decision to Give
Little Weight to Dr. Odjegba’s Opinion.

On May 23, 2014, for purposes of Ms. Macon’s disability evaluation, Ms.
Macon’s treating physician, Dr. Ochuko Odjegba, completed a physical capacities
evaluation of Ms. Macon. (Doc. 6-11 p. 19). Dr. Odjegba opined that Ms. Macon
can sit for three hours at a time, stand for two hours at a time, and walk for 15
minutes at a time. (Doc. 6-11 p. 19). According to Dr. Odjegba, Ms. Macon must
lie down, sleep, or sit with her legs propped above waist level for four hours in an
8-hour work day. (Doc. 6-11 p. 19). In addition, Dr. Odjegba stated that Ms.
Macon can perform tasks for one hour before needing a rest or break. (Doc. 6-11
11

p. 19). Dr. Odjegba explained that the following conditions caused Ms. Macon’s
limitations:

bilateral

lower

extremity

peripheral

neuropathy,

unilateral

nephrectomy, and diabetes. (Doc. 6-11 p. 19).
The ALJ gave little weight to Dr. Odjegba’s opinion because “[i]t is not
consistent with or supported by [Dr. Odjegba’s] own treatment notes.” (Doc. 6-4,
p. 20). The ALJ explained that “Dr. Odjegba’s clinical findings and generally
routine and conservative treatment of [Ms. Macon’s] conditions in no way support
the extreme limitations set forth in his opinion.” (Doc. 6-4, p. 20).
Ms. Macon saw Dr. Odjegba approximately 20 times between December
2010 and May 2014. (Doc. 6-9, pp. 18, 23, 27, 31, 34, 37, 41, 50; Doc. 6-10, pp.
55, 59, 63, 69, 73, 80; Doc. 6-11, pp. 20, 26, 31, 36, 41, 47, 52). On a handful of
occasions, Dr. Odjegba explained that Ms. Macon’s diabetes was uncontrolled
because she was not compliant with her medication and home testing (Doc. 6-9,
pp. 18, 20; Doc. 6-10, pp. 63, 80), but many of Dr. Odjegba’s treatment notes
indicate that Ms. Macon was compliant on her medication and that she had
improved diabetes readings (Doc. 6-9, p. 27, 31; Doc. 6-10, pp. 55, 59, 68; Doc. 611, pp. 26, 36, 41). By April and May 2014, Ms. Macon’s diabetes was better
controlled and stable. (Doc. 6-11, pp. 47, 52).
Starting in 2013, Ms. Macon intermittently complained of numbness and
tingling in her feet, and Dr. Odjegba diagnosed bilateral neuropathy. (Doc. 6-9, p.
12

50; Doc. 6-11, pp. 26, 31, 52). But Dr. Odjegba’s treatment notes do not contain
limitations associated with Ms. Macon’s neuropathy or provide for treatment or
therapy aside from medication. (Doc. 6-9, pp. 50-53; Doc. 6-11, pp. 26-35, 52-56).
In addition, with the exception of reports of back pain and tenderness on three
occasions (Doc. 6-10, pp. 63, 68; Doc. 6-11, p. 41), Ms. Macon’s records reflect
that her physical examinations typically had benign results, (Doc. 6-9, pp. 29, 32,
35, 39, 43-44, 52; Doc. 6-10, pp. 56-57, 65, 71, 76, 82-83; Doc. 6-11, pp. 23, 34,
39, 44, 50, 55).
Accordingly, the Court finds that substantial evidence supports the ALJ’s
decision to give Dr. Odjegba’s opinion little weight. See e.g., Crawford, 363 F.3d
at 1159-61 (finding that substantial evidence supported the ALJ’s decision to
discredit the opinions of the claimant’s treating physicians where those physicians’
opinions regarding the claimant’s disability were inconsistent with the physicians’
treatment notes and unsupported by the medical evidence); Roth v. Astrue, 249
Fed. Appx. 167, 168 (11th Cir. 2007) (finding that substantial evidence supported
the ALJ’s determination that the treating physician’s opinion “should not be
assigned substantial weight because it was inconsistent with the record as a whole
and not supported by the doctor’s own medical records.”). Based on the applicable
legal standard, the Court must accept the weight that the ALJ assigned to Dr.
Odjegba’s assessments, even though there is some evidence in the record that
13

supports those assessments. See Lawton v. Comm’r of Soc. Sec., 431 Fed. Appx.
830, 833 (11th Cir. 2011) (“While the record does contain some evidence that is
contrary to the ALJ’s determination, we are not permitted to reweigh the
importance attributed to the medical evidence.”).
2.

