Turley v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION - For the reasons explained above, the court concludes that the Commissioners decision is supported by substantial evidence, and the Commissioner applied proper legal standards in reaching the determination. Therefore, the court WILL AFFIRM the Commissioners final decision. The court will enter a separate order consistent with this memorandum opinion. Signed by Judge Annemarie Carney Axon on 4/3/2019. (KEK)

FILED
2019 Apr-03 PM 01:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

TARA L. TURLEY,

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Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Case No.: 4:17-cv-02197-ACA

MEMORANDUM OPINION
Plaintiff Tara L. Turley appeals the decision of the Commissioner of Social
Security denying her 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 WILL AFFIRM the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Ms. Turley applied for a period of disability and disability insurance benefits

on November 1, 2014.

(R. 28, 141, 233-241).

Ms. Turley alleges that her

disability began on October 13, 2014. (R. 28, 141). The Commissioner initially
denied Ms. Turley’s claim on January 21, 2015.

(R. 169-173).

Ms. Turley

requested a hearing before an Administrative Law Judge (ALJ). (R. 167-168).

After holding a hearing, the ALJ issued an unfavorable decision on January 31,
2017. (R. 25-37). On October 31, 2017, the Appeals Council declined Ms.
Turley’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 Ms. Turley has not engaged in substantial
gainful activity since October 13, 2014, the alleged onset date. (R. 30). The ALJ
found that Ms. Turley has the following severe impairments: trigeminal neuralgia,
depression, migraine headaches, cervical radiculopathy, and obesity. (R. 30). The
ALJ then concluded that Ms. Turley does not suffer from an impairment or
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combination of impairments that meets or medically equals the severity of one of
one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (R. 32).
After considering the evidence of record, the ALJ determined that Ms.
Turley has the RFC to perform:
light work as defined in 20 CFR 404.1567(b) except: lift 20 pounds
occasionally and 10 pounds frequently; sit at least 6 hours in an 8hour workday; stand and walk, in combination, no more than 6 hours
in an 8-hour workday; occasionally climb ramps and stairs, but never
climb ladders, ropes, or scaffolding; occasionally balance, stoop,
kneel, crouch, and crawl; avoid work at unprotected heights and
moving mechanical parts; occasional exposure to weather, humidity,
wetness, extreme heat, extreme cold, and vibration; and perform
simple and routine tasks, involving occasional contact with the
general public.
(R. 33). Based on this RFC, the ALJ found that Ms. Turley cannot perform her
past relevant work as a medical transcriptionist or editor/proofreader. (R. 35-36).
Relying on testimony from a vocational expert, the ALJ concluded that jobs
exist in the national economy that Ms. Turley can perform, including routing clerk,
night cleaner, and assembler. (R. 36-37). Accordingly, the ALJ determined that
Ms. Turley has not been under a disability as defined in the Social Security Act,
from October 13, 2014, through the date of the decision. (R. 37).
IV.

DISCUSSION
Ms. Turley argues that the court should reverse and remand the

Commissioner’s decision for three reasons: (1) the ALJ did not properly evaluate
the opinion of treating physician Dr. Smitha Persaud; (2) the Appeals Council did
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not properly evaluate new evidence that Ms. Turley submitted in support of her
claim; and (3) the ALJ’s RFC assessment is conclusory and violates Social
Security Ruling 96-8p. The court addresses each argument in turn.
A.

