Carrell v. Social Security Administration, Commisioner
Filing
19
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 4/17/2019. (KAM)
FILED
2019 Apr-17 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SCOTTIE LYNELL CARRELL,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Case No.: 5:18-cv-00142-JEO
MEMORANDUM OPINION
Plaintiff Scottie Lynell Carrell appeals from the decision of the
Commissioner of the Social Security Administration (the “Commissioner”)
denying his applications for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) under the Social Security Act. (Doc. 1).1 Carrell timely
pursued and exhausted his administrative remedies, and the Commissioner’s
decision is ripe for review pursuant to 42 U.S.C. § 405(g).
For the reasons
discussed below, the court finds that the Commissioner’s decision is due to be
affirmed.2
1
References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the docket
sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
2
The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 8).
I. Procedural History
Carrell alleges he became disabled on July 8, 2016. (R. 19). 3 Carrell claims
he could no longer work due to a below the knee amputation following a car
accident. After his claims were denied, he requested a hearing before an ALJ.
Following the hearing, the ALJ denied his claim. (R. 18-32).
He appealed the decision to the Appeals Council (“AC”). After reviewing
the record, the AC declined to further review the ALJ’s decision. (R. 1-4). That
decision became the final decision of the Commissioner. See Frye v. Massanari,
209 F. Supp. 2d 1246, 1251 (N.D. Ala. 2001) (citing Falge v. Apfel, 150 F.3d
1320, 1322 (11th Cir. 1998)).
II. Statutory and Regulatory Framework
To establish his eligibility for disability benefits, a claimant must show “the
inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see also 20
C.F.R. § 404.1505(a). The Social Security Administration employs a five-step
sequential analysis to determine an individual’s eligibility for disability benefits.
20 C.F.R. § 404.1520(a) & 416.920(b).
3
References herein to “R. __” are to the administrative record found at Docs. 11-1 through 11-21
in the court’s record.
2
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Id “Under the first step, the claimant has the burden
to show that []he is not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Comm’r of Soc. Sec., 457 F. App’x 862, 863 (11th Cir.
2012).4 If the claimant is engaged in substantial gainful activity, the Commissioner
will determine the claimant is not disabled. At the first step, the ALJ determined
Carrell has not engaged in substantial gainful activity since July 8, 2016. (R. 19).
If a claimant is not engaged in substantial gainful activity, the Commissioner
must next determine whether the claimant suffers from a severe physical or mental
impairment or combination of impairments that has lasted or is expected to last for
a continuous period of at least twelve months.
20 C.F.R. § 404.1520(c) &
416.920(c). An impairment “must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical
and laboratory diagnostic techniques.” See id. at § 404.1502. Furthermore, it
“must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by [the claimant’s] statement of symptoms.” Id.; see
also 42 U.S.C. § 423(d)(3). An impairment is severe if it “significantly limits [the
claimant’s] physical or mental ability to do basic work activities . . . .” 20 C.F.R. §
4
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered binding
precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
3
404.1520(c).5 “[A]n impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to work, irrespective of
age, education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th
Cir. 1984); see also 20 C.F.R. § 404.1521(a). A claimant may be found disabled
based on a combination of impairments, even though none of her individual
impairments alone is disabling. 20 C.F.R. § 404.1523. The claimant bears the
burden of providing medical evidence demonstrating an impairment and its
severity. Id. at § 404.1512(a) and (c). If the claimant does not have a severe
impairment or combination of impairments, the Commissioner will determine the
claimant is not disabled. Id. at § & 404.920(c) & 404.1520(a)(4)(ii) and (c).
At the second step, the ALJ determined Carrell has the following severe
impairments: below the knee left leg amputation with use of a prosthesis; phantom
limb syndrome; and obesity. (R. 19).
5
Basic work activities include:
(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) [c]apacities for seeking, hearing, and
speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions;
(4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers
and usual work situations; and (6) [d]ealing with changes in a routine work
setting.