Substantial Evidence Supports the ALJ’s Decision to Give
Dr. Warren’s Opinion Little Weight.

On May 30, 2014, Dr. Jarrod Warren examined Ms. Macon at her attorney’s
request. (Doc. 6-11, p. 61). Ms. Macon reported a history of diabetes, unilateral
kidney, hypertension, lower extremity edema, and low back pain. (Doc. 6-11, p.
61). Ms. Macon complained of weight gain, fatigue, weakness, insomnia, vision
impairment, dryness of mouth, lower extremity edema, shortness of breath,
orthopnea, wheezing, nausea, heartburn, nocturia, night sweats, headaches, joint
pain, easy bruising, rash, neuropathy, dizziness, anxiety, excessive worries,
depression, and agitation. (Doc. 6-11, p. 62).
During the examination, Ms. Macon was in no acute distress, her neck was
supple, and her heart displayed a regular rate and rhythm. (Doc. 6-11, p. 62). Ms.
Macon’s lungs were clear, and she showed no increased difficulty breathing. (Doc.
6-11, p. 62). Her extremities displayed no clubbing or cyanosis. (Doc. 6-11, p.
63). Ms. Macon had no focal deficits, and her cranial serves were intact. (Doc. 611, p. 63). Ms. Macon had normal reflexes and normal vibratory and temperature
sensations. (Doc. 6-11, p. 63). Dr. Warren noted that Ms. Macon had “[e]arly
14

chronic stasis dermatitis changes” in both legs “with darkening of the skin.” (Doc.
6-11, p. 63). Ms. Macon had full rotational movement and normal forward and
lateral flexion in her neck. (Doc. 6-11, p. 63). Ms. Macon’s back had normal
flexion, minimally reduced extension, and minimal decreased rotational movement
to the left with pain. (Doc. 6-11, p. 63). Ms. Macon had 5/5 grip strength in her
upper extremities and 4/5 strength in her lower extremities. (Doc. 6-11, p. 63).
Based on his examination, Dr. Warren diagnosed uncontrolled diabetes,
uncontrolled hypertension, peripheral neuropathy, unilateral kidney (with
suspected early chronic renal insufficiency), chronic lower extremity edema,
chronic lumbago, migraine headaches, tobacco abuse disorder, morbid obesity,
GERD, and dyslipidemia. (Doc. 6-11, p. 64). Dr. Warren explained that:
Ms. Macon has numerous uncontrolled and progressive medical
issues. The combination of diabetes, [hypertension], and
neuropathy are her primary concerns. In addition to this, her lower
extremity edema brings her the most discomfort. She has required
increasing doses of insulin to attempt to manage her diabetes. I
suspect that her dietary compliance is minimal, given her size.
With the development of her worsening renal function, I suspect
that her poorly controlled diabetes, hypertension, weight, etc. is
starting to show its effects on her single kidney. The longer these
symptoms are remain poorly controlled, the further damage she is
likely to acquire.
She reports some chronic low back pain that she has contributed
[sic] to arthritis. She only treats this with over the counter
medications at present.
15

It is difficult to completely ascertain the true time frame of current
limitations. Her disease processes have slowly progressed over the
past several years, and have been most pronounced over the last 2
years.

(Doc. 6-11, p. 64).
Dr. Warren also completed an undated physical capacities evaluation on Ms.
Macon’s behalf. (Doc. 6-11, p. 60). Dr. Warren opined that Ms. Macon can sit for
three to four hours at a time, stand for two hours at a time, and walk for 15 minutes
at a time. (Doc. 6-11, p. 60). According to Dr. Warren, Ms. Macon must lie down,
sleep, or sit with her legs propped at waist level or above for three to four hours in
an 8-hour work day. (Doc. 6-11, p. 60). Dr. Warren opined that Ms. Macon can
perform a task for one hour before needing a rest or break. (Doc. 6-11, p. 60). Dr.
Warren stated that Ms. Macon’s lower extremity peripheral neuropathy,
uncontrolled diabetes, uncontrolled hypertension, and lower extremity edema
cause these limitations. (Doc. 6-11, p. 60).
The ALJ assigned little weight to Dr. Warren’s opinion because the opinion
“is not consistent with or supported by the record as a whole, specifically Dr.
Odjegba’s clinical findings and generally routine and conservative treatment of
[Ms. Macon’s] conditions.” (Doc. 6-4, p. 21). The ALJ stated that “[t]he objective
medical evidence in the record in no way support[s] the extreme limitations set
forth in [Mr. Warren’s] opinion.” (Doc. 6-4, p. 21).
16