The ALJ Properly Evaluated Dr. Persaud’s Opinion

An ALJ must give the opinion of a treating physician “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Phillips v.
Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (internal quotation marks and
citation 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. at 1240-41. “With good cause, an ALJ may
disregard a treating physician’s opinion, but he ‘must clearly articulate [the]
reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d at
1241; alteration in Winschel).
The record contains a letter that Dr. Persaud signed on October 13, 2016.
(Doc. 758). The letter states, in relevant part:
I am writing this letter concerning my patient, Tara Turley. Mrs.
Turley is currently under my care for the treatment of chronic
refractory migraine headaches and intractable trigeminal neuralgia.
Some associated symptoms of her migraine headaches include
nausea, vomiting and sensitivity to light, sound, and smell. As a
result of trigeminal neuralgia, Mrs. Turley also has a persistent
burning sensation and intermittent sharp, stabbing pains that originate
in her left cheek and spread to the temporal area. She may
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experience tearing of the left eye as well.
Her trigeminal
neuralgia also flares up with certain activities such as talking,
chewing, brushing her teeth, activities causing exertion and with
exposure to cold temperatures. I currently have her on a combination
of treatments to help prevent and dull the migraines and neuralgia,
however, these treatments do not completely resolve the issue and is
often trial and error. She has already tried and failed multiple
medications.
...
(R. 758).
The ALJ stated that she considered but gave little weight to this statement
because Dr. Persaud’s opinion that Ms. Turley’s migraines are intractable “is not
supported by the weight of the evidence, including neurological treatment records,
that establishes that [the migraines] are amenable to medication and are not
intractable.” (R. 35) (emphasis in original).
Ms. Turley argues that the ALJ did not properly evaluate Dr. Persaud’s
opinion because the opinion is based on, and presumably supported by, Dr.
Persaud’s treatment of Ms. Turley from September 23, 2015 through October 13,
2016. (Doc. 15 at 25, citing R. 521-527, 641-644). But, as the ALJ recognized,
these treatment notes demonstrate that Ms. Turley’s migraines and neurological
pain improved with treatment. For example, on September 23, 2015, Dr. Persaud
stated that Ms. Turley benefitted “from one round of Botox,” and she believed that
Ms. Turley would benefit from continued treatment. (R. 527). On January 21,
2016, Dr. Persaud noted that Ms. Turley reported “great improvement in migraines
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with Botox. Migraines reduced from daily down to 15 or less per month and were
much less severe than prior to Botox. Migraines also responded much better to
Imitrex.” (R. 522). As of January 21, 2016, Botox had not helped Ms. Turley’s
trigeminal neuralgia, but Dr. Persaud stated that Norco had helped severe flare-ups
of her trigeminal neuralgia, and Dr. Persaud transferred oversight of Ms. Turley’s
Norco prescription to the pain clinic. (Id.).
By April 21, 2016, Ms. Turley saw additional improvement after another
Botox treatment, and she reported that she averaged only six migraines per month,
and Dr. Persaud noted that a trigeminal block from the pain center had “helped
some.” (R. 643). On July 20, 2016, Dr. Persaud explained that Ms. Turley’s
migraines and trigeminal neuralgia had improved since starting Botox. (R. 641).
Based on this evidence, the court finds that the ALJ clearly articulated good
cause for giving Dr. Persaud’s opinion little weight. See e.g., Hunter v. Soc. Sec.
Admin., Comm’r, 808 F.3d 818, 823 (11th Cir. 2015) (“The 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.”); 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’

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opinions regarding the claimant’s disability were inconsistent with the physicians’
treatment notes and unsupported by the medical evidence).
B.

New Evidence Submitted to the Appeals Council

“‘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.
1.

Evidence that Pre-Dates the ALJ’s Decision

After the ALJ issued her decision, Ms. Turley submitted to the Appeals
Council additional evidence that pre-dates the ALJ’s decision. This evidence
includes: (1) treatment notes from Southern Cardiovascular Associates, dated
September 15, 2016 to October 13, 2016; (2) treatment notes from Anniston
Medical Clinic Office, dated October 3, 2016 to January 30, 2017; (3) treatment
notes from Tennessee Valley Pain Consultants, dated October 17, 2016 to
December 12, 2016; (4) treatment notes from Dr. Lianke Mu, dated January 20,