20 C.F.R. § 404.1521(b).
4
If the claimant has a severe impairment or combination of impairments, the
Commissioner must then determine whether the impairment meets or equals one of
the “Listings” found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §
404.920(a)(4)(iii) & (d) and § 416.920(d). The claimant bears the burden of
proving his impairment meets or equals one of the Listings. Reynolds-Buckley,
457 F. App’x at 863. If the claimant’s impairment meets or equals one of the
Listings, the Commissioner will determine the claimant is disabled. 20 C.F.R §
404.1520(a)(4)(iii) and (d). At the third step, the ALJ determined Carrell did not
have an impairment or combination of impairments that meet or medically equal
the severity of one of the Listings. (R. 22).
If the claimant’s impairment does not meet or equal one of the Listings, the
Commissioner must determine the claimant’s residual functional capacity (“RFC”)
before proceeding to the fourth step. 20 C.F.R. § 404.1520(e) & 416.920(e). A
claimant’s RFC is the most she can do despite his impairment. See id. at §
404.1545(a)(1) & 416.945(a). At the fourth step, the Commissioner will compare
the assessment of the claimant’s RFC with the physical and mental demands of the
claimant’s past relevant work. Id. at §§ 404.1520(a)(4)(iv) and 416.945(a)(4)(iv).
“Past relevant work is work that [the claimant] [has] done within the past 15 years,
that was substantial gainful activity, and that lasted long enough for [the claimant]
to learn to do it.” Id. § 404.1560(b)(1) and 416.960(b)(1). The claimant bears the
5
burden of proving that her impairment prevents him from performing her past
relevant work. Reynolds-Buckley, 457 F. App’x at 863. If the claimant is capable
of performing his past relevant work, the Commissioner will determine the
claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b),
416.945(a)(4(iv).
Before proceeding to the fourth step, the ALJ determined Carrell has the
RFC to perform a limited range of light work. (R. at 23). More specifically, the
ALJ found Carrell had the following limitations with regard to light work, as
defined in 20 C.F.R. §§ 404.1567(b) & 416.967(b):
the claimant can lift and carry twenty pounds frequently and ten
pounds occasionally. He can sit approximately six hours in an eighthour workday with all customary breaks, and stand/walk
approximately four hours in an eight-hour workday with all customary
work breaks. The claimant cannot operate foot controls with his left
leg, but can occasionally operate foot controls with his right leg. The
claimant can occasionally climb ramps and stairs, but can never work
on ladders, ropes, or scaffolds. He can occasionally balance and stoop,
but never kneel, crouch, or crawl. The claimant should avoid
concentrated exposure to extreme cold and heat, and vibrations. He
should avoid all exposure to dangerous moving machinery,
unprotected heights, and commercial driving.
(Id. at 23). At the fourth step, the ALJ determined Carrell would not be able to
perform his past relevant work as a welder and boilermaker. (Id. at 30).
If the claimant is unable to perform her past relevant work, the
Commissioner must finally determine whether the claimant is capable of
performing other work that exists in substantial numbers in the national economy
6
in light of the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(v) & (g)(1), 404.1560(c)(1), 404.920(a)(4)(v) & (g)(1). If the
claimant is capable of performing other work, the Commissioner will determine
the claimant is not disabled. Id.at § 404.1520(a)(4)(v) and (g)(1). If the claimant is
not capable of performing other work, the Commissioner will determine the
claimant is disabled. Id.
At the fifth step, considering Carrell’s age, education, work experience, and
RFC, the ALJ determined he can perform jobs that exist in significant numbers in
the national economy, such as those of hand bander, tagger, and inspector. (R. 31).
Therefore, the ALJ concluded Carrell has not been under a disability as defined by
the Act since June 2, 2016, through the date of the decision. (R. 32).