Dr. Warren’s opinion is nearly identical to Dr. Odjegba’s opinion. For the
same reasons that, on the whole, Dr. Odjegba’s treatment notes do not support his
opinion, the record does not support the limitations that Mr. Warren identified in
the physical capacities evaluation which he completed. See supra pp. 11-12. In
addition, Dr. Warren’s examination findings do not support his opinion. Notably,
Ms. Macon had 4/5 strength in her lower extremities, and her lower extremities had
normal reflexes and normal vibratory and temperature sensations. (Doc. 6-11, p.
63). Also, although Dr. Warren explained that Ms. Macon’s lower extremity
edema causes her the most discomfort, Dr. Warren made no clinical or
examination finding of edema, and Ms. Macon’s treatment notes from her visits
with Dr. Odjegba demonstrate that she had edema in her lower extremities on only
one occasion in March 2011. (Doc. 6-9, p. 32; Doc. 6-11, pp. 62-64). Therefore,
substantial evidence supports the ALJ’s decision to give little weight to Dr.
Warren’s opinion. See e.g., McCloud v. Barnhart, 166 Fed. Appx. 410 (11th Cir.
2006) (“The ALJ may reject the opinion of any physician when the evidence
supports a contrary conclusion.”).
C.

The ALJ Properly Considered Ms. Macon’s Severe Impairments.

At step two, the ALJ concluded that Ms. Macon has the following severe
impairments:

insulin

dependent

diabetes

mellitus,

diabetic

neuropathy,

hypertension, obesity, metabolic syndrome, and status post left nephrectomy.
17

(Doc. 6-4, p. 13). Ms. Macon argues that the ALJ erred by failing to find other
severe impairments including depression, fatigue, and insomnia. (Doc. 8, pp. 3940). Ms. Macon’s argument fails for two reasons.
First, “step two requires only a finding of ‘at least one’ severe impairment to
continue on to the later steps.” Tuggerson-Brown v. Comm’r of Soc. Sec., 572 Fed.
Appx. 949, 951 (11th Cir. 2014) (quoting Jamison v. Bowen, 814 F.2d 585, 588
(11th Cir. 1987)); see also Packer v. Comm’r of Soc. Sec., 542 Fed. Appx. 890,
892 (11th Cir. 2013) (“[T]he ALJ determined at step two that at least one severe
impairment existed; the threshold inquiry at step two therefore was satisfied.
Indeed, since the ALJ proceeded beyond step two, any error in failing to find that
Packer suffers from the additional severe impairments of degenerative joint disease
of the right knee or varicose veins would be rendered harmless.”). As noted, based
on his review of the record in Ms. Macon’s case, the ALJ identified six severe
impairments.

Therefore, the ALJ’s failure to identify other alleged severe

impairments – if there are any – is harmless error.
Second, with respect to fatigue and insomnia, Ms. Macon did not raise these
impairments as a basis for her disability. (Doc. 6-4, pp. 40-41; Doc. 6-8, p. 23).
Because Ms. Macon did not raise fatigue and insomnia as a basis for her disability,
the ALJ had no obligation to consider them. See Robinson v. Astrue, 365 Fed.
Appx. 993, 995 (11th Cir. 2010) (finding that the claimant “did not allege that she
18

was disabled due to CFS either when she filed her claim or at her May 2006
hearing.

Consequently, the ALJ had no duty to consider Robinson’s CFS

diagnosis.”).
D.

The ALJ Properly Considered Ms. Macon’s Combination of
Impairments.

