Elkins v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 7/13/2018. (TLM, )

FILED
2018 Jul-13 PM 03:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

TIMOTHY BRIAN ELKINS,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Case No.: 4:17-cv-00631-ACA

MEMORANDUM OPINION
Plaintiff Timothy Brian Elkins appeals the decision of the Commissioner of
Social Security denying his claim for a period of disability and disability insurance
benefits. Based on the court’s review of the administrative record and the parties’
briefs, the court affirms the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Mr. Elkins applied for a period of disability and disability insurance benefits

on February 18, 2014. (R. 19; 66). Mr. Elkins alleges that his disability began on
September 27, 2012. (R. 19; 66). The Commissioner initially denied Mr. Elkins’s
claim on April 18, 2014. (R. 79). Mr. Elkins requested a hearing before an
Administrative Law Judge (ALJ). (R. 87). After holding a hearing, the ALJ issued

an unfavorable decision on February 9, 2016. (R. 27). On February 17, 2017, the
Appeals Council declined Mr. Elkins’s request for review (R. 1), making the
Commissioner’s decision final and ripe for the court’s judicial review. See 42
U.S.C § 405(g).
II.

STANDARD OF REVIEW
The court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The court “must determine whether the Commissioner’s decision is
supported by substantial evidence and based on proper legal standards.” Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotation
marks and citation omitted). “Under the substantial evidence standard, this court
will affirm the ALJ’s decision if there exists ‘such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.’” Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (quoting Winschel, 631
F.3d at 1178). The court may not “decide the facts anew, reweigh the evidence,”
or substitute its judgment for that of the ALJ. Winschel, 631 F.3d at 1178 (internal
quotations and citation omitted). The court must affirm “[e]ven if the evidence
preponderates against the Commissioner’s findings.” Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir.2004) (per curiam) (internal quotation
marks and citation omitted).

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Despite the deferential standard for review of claims, the court must
“‘scrutinize the record as a whole to determine if the decision reached is reasonable
and supported by substantial evidence.’”

Henry, 802 F.3d at 1267 (quoting

MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). Moreover, the court
must reverse the Commissioner’s decision if the ALJ does not apply the correct
legal standards. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III.

ALJ’S DECISION
To determine whether an individual 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.
Here, the ALJ determined that Mr. Elkins has not engaged in substantial
gainful activity since September 27, 2012, the alleged onset date. (R. 21). The
ALJ found that Mr. Elkins has the following severe impairments: tenosynovitis and
degenerative disc disease. (R. 21). The ALJ then concluded that Mr. Elkins does
not suffer from an impairment or combination of impairments that meets or
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medically equals the severity of one of one of the listed impairments in 20 C.F.R. §
404, Subpart P, Appendix 1. (R. 23).
After considering the evidence of record, the ALJ determined that Mr.
Elkins has the RFC to perform:
light work as defined in 20 CFR 404.1567(b) except: occasionally lift
20 pounds and 10 pounds frequently; sit at least 6 hours during an 8hour workday; stand and walk at least 6 hours in an 8-hour workday;
frequently lift overhead on the left[] and right sides; frequently handle
on the right and left; frequently feel on the right and left; and
frequently finger on the right and left.
(R. 23). Based on this RFC, the ALJ found that Mr. Elkins cannot perform his past
relevant work as a seat assembler, machine tender, or hand packager. (R. 25).
Relying on testimony from a vocational expert, the ALJ concluded that jobs
exist in the national economy that Mr. Elkins can perform, including garment
sorter, housekeeper, and cashier. (R. 26). Accordingly, the ALJ determined that
Mr. Elkins has not been under a disability as defined in the Social Security Act,
since September 27, 2012 through the date of the decision. (R. 27).
IV.

DISCUSSION
Mr. Elkins argues that the court should reverse and remand the

Commissioner’s decision for two reasons: (1) the Appeals Council failed to
determine what weight to assign to a worker’s compensation order with respect to
Mr. Elkins’s credibility and an evaluation of the medical opinion evidence, and (2)
the Appeals Council failed to review the worker’s compensation order solely
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because it was dated after the ALJ’s decision without considering whether the
worker’s compensation order was chronologically relevant. The court examines
each issue in turn.
A.

The Appeals Council Did Not Err in Denying Review Because the
Worker’s Compensation Order Does Not Render the ALJ’s
Decision Erroneous

“With a few exceptions, the claimant is allowed to present new evidence at
each stage of this administrative process.” Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1261 (11th Cir. 2007).