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2017 to January 31, 2017; and (5) treatment notes from Dr. Persaud, dated October
11, 2016 to January 4, 2017. (R. 45-66, 78-109, 119-122).
The Appeals Council “did not consider and exhibit” this evidence because it
found the “evidence does not show a reasonable probability that it would change
the outcome of the decision.” (R. 2). Ms. Turley’s sole challenge regarding the
Appeals Council’s treatment of this evidence is that the Appeals Council did not
“show in its written denial that it ha[d] adequately evaluated the new evidence.”
(Doc. 15 at 26, citing Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980)).
According to Ms. Turley, the Appeal Council’s review of her additional predecision evidence was “purely conclusory” and “epitomizes ‘perfunctory
adherence’ to the ALJ[’]s decision.” (Doc. 15 at 28). Ms. Turley’s argument is
not persuasive.
Where the Appeals Council considers new evidence but declines a
claimant’s request for review, the Appeals Council is not required “to provide a
detailed discussion of a claimant’s new evidence.” Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 782-83 (11th Cir. 2014).

The court recognizes that

Mitchell’s holding contemplates that the Appeals Council actually considers new
evidence that a claimant submits and still denies review. In this case, the Appeals
Council stated that it did not consider the new evidence that pre-dates the ALJ’s
decision.

(See R. 2).

However, Ms. Turley does not challenge the Appeals
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Council’s failure to consider this evidence. (See generally Doc. 15 at 25-28). In
fact, Ms. Turley states that the Appeals Council “claims to have considered the
new evidence,” (doc. 15 at 28), and the court will not make arguments on Ms.
Turley’s behalf.

Therefore, even though the record reflects that the Appeals

Council did not consider the new evidence that pre-dates the ALJ’s decision, the
court finds that Mitchell controls the analysis here based on the limited nature of
Ms. Turley’s objection. Accordingly, the court finds that the Appeals Council was
not required to offer a more detailed explanation for why the new evidence that
pre-dates the ALJ’s decision does not change the outcome of the case.
2.

Evidence that Post-Dates the ALJ’s Decision

Ms. Turley also submitted to the Appeals Council new evidence that postdates the ALJ’s decision.

This evidence includes: (1) treatment notes from

Tennessee Valley Pain Consultants, dated February 9, 2017 to April 6, 2017; (2)
treatments notes from Anniston Medical Clinic Office, dated March 27, 2017 to
April 11, 2017; and (3) a treatment note from Dr. Persaud, dated April 3, 2017. (R.
43-44, 69-77, 111-118). The Appeals Council did not consider this evidence
because the Appeals Council held that the evidence was not chronologically
relevant. (R. 2).
The court finds that Ms. Turley has abandoned her argument with respect to
the Appeals Council’s failure to consider this evidence.
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“[A] legal claim or

argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004). “[A]n appellant’s brief must include an argument
containing appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.” Singh v. U.S.
Atty. Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (quotation marks omitted).
Ms. Turley’s brief expressly identifies an argument that the Appeals Council
failed to review new, material, and chronologically relevant post-decision
submissions. The summary of the ALJ’s purported errors and law (doc. 15 at 2)
and one numbered section of her brief (id. at 28-32) state that she is challenging
the Appeals Council’s failure to consider the new evidence. But the brief does
nothing more.
In the section of her brief about the Appeals Council’s failure to consider
post-decision evidence, Ms. Turley cites from the relevant portion of the Appeals
Council’s decision. (Doc. 15 at 28-29). The brief then block quotes, summarizes,
or simply provides citations to, cases in which various federal courts have
remanded for consideration of additional evidence. (Doc. 15 at 29-32). The brief
does not provide any substantive analysis of how the post-decision evidence that
Ms. Turley submitted to the Appeals Council is new, material, and chronologically
relevant evidence. (See id.). This sort of perfunctory argument gives neither the
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Commissioner nor the court any guidance about Ms. Turley’s argument aside from
the fact that she asserts the existence of an error. See Singh, 561 F.3d at 1278
(“[A]n appellant’s simply stating that an issue exists, without further argument or
discussion, constitutes abandonment of that issue and precludes our considering the
issue . . . .”); see also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (“We have long held that an appellant abandons a claim when he
either makes only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”). Nor does Ms. Turley’s reply brief
remedy the deficiencies of her initial brief. (See Doc. 18 at 4-8).
Because Ms. Turley’s briefs do not present adequate argument on this issue,
the court will not address it.
C.