Ms. Macon contends that the ALJ did not consider the combined effects of
her impairments. (Doc. 8, pp. 40-42). When an ALJ finds several impairments,
the ALJ must consider the impairments in combination. The Eleventh Circuit has
held that an ALJ satisfies this duty by stating that he considered whether the
claimant suffered from any impairment or combination of impairments. See e.g.,
Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002) (reversing a district
court’s determination that an ALJ did not consider or discuss the cumulative
effects of a claimant’s impairments where the ALJ explicitly stated that the
claimant did not have “an impairment or combination of impairments listed in, or
medically equal to one listed” in the regulations); Hutchinson v. Astrue, 408 Fed.
Appx. 324, 327 (11th Cir. 2011) (finding that the ALJ’s statement that [claimant]
“did not have an ‘impairment, individually or in combination’ that met one of the
listed impairments . . . shows that the ALJ considered the combined effects of
[claimant’s] impairments during her evaluation”); see also Robinson v. Comm’r of
Social Sec., 649 Fed. Appx. 799, 801 (11th Cir. 2016) (“[W]e may conclude that
an ALJ properly considered a combination of impairments if the ALJ stated that
19

the [claimant] is not suffering from any impairment or a combination of
impairments of sufficient severity.”).
In this case, the ALJ explicitly stated that Ms. Macon does not have an
impairment or combination of impairments that meets or medically equals one of
the listed impairments. (Doc. 6-4, p. 16). This statement demonstrates that the
ALJ considered the combined effects of Ms. Macon’s impairments.
E.

Substantial Evidence Supports the ALJ’s Analysis of Ms. Macon’s
Subjective Complaints of Pain.

Ms. Macon argues that the ALJ did not properly evaluate her subjective
complaints of pain because the ALJ did not follow SSR 16-3p, the ALJ failed to
state adequate reasons for rejecting Ms. Macon’s testimony about the limiting
effects of her pain, and the ALJ drew adverse inferences from Ms. Macon’s lack of
treatment for her kidney disease. The Court disagrees.
1.

SSR 16-3p Does Not Apply Retroactively.

Ms. Macon asks the Court to remand this action to the Commissioner, so
that the ALJ may reconsider her subjective complaints of pain pursuant to Social
Security Ruling 16-3p. (Doc. 8, pp. 43-46). On March 28, 2016, SSR 16-3p
superseded SSR 96-7p, the ruling concerning subjective complaints of pain that
was in effect when the ALJ issued a decision in this case. See 2016 WL 1237954,
at *1.

Ms. Macon argues that SSR 16-3p applies retroactively to the ALJ’s

October 30, 2014 decision and that the ALJ must evaluate her subjective
20

complaints consistent with the new ruling. (Doc. 8, p. 43). Ms. Macon’s argument
is foreclosed by the Eleventh Circuit’s decision in Hargress v. Soc. Sec. Admin.,
Comm’r, --- F.3d ----, 2018 WL 1061567 (11th Cir. Feb. 27, 2018). In Hargress,
the claimant argued that the remand was appropriate because the ALJ did not
evaluate the intensity, persistence, and limiting effects of her symptoms pursuant to
SSR 16-3p. Hargress, 2018 WL 1061567, at *4. The Eleventh Circuit disagreed,
explaining:
SSR 16-3p rescinded SSR 96-7p, which provided guidance on how to
evaluate the credibility of a claimant’s statements about subjective
symptoms like pain. See SSR 16-3p, 81 Fed. Reg. 14166, 14167
(March 9, 2016); SSR 96-7p, 61 Fed. Reg. 34,483 (June 7, 1996). The
new ruling eliminated the use of the term “credibility” in the subregulatory policy and stressed that when evaluating a claimant’s
symptoms the adjudicator will “not assess an individual’s overall
character or truthfulness” but instead “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. . . .” SSR 163p, 81 Fed. Reg. 14166, 14171. SSR 16-3p further explains that
adjudicators will consider whether the “individual’s statements about
the intensity, persistence, and limiting effects of symptoms are
consistent with the objective medical evidence and other evidence of
record.” Id. at 14170.
Hargress, 2018 WL 1061567, at *4. The Eleventh Circuit continued:
[T]he U.S. Supreme Court has held that administrative rules generally
are not applied retroactively. See Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208, 109 S. Ct. 468, 471 (1988) (“Retroactivity is not
favored in the law. . . . and administrative rules will not be construed
to have retroactive effect unless their language requires this result.”).
21