The Appeals Council must consider

additional evidence submitted by a claimant if it is new, material, and
chronologically relevant. 20 C.F.R. § 416.1470(b). Then, the Appeals Council
must decide if the new information renders the ALJ’s “action, findings, or
conclusion . . . contrary to the weight of the evidence currently of record.” Id.
“[W]hen a claimant properly presents new evidence to the Appeals Council, a
reviewing court must consider whether that new evidence renders the denial of
benefits erroneous.” Ingram, 496 F.3d at 1262.
After the ALJ issued her decision, Mr. Elkins submitted to the Appeals
Council Interim Findings of Facts, Conclusions of Law, and Final Judgment from
the Circuit Court of Marshall County in which the state court found that Mr. Elkins
was entitled to temporary total disability benefits because of work-related injuries
to his left and right wrists and hands. (R. 4; 195-204).
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When it denied review, the Appeals Council stated:
In looking at your case, we considered the reasons you disagree with
the decision and the additional evidence. We considered whether the
Administrative Law Judge’s actions, findings or conclusion is
contrary to the weight of the evidence currently of record.
We found that this information does not provide a basis for changing
the Administrative Law Judge’s decision.
(R. 2).
Under regulations that were in effect when Mr. Elkins filed his claim for
disability benefits and case law interpreting and applying those regulations, the
Commissioner was not bound by disability findings from other governmental
agencies, but the Commissioner had to consider those disability findings and give
the determinations great weight.

20 C.F.R. § 404.1504; see also Falcon v.

Heckler, 732 F.2d 827, 831 (11th Cir. 1984) (stating that “[g]enerally, the findings
of disability by another agency, although not binding on the Secretary, are entitled
to great weight” and remanding because the ALJ erred “in not giving great weight”
to a state worker’s compensation agency’s “finding of temporary total disability”)
(internal quotation marks and alteration omitted); Boyette v. Comm’r of Soc. Sec.,
605 F. App’x. 777, 779 (11th Cir. 2015) (other governmental agency “disability
ratings are . . . not binding on the ALJ, but such ratings should be considered and
‘given great weight’”) (quoting Brady v. Heckler, 724 F.2d 914, 921 (11th Cir.
1984)); SSR 06-3p, 2006 WL 2329939, at *6-7 (“We are required to evaluate all
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the evidence in the case record that may have a bearing on our determination or
decision of disability, including decisions by other governmental and
nongovernmental agencies. . . . Therefore, evidence of a disability decision by
another governmental or nongovernmental agency cannot be ignored and must be
considered. . . .”). 1

1

When Mr. Elkins filed his application for benefits, 20 C.F.R. § 404.1504 stated:
A decision by any nongovernmental agency or any other governmental agency
about whether you are disabled or blind is based on its rules and is not our
decision about whether you are disabled or blind. We must make a disability or
blindness determination based on social security law. Therefore, a determination
made by another agency that you are disabled or blind is not binding on us.

20 C.F.R. § 404.1504. As amended on March 27, 2017, 20 C.F.R. § 404.1504 now provides:
Other governmental agencies and nongovernmental entities—such as the
Department of Veterans Affairs, the Department of Defense, the Department of
Labor, the Office of Personnel Management, State agencies, and private
insurers—make disability, blindness, employability, Medicaid, workers’
compensation, and other benefits decisions for their own programs using their
own rules. Because a decision by any other governmental agency or a
nongovernmental entity about whether you are disabled, blind, employable, or
entitled to any benefits is based on its rules, it is not binding on us and is not our
decision about whether you are disabled or blind under our rules. Therefore, in
claims filed (see § 404.614) on or after March 27, 2017, we will not provide any
analysis in our determination or decision about a decision made by any other
governmental agency or a nongovernmental entity about whether you are
disabled, blind, employable, or entitled to any benefits. However, we will
consider all of the supporting evidence underlying the other governmental agency
or nongovernmental entity’s decision that we receive as evidence in your claim in
accordance with § 404.1513(a)(1) through (4).
20 C.F.R. § 404.1504.
Because Mr. Elkins filed his claim for benefits before March 27, 2017, the Commissioner was
required to consider the worker’s compensation order.

