Brown v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION AND ORDER OF REMAND that the decision of the Commissioner is REVERSED and this action is REMANDED to the Commissioner of the Social Security Administration for further consideration as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/11/2018. (AHI)

FILED
2018 Jun-11 AM 10:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Case No. 4:17-CV-2034-CLS

MEMORANDUM OPINION AND ORDER OF REMAND
Claimant, Calvin Eugene Brown, commenced this action on December 5, 2017,
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 his 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: (1) the ALJ erred by failing to make a credibility finding; (2)
the Appeals Council erred by failing to find that newly submitted evidence would
have changed the administrative decision; (3) the ALJ improperly considered the
opinions of the consultative examiners; (4) the ALJ failed to apply Grid Rule 201.12;
and (5) the ALJ’s decision was not based upon substantial evidence. Upon review
of the record, the court concludes that claimant’s second contention has merit, and the
case should be remanded to the Commissioner for further consideration of the new
evidence.
Prior to the ALJ’s administrative decision, claimant submitted a March 17,
2016 letter from his primary care physician, Dr. Ochuko Odjegba of Quality of Life
Health Services, which stated only: “To Whom It May Concern: Mr. Brown is
currently under my medical care. Due to his medical conditions he is unable to gain
and keep employment. If you have any questions or concerns please call my office
at [telephone number omitted]. Thank you.”1 The ALJ considered that letter but
afforded it only little weight, explaining:
While the determination of an individual’s residual functional capacity
and the ultimate question of disability are issues reserved to the
Commissioner, treating physicians can offer opinions regarding their
1

Tr. 459 (alteration supplied).
2

patients’ ability to engage in certain work-related activities. In this case,
Dr. Odjegba merely offered a conclusory statement, which is not entitled
to any special significance. The undersigned further notes that the type
and pattern of treatment Dr. Odjegba has provided is inconsistent with
a finding of disability.
Tr. 28.
Claimant has not challenged the ALJ’s treatment of Dr. Odjegba’s March 17,
2016 letter. Instead, claimant submitted to the Appeals Council a Physical Capacities
Form completed by Dr. Odjegba on December 22, 2016. On the one-page form, Dr.
Odjegba indicated that claimant could sit upright in a standard chair for fifteen
minutes at a time, and stand for fifteen minutes at a time. During an eight-hour day,
claimant would have to lie down, sleep, or sit with his legs propped at waist level or
above for five hours. In addition to normal workday breaks, claimant could be
expected to be off-task for eighty percent of the time during a normal work day.
During a thirty-day period, claimant could be expected to fail to report to work more
than fifteen days as a result of his medical conditions. Claimant could occasionally
lift up to twenty pounds, but he could never lift more than twenty pounds. Dr.
Odjegba stated that claimant’s limitations were caused by severe back pain, and that
claimant experienced sedation as a side effect of his medications. Claimant’s
limitations existed as far back as September 24, 2014,2 and they could be expected to
2

The significance of this date is not clear from the record. Claimant’s alleged disability onset
date was January 19, 2014. Tr. 21.
3

last twelve months or more.3
The Appeals Council did not consider Dr. Odjegba’s Physical Capacities Form,
and did not make it part of the administrative record. The Appeals Council reasoned
that, even though the form related back to September 24, 2014, which was prior to the
ALJ’s December 5, 2016 administrative decision, it did not “show a reasonable
probability that it would change the outcome of the decision.”4 Claimant now
contends that the Appeals Council erred by failing to consider the form.
When a claimant submits new evidence to the AC [i.e., the 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, 496 F.3d at 1262. 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) (alteration and emphasis
supplied). Moreover, new evidence should be considered if there is a reasonable
possibility that it would have changed the administrative result. Washington v. Social
Security Administration, Commissioner, 806 F.3d 1317, 1321 (11th Cir. 2015).
It is true that Dr. Odjegba’s Physical Capacities Form describes a severely

3

Tr. 7.

4

Tr. 2.
4

disabled individual. But the Appeals Council was not necessarily required to credit
Dr. Odjegba’s statements, even though they came from a 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. 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 whether a claimant is disabled is not a medical opinion, 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(d). See also Wheeler v. Heckler, 784 F.2d

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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.”).
The Commissioner asserts that the Appeals Council was justified in refusing
to consider Dr. Odjegba’s form because the form essentially was no different from Dr.
Odjegba’s previous conclusory statement that claimant was unable to gain and keep
employment. The court disagrees with that assertion because the Physical Capacities
Form provides much more detail about claimant’s functional abilities than Dr.
Odjegba’s earlier conclusory opinion. The Commissioner also asserts that the severe
limitations noted the Physical Capacities Form are unsupported by any physical
findings. Claimant saw Dr. Odjegba from March 2015 to May 2016. He reported
back pain with radiation on March 17, 2015, and the pain had worsened by May 28,
2015.5 He next reported chronic back pain on January 21, 2016, and worsening of the
pain on March 17, 2016.6 Throughout his treatment by Dr. Odjegba, claimant was
prescribed medication for back pain and muscle spasms.7 Records from another
treatment provider at Quality of Life Health Services reflect that claimant began

5

Tr. 460-62.

6

Tr. 470-72.

7

Tr. 460-75.
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reporting back pain, joint swelling, muscle weakness, and tenderness to palpitation
in his lower back in September 2014, and that he was continually prescribed
medications to treat the pain and muscle spasms.8 The physicians’ observations of
joint swelling, muscle weakness, tenderness to palpitation, and radiating pain
constitute clinical findings to support the limitations assessed on Dr. Odjegba’s form.
In summary, the court concludes that Dr. Odjegba’s Physical Capacities Form
was sufficiently material to the disability determination to at least warrant
consideration by the Appeals Council.

Accordingly, the decision of the

Commissioner is reversed, and this action is REMANDED to the Commissioner of
the Social Security Administration for further consideration of Dr. Odjegba’s Physical
Capacities Form, further evaluation of the limitations resulting from claimant’s lower
back condition, and any other necessary proceedings consistent with this
memorandum opinion and order.
The Clerk is directed to close this file.
DONE and ORDERED this 11th day of June, 2018.

______________________________
United States District Judge

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Tr. 405-420.
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