SSR 16-3p contains no language suggesting, much less requiring,
retroactive application. Indeed, SSR 16-3p explicitly states that it
became effective on March 28, 2016, which “actually points the other
way.” See Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1351
(11th Cir. 2005) (declining to apply state agency rule retroactively
where the rule expressly provided an effective date, explaining that
“[t]here is no point in specifying an effective date if a provision is to
be applied retroactively”). Thus, SSR 16-3p applies only
prospectively and does not provide a basis for remand.
Hargress, 2018 WL 1061567, at *5. Consistent with Hargress, the Court finds
that SSR 16-3p does not apply retroactively to the ALJ’s October 30, 2014
decision.
2.

The ALJ Properly Evaluated Ms. Macon’s Subjective
Complaints of Pain.

“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.’”
Zuba-Ingram v. Commissioner of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir.
2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam)). A claimant’s testimony coupled with evidence that meets this standard
“is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (citation omitted). If an ALJ discredits a claimant’s
subjective testimony, then the ALJ “must articulate explicit and adequate reasons
22

for doing so.” Wilson, 284 F.3d at 1225. “While an adequate credibility finding
need not cite particular phrases or formulations[,] broad findings that a claimant
lacked credibility . . . are not enough. . . .” Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995) (per curiam); see SSR 96-7p, 1996 WL 374186 at *2 (“The
determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and the reasons for that
weight.”).
During her administrative hearing, Ms. Macon testified that she cannot work
because she has uncontrolled diabetes, high blood pressure, and swelling and “a lot
of pain” in her legs. (Doc. 6-4, p. 41).

Ms. Macon also stated that she suffers

from depression and headaches. (Doc. 6-4, p. 41).
Ms. Macon explained that she must elevate her legs “about four or five
hours out of the day.” (Doc. 6-4, p. 43). Elevating her legs helps the swelling, but
if Ms. Macon stands again for three or four hours, her legs “swell right back up
again.” (Doc. 6-4, p. 43). Ms. Macon testified that she can stand for about 15 to
20 minutes before she experiences “sharp pains up [her] legs,” and her legs start
aching. (Doc. 6-4, p. 44). Her leg pain interferes with Ms. Macon’s ability to
sleep. (Doc. 6-4, p. 45).
23

In a function report that she completed in March 2013, Ms. Macon stated
that she has trouble lifting, squatting, bending, standing, walking, kneeling, stair
climbing, seeing, completing tasks, concentrating, and using her hands. (Doc. 6-8,
p. 19). Ms. Macon also explained that her conditions make her weak, tired, and
dizzy. (Doc. 6-8, p. 19).
The ALJ summarized Ms. Macon’s testimony. (Doc. 6-4, p. 19). The ALJ
properly recited the pain standard and stated:
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence, and limiting effects
of these symptoms are not entirely credible for the reasons explained
in this decision. I have given the claimant the benefit of doubt and
more than fully accounted for her credible symptoms by limiting her
to sedentary work and further limiting her use of her bilateral lower
extremities. In addition, I have accommodated her symptoms and
any medication side effects with additional environmental
restrictions.
(Doc. 6-4, p. 22). Ms. Macon argues that “[t]he ‘reasons’ set out in the body of the
decision by the ALJ are not adequate reasons for finding [Ms. Macon] not credible,
and the ALJ failed to modify the residual functional capacity for what he called
[Ms. Macon’s] ‘credible symptoms.’” (Doc. 8, p. 50). The Court is not persuaded.
The ALJ reviewed the objective medical evidence and Ms. Macon’s daily
activities as part of his evaluation of her subjective complaints of pain, and
24