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Mr. Elkins makes no substantive argument with respect to how the Appeals
Council’s consideration of the worker’s compensation order, when evaluated
against the record as a whole, renders erroneous the ALJ’s denial of benefits.
Rather, in his briefs, Mr. Elkins largely block quotes or summarizes, with no
analysis, cases in which various federal courts have recited the general standard for
consideration of other governmental agencies’ determinations of disability and in
which courts have remanded because the ALJ failed to assign great weight to those
disability ratings. (See generally Doc. 12, pp. 31-36; Doc. 14, pp. 2-3).
In the argument heading, Mr. Elkins appears to assert that, based on the
worker’s compensation order, the ALJ should have credited his subjective
complaints of pain and evaluated differently the conflicting medical opinions in the
record. (Doc. 12, p. 31 (“The Appeals Council Failed to Determine What Weight
Should Be Assigned to Worker’s Compensation Order Regarding Credibility of
Claimant and Conflicting Medical Opinions”)). The court finds that the worker’s
compensation order does not provide a basis for relief from the administration
decision.
With respect to his contention that the worker’s compensation order should
impact the ALJ’s credibility determination, Mr. Elkins seemingly relies on the state
court’s finding that Mr. Elkins’s testimony during the worker’s compensation trial
was credible. (See R. 196).

Mr. Elkins does not cite, and the court has not
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located, authority explaining that a state court’s credibility findings are binding on
the

Social

Security

Administration

or

otherwise

should

impact

the

Commissioners’s assessment of a claimant’s subjective complaints of pain. In any
event, consistent with the relevant regulations, see 20 C.F.R. § 404.1529, the ALJ
evaluated Mr. Elkins’s social security hearing testimony against the record as a
whole, including the objective medical evidence, the opinion testimony, and Mr.
Elkins’s activities of daily living. (R. 23-25).
Mr. Elkins argues generally that the Appeals Council did not determine what
weight to assign the worker’s compensation opinion regarding conflicting medical
opinions. (Doc. 12, p. 31). Mr. Elkins does not indicate which medical opinions
the Commissioner should have evaluated differently in light of the worker’s
compensation order. (See generally Doc. 12, pp. 31-36). As best as the court can
decipher, Mr. Elkins submits that the Appeals Council, consistent with the
worker’s compensation order, should have credited the disability opinion of Dr.
Jason Junkins and rejected the opinions of other physicians.
In support of its disability finding, the state court explained:
The Court has thoroughly reviewed Dr. Junkins’ medical records and
notes on June 6, 2013, Dr. Junkins restricted the Plaintiff from
working until he was released after surgery. Because of this, the
Court is of the opinion the Plaintiff is entitled to recovery temporary
total disability benefits from June 6, 2013, up and until he is returned
to work or placed at maximum medical recovery after surgery is
performed on his right and left hands and wrists.
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(R. 200). The administrative record in this case contains Dr. Junkins’ June 6, 2013
certificate to return to work in which he stated that until cleared by a surgeon, Mr.
Elkins was unable to return to work. (R. 438). The ALJ considered Dr. Junkins’
return to work opinion and an April 29, 2015 statement of disability that Dr.
Junkins completed on behalf of Mr. Elkins in conjunction with a MetLife disability
claim. (R. 22; see R. 436; 438). In the statement of disability, Dr. Junkins opined
that Mr. Elkins is unable to return to work because of increasing wrist and hand
pain. (R. 437). The ALJ rejected Dr. Junkins’ opinion because the ALJ found that
the opinion “is inconsistent with the weight of the evidence in this case.” (R. 25).
That evidence includes a number of treatment notes and medical opinions that
post-date Mr. Elkins’s work-related injuries in which doctors found that Mr. Elkins
has only mild restrictions in his ability to use his wrists and hands and that those
restrictions do not prevent Mr. Elkins from working.
On January 22, 2013, providers at Healthworx examined Mr. Elkins and
completed a functional capacity evaluation. (R. 323-326). Mr. Elkins was able to
demonstrate a full fist bilaterally, and he had 4/5 wrist and finger strength
bilaterally. (R. 325). According to the Healthworx functional capacity evaluation,
Mr. Elkins was able to perform medium work. (R. 326).
On January 31, 2013, Dr. Richard Meyer examined Mr. Elkins. (R. 328).
Dr. Meyer also reviewed the Healthworx evaluation. (R. 328). Although Mr.
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Elkins complained of wrist pain, Dr. Meyer explained that Mr. Elkins’s limitations
were “actually fairly light and self-limited.” (R. 328). Based on his examination,
Dr. Meyer assigned a 3% permanent partial impairment to Mr. Elkins’s right wrist
and opined that Mr. Elkins could return to work within the limits of the
Healthworx functional capacity evaluation. (R. 328).
On May 29, 2013, Dr. Ekkehard Bonatz examined Mr. Elkins. (R. 333). Dr.
Bonatz stated:
[Mr. Elkins] has somewhat decreased strength bilaterally. With some
gentle distraction and passive range of motion, he almost collapses in
pain while sitting in a chair. He localizes the maximum point of pain
to the entire volar and dorsal wrist radiocarpal area, this is different
than at the time of his history. Distally a vascular examination shows
no deficits on gross exam. He has a positive Tinel’s and Phalen’s test
for the median nerve on the right, negative Tinel’s sign for the ulnar
nerve on either side. There is no thenar or hypothenar atrophy.
He has well-healed arthroscopy portals from right wrist surgery. I do
not see any dystophic changes. He has a negative axial grind test for
the thumb CMC joint, pain is present to palpation of both ulnar heads.
(R. 335). Based on his examination, Dr. Bonatz concluded that Mr. Elkins had no
work restrictions. (R. 335).
In May 2013, one of Mr. Elkins’s treating physicians, Dr. Thomas Powell,
completed work status forms in which he noted that Mr. Elkins had limited use of
his left and right hands and instructed Mr. Elkins not to engage in repetive use of
either hand or wrist. (R. 347). By October 2013, Dr. Powell released Mr. Elkins
to work with no restrictions despite a tenosynovitis diagnosis. (R. 345-346; 364).
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In October 2015, Dr. Sathyan Iyer examined Mr. Elkins at the request of the
Disability Determination Service. (R. 441-451). With respect to Mr. Elkins’s right
wrist, Dr. Iyer stated:
No swelling or deformities noted. Tenderness over mid dorsal wrist
area is noted. Actively, the range of motion of the wrist restricted
because of his subjective experience or discomfort. Dorsiflexion is 30
degrees, palmar flexion 30 degrees, and radial and ulnar deviation 10
degrees. Passively, the wrist can be moved to the full extent. No
palpable abnormalities over the palms. Decreased touch sensation
over the fingers. Tinel’s and Phalen’s signs negative.
(R. 442). Dr. Iyer found no significant abnormality with Mr. Elkins’s left wrist.
(R. 442). Mr. Elkins’s grip strength and opposition functions were normal, and he
displayed no muscle atrophy over the hands. (R. 443). Mr. Elkins had normal
muscle power in his upper extremities. (R. 443).
Based on his examination, Dr. Iyer opined that Mr. Elkins could
occasionally lift and carry up to 20 pounds. (R. 446). Dr. Iyer also concluded that
Mr. Elkins could occasionally reach overhead, handle, finger, feel, push, and pull
with his right hand. (R. 448). Dr. Iyer opined that Mr. Elkins could occasionally
reach overhead, push, and pull with his left hand and frequently handle, finger, and
feel with his left hand. (R. 448).
Based on this evidence, the court finds that the ALJ articulated good cause
for assigning little weight to Dr. Junkins’ opinion regarding disability. See e.g.,
Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 823 (11th Cir. 2015) (“The
12