The ALJ’s RFC Determination Complies with SSR 96-8p

The RFC describes the types of work that a claimant may perform despite
limitations caused by her impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238
(11th Cir. 2004) (citing 20 C.F.R. § 404.1545(a)). The ALJ determined that Ms.
Turley can perform a range of light work with a number of postural, exertional,
and environmental limitations. (R. 33).
Ms. Turley argues that the ALJ’s RFC determination is not supported by
substantial evidence because the RFC is conclusory and does not comply with SSR
96-8p. (Doc. 15, pp. 32-34). The court disagrees.
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SSR 96-8p states that:
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations). In assessing RFC, the adjudicator must
discuss the individual’s ability to perform sustained work activities in
an ordinary work setting on a regular and continuing basis (i.e., 8
hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
...
The RFC assessment must include a discussion of why reported
symptom-related functional limitations and restrictions can or cannot
reasonably be accepted as consistent with the medical and other
evidence.
...
The RFC assessment must always consider and address medical
source opinions. If the RFC assessment conflicts with an opinion from
a medical source, the adjudicator must explain why the opinion was
not adopted.
SSR 96-8p, 1996 WL 374184, at *7 (footnote omitted).
In addition to medical and objective evidence, the ALJ considered formal
medical opinions, Ms. Turley’s treatment history, and her testimony about her
alleged limitations. (R. 33-35). The ALJ’s decision sufficiently demonstrates that
she considered all of the relevant evidence in arriving at her RFC determination.
See Carson v. Comm’r of Soc. Sec., 440 F. App’x 863, 864 (11th Cir. 2011)

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(“Following [SSR 96-8p’s] rubric, the ALJ fully discussed and evaluated the
medical evidence, [the claimant’s] testimony, and the effect each impairment has
on [the claimant’s] daily activities.”); Freeman v. Barnhart, 220 F. App’x 957, 960
(11th Cir. 2007) (“[T]he ALJ complied with SSR 96-8p by considering [the
claimant’s] functional limitations and restrictions and, only after he found none,
proceeding to express her residual functional limitations in terms of exertional
levels.”).
Ms. Turley suggests that the ALJ’s RFC determination is not supported by
substantial evidence because the ALJ was required to rely on a physical capacities
assessment from a treating or examining physician. (See Doc. 15 at 33-34, citing
Thomason v. Barnhart, 34 F. Supp. 2d 1326 (N.D. Ala. 2004) and Coleman v.
Barnhart, 264 F. Supp. 2d 1007 (S.D. Ala. 2003)). Ms. Turley’s argument is not
persuasive. The RFC determination is an issue reserved to the Commissioner, and
although an ALJ will consider medical source opinions in reaching that
determination, an ALJ is not required to base her RFC finding on the opinion of a
physician. See 20 C.F.R. §§ 404.1527(d)(2); 404.927(d)(2); Castle v. Colvin, 557
F. App’x 849, 853-54 (11th Cir. 2014) (substantial evidence supported ALJ’s RFC
determination even though ALJ rejected treating physician’s opinion, and the
record contained no other physical capacities assessment).

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Finally, Ms. Turley submits that this case is similar to Walker v. Bowen, 826
F.2d 941 (11th Cir. 1987), a case in which the Eleventh Circuit found that
substantial evidence did not support the Commissioner’s finding that a claimant
could perform light work. (Doc. 15 at 33). Ms. Turley offers no substantive
argument regarding why the facts of this case are analogous to Walker. (Doc. 15 at
34). And contrary to Ms. Turley’s argument (see Doc. 15 at 34), the ALJ’s RFC
findings are not mere conclusions without analysis. See supra pp. 12-13; see also
R. 33-35.
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 WILL AFFIRM the Commissioner’s final decision. The
court will enter a separate order consistent with this memorandum opinion.
DONE and ORDERED this April 3, 2019.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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