substantial evidence supports the ALJ’s decision that Ms. Macon’s “alleged
inability to perform all substantial gainful activity simply is not corroborated by
the evidence in the record considered as a whole.” (Doc. 6-4, p. 22).
With respect to Ms. Macon’s testimony about her diabetic neuropathy and
the corresponding swelling and pain in her legs, the ALJ noted that none of Dr.
Odjegba’s treatment notes “include recommendations that [Ms. Macon] elevate her
legs.” (Doc. 6-4, p. 16; see also e.g., Doc. 6-9, pp. 50-53; Doc. 6-11, pp. 26-35,
52-56). The ALJ also explained that “the record clearly reflects” that Ms. Macon’s
diabetes and high blood pressure “are better controlled and stable with
compliance.” (Doc. 6-4, p. 20; see also Doc. 6-9, pp. 18, 20, 27, 31; Doc. 6-10, pp.
55, 59, 63, 68, 80; Doc. 6-11, pp. 26, 36, 41). Substantial evidence supports the
ALJ’s decision to discredit Ms. Macon’s testimony regarding her diabetic
neuropathy symptoms because Ms. Macon’s subjective complaints of pain are
inconsistent with the objective medical evidence. See Duval v. Comm’r of Soc.
Sec., 628 Fed. Appx. 703, 712 (11th Cir. 2015) (“The ALJ explained that Mr.
Duval’s testimony was not credible to the extent it was unsupported by the
objective medical evidence and then discussed at length why similar opinions from
Mr. Duval’s treating medical providers were unsupported by the record. From this
discussion, we can clearly infer what testimony from Mr. Duval the ALJ found
lacking in credibility and why it was discredited.”)
25

Regarding Ms. Macon’s daily activities, the ALJ noted that Ms. Macon is
capable of walking up to half a mile; she has no problems with personal care; she
prepares meals and performs household chores; she goes outside every day, shops,
reads, watches television, spends time with others, and goes to church once a week.
(Doc. 6-4, p. 19; see also Doc. 6-8, pp. 14-19). The ALJ concluded that “although
[Ms. Macon] indicated some limitations with respect to her daily activities, she
described daily activities that were not as limited as one would expect given her
allegations of total disability.” (Doc. 6-4, p. 19). The Eleventh Circuit has noted
that “participation in everyday activities of short duration” does not necessarily
disqualify a claimant from disability. Lewis v. Callahan, 125 F.3d 1436, 1441
(11th Cir. 1997). But the regulations expressly permit an ALJ to consider a
claimant’s activities of daily living when assessing a claimant’s subjective
complaints of pain. See 20 C.F.R. §§ 404.1529(c)(2)(3), 416.929(c)(2)(3). The
Court finds no reversible error in the ALJ’s consideration of Ms. Macon’s
activities of daily living. See Carman v. Astrue, 352 Fed. Appx. 406, 408 (11th
Cir. 2009) (“The ALJ articulated various inconsistencies in Carman’s evidence that
a reasonable person could conclude supported the ALJ’s finding that Carman’s
subjective complaints of pain were not entirely credible.”).
Contrary to Ms. Macon’s assertion, the ALJ modified his residual functional
capacity assessment to account for Ms. Macon’s credible symptoms by limiting her
26

to sedentary work. The ALJ found that Ms. Macon has the residual functional
capacity to perform sedentary work “except that she can engage in no more than
frequent pushing/pulling with bilateral lower extremities.”

(Doc. 6-4, p. 18).

Based on this statement, Ms. Macon contends that the ALJ’s residual functional
capacity determination “provides no additional restrictions to the push/pull aspect
of the sedentary residual functional capacity.” (Doc. 8, p. 50). The ALJ’s finding
concerning Ms. Macon’s ability to use her bilateral extremities to push and pull
appears consistent with Dr. Warren’s examination which revealed that Ms. Macon
had 4/5 strength in her bilateral lower extremities. (Doc. 6-11, p. 63). Moreover,
during her three and a half year course of treatment with Dr. Odjegba, Dr. Odjegba
did not recommend that Ms. Macon limit her activity because of pain and swelling
in her legs.
Nevertheless, to the extent that the ALJ’s determination that Ms. Macon can
engage in frequent pushing and pulling with her bilateral lower extremities
constitutes error, the error is harmless. According to the regulations, sedentary
work:
involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.

27

20 C.F.R. §§ 404.1567(a), 416.967(a). By definition, under the regulations, a
sedentary job does not require an individual to engage in pushing or pulling. The
jobs that the ALJ determined that Ms. Macon can perform are “sedentary unskilled
[] occupations” (Doc. 6-4, p. 23), and “[l]imitations or restrictions on the ability to
push or pull generally will have little effect on the unskilled sedentary occupational
base.” SSR 96-9p, 1996 WL 374185, at *6.
3.