ALJ found [the treating physician’s] opinion inconsistent with the medical records
and other evidence, and gave it less weight on that basis. Because the ALJ’s
rationale was adequate, we will not disturb the credibility determination.”); Roth v.
Astrue, 249 F. App’x. 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”). Likewise, the court concludes that the state court worker’s compensation
order, when considered in light of the entire administrative record, does not render
the ALJ’s decision erroneous. The record as a whole contradicts the state court
disability decision. There is no reasonable probability that the new evidence would
have changed the administrative result, and the worker’s compensation order “does
not change the conclusion that the denial of benefits . . . was supported by
substantial evidence.” McCants v. Comm’r of Soc. Sec., 605 F. App’x. 788, 791
(11th Cir. 2015) (per curiam). Accordingly, the Appeals Council did not err in
denying review.
B.

The Appeals Council Considered the Worker’s Compensation
Order, and the Appeals Council Did not Cite Chronological
Relevance as Basis for Denying Review

The record does not support Mr. Elkins’s second argument that the Appeals
Council refused to consider the worker’s compensation order without considering
whether the order was chronologically relevant. The Appeals Council accepted
13

Mr. Elkins’s new evidence, but the Appeals Council denied review because, even
in light of the worker’s compensation order, the Appeals Council found no error
with the ALJ’s decision.

(R. 2).

Thus, the Appeals Council considered the

worker’s compensation order, and the Appeals Council did not cite chronological
relevance as a basis for denying review. Therefore, the court is not persuaded by
Mr. Elkins’s argument that the Appeals Council failed to consider his new
evidence solely because it post-dated the ALJ’s decision without determining
whether the new evidence was chronologically relevant.
V.

CONCLUSION
For the reasons explained above, the court concludes that the

Commissioner’s decision is supported by substantial evidence, and the
Commissioner applied proper legal standards in reaching the determination.
Therefore, the Court AFFIRMS the Commissioner’s final decision. The Court
will enter a separate order consistent with this memorandum opinion.
DONE and ORDERED this July 13, 2018.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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