If the ALJ Drew an Adverse Inference from Ms. Macon’s
Lack of Medical Treatment, the Error is Harmless.

In assessing a claimant’s credibility, one factor that an ALJ may consider is
the level of treatment that the claimant sought for the alleged disabling condition.
SSR 96-7p, 1996 WL 374186, at *7 (“In general, a longitudinal medical record
demonstrating an individual’s attempts to seek medical treatment for pain or other
symptoms and to follow that treatment once it is prescribed lends support to an
individual’s allegations of intense and persistent pain or other symptoms for the
purposes of judging the credibility of the individual’s statements.”). But an ALJ
“must not draw any inferences about an individual’s symptoms and their functional
effects from a failure to seek or pursue regular medical treatment without first
considering any explanations that the individual may provide, or other information
in the case record, that may explain infrequent or irregular medical visits or failure
to seek medical treatment.” SSR 96-7p, 1996 WL 374186, at *7; see Dawkins v.
Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“[W]hile a remediable or
28

controllable medical condition is generally not disabling, when a claimant cannot
afford the prescribed treatment and can find no way to obtain it, the condition that
is disabling in fact continues to be disabling in law.”) (internal quotation marks and
citation omitted); Brown v. Comm’r of Soc. Sec., 425 Fed. Appx. 813, 817 (2011)
(“[B]efore denying an application based on a claimant’s failure to comply with
prescribed medical care, the ALJ must consider whether the claimant is able to
afford the medical care.”) (citing Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th
Cir. 2003)).
During her hearing, Ms. Macon explained that she had not seen a kidney
specialist for her renal impairment because she does not have insurance. (Doc. 64, p. 44). In his decision, the ALJ acknowledged that Dr. Odjegba diagnosed
diabetic nephropathy as a chronic problem and that Dr. Odjegba also diagnosed
chronic renal disease on one occasion. (Doc. 6-4, p. 16; see also Doc. 6-9, pp. 25,
29, 36; Doc. 6-11, p. 29, 34, 50, 55). In addition, the ALJ explained that that some
lab results in the administrative record suggest renal impairment. (Doc. 6-4, p. 16;
see also Doc. 6-11, p. 47). The ALJ noted that Ms. Macon had not seen a
nephrologist despite her doctor’s recommendation, and therefore, “the functioning
of [Ms. Macon’s] remaining kidney is not entirely clear from the record as a
whole.” (Doc. 6-4, p. 16).

29

In his decision, the ALJ did not explicitly consider Ms. Macon’s inability to
afford treatment from a specialist. It is not clear from the ALJ’s decision that he
drew an adverse inference from Ms. Macon’s lack of specialized treatment for her
kidney problems.

For example, the ALJ noted that Dr. Warren limited his

diagnosis to “suspected early chronic renal insufficiency.” (Doc. 6-4, p. 16; see
Doc. 6-11, p. 64). The ALJ also stated that he “fully considered and accounted for
the fact that [Ms. Macon] has only one kidney and may have some impaired kidney
function.” (Doc. 6-4, p. 21).
Assuming that the ALJ drew an adverse inference from Ms. Macon’s lack of
treatment for her renal impairments, Ms. Macon has not established reversible
error because the ALJ did not rely solely on Ms. Macon’s failure to see a
nephrologist to make his disability determination. Thus, the ALJ’s failure to
consider Ms. Macon’s inability to afford specialized treatment for kidney
impairments is harmless error. Ellison, 355 F.3d at 1275 (ALJ’s failure to consider
claimant’s ability to afford medication was not error because the ALJ, in finding
that the claimant was not disabled, did not rely heavily on a finding of
noncompliance with prescribed treatment); Beegle v. Social Sec. Admin., Comm’r,
482 Fed. Appx. 483, 487 (11th Cir. 2012) (“[R]eversible error does not appear
where the ALJ primarily based her decision on factors other than non-compliance,

30

and where the claimant’s non-compliance was not a significant basis for the ALJ’s
denial of disability insurance benefits.”).
V.

CONCLUSION
For the reasons discussed above, the Court finds that substantial evidence

supports the ALJ’s decision, and the ALJ applied proper legal standards. The
Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner. Accordingly, the Court affirms the Commissioner’s decision. The
Court will enter a separate final judgment consistent with this memorandum
opinion.
DONE and ORDERED this March 5, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

31