III. Standard of Review
Review of the Commissioner’s decision is limited to a determination
whether that decision is supported by substantial evidence and whether the
Commissioner applied correct legal standards. Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004). A district court must review the
Commissioner’s findings of fact with deference and may not reconsider the facts,
reevaluate the evidence, or substitute its judgment for that of the Commissioner.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007);
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district court
7
must “scrutinize the record as a whole to determine whether the decision reached is
reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (internal citations omitted). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. It is “more than a scintilla, but less than a
preponderance.” Id. A district court must uphold factual findings supported by
substantial evidence, even if the preponderance of the evidence is against those
findings. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
A district court reviews the Commissioner’s legal conclusions de novo.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner’s]
failure to apply the correct law or to provide the reviewing court with sufficient
reasoning for determining that the proper legal analysis has been conducted
mandates reversal.” Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir.
1991).
IV. Discussion
There are two issues presented in Carrell’s brief: (1) whether the ALJ
properly evaluated Carrell’s complaints of pain and (2) whether the ALJ articulated
good cause for according less weight to the opinions of Carrell’s treating
physician. (Doc. 17 at 4-14).
8
A. Carrell’s Pain Complaints
The first issue concerns the adequacy of the ALJ’s evaluation of Carrell’s
pain complaints. In addressing a claimant’s subjective description of pain and
symptoms, the law is clear:
In order to establish a disability based on testimony of pain and other
symptoms, the claimant must satisfy two parts of a three-part test
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. See Holt
v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If the ALJ
discredits subjective testimony, he must articulate explicit and
adequate reasons for doing so. See Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987).
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (bold added); see also
20 C.F.R. §§ 404.1529. If a claimant satisfies the first part of the test, the ALJ
must evaluate their intensity, persistence, and effect on the claimant’s ability to
work. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1529(c) & (d); 416.929(c)
& (d). While evaluating the evidence, the ALJ must consider whether
inconsistencies exist within the evidence or between the claimant’s statements and
the evidence, including his history, medical signs and laboratory findings, and
statements by medical sources or other sources about how her symptoms affect her.
20 C.F.R. §§ 404.1529(c)(4) & 416.929(c)(4). In determining whether substantial
evidence supports an ALJ’s credibility determination, “[t]he question is not . . .
whether the ALJ could have reasonably credited [the claimant’s] testimony, but
9
whether the ALJ was clearly wrong to discredit it.” Werner v. Comm’r of Soc.
Sec., 421 F. App’x 935, 939 (11th Cir. 2011). The ALJ is not required explicitly to
conduct a symptom analysis, but the reasons for his or her findings must be clear
enough that they are obvious to a reviewing court. See Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995). “A clearly articulated credibility finding with
substantial supporting evidence in the record will not be disturbed by a reviewing
court.” Id. (citation omitted).
The ALJ found that Carrell’s medically determinable impairments could
reasonably be expected to produce the alleged symptoms, but his statements
regarding the intensity, persistence, and limiting effects of these symptoms were
not entirely consistent with the medical evidence and other evidence in the record.
(R. 24). As will be discussed in detail below, the court finds that the ALJ’s
determination is supported by substantial evidence.
As noted previously, Carrell alleges disability as of July 8, 2016, due to
severe phantom left leg pain and infections from his below the knee amputation.
(R. 45). At his administrative hearing, he testified that he stopped working because
of the phantom pain in his leg and recurrent infections. (Id.). He explained his
prosthetic became unusable and that it needs a new sock, which he is unable to
afford. (R.45-46). Concerning his activities, Carrell stated that he rarely drives
because of his medication. (R.48). He is able to bathe, but it takes him about 1½
10
hours to do so and get dressed. (R. 49). He spends most of his day lying down, he
could sit for only a couple of hours; stand or walk for possibly an hour; frequently
had to elevate his leg above his heart; and could not lift greater than 10 pounds.
(R. 50-53, 56). He gets sores on his leg every two weeks to the point he cannot use
his prosthesis for 3-4 days at a time. (Id.). Carrell explained he is unable to afford
treatment from an orthopedic specialist or a neurologist. (R. 52). He further stated
that as a result of his condition he is bedridden approximately 15 days a month.
(R.50). He described his phantom pain as sharp, piercing needles. (R. 57).
Carrell argues that the “ALJ erroneously relies upon isolated notations in the
record and fails to properly consider the medical record in its entirety.” (Doc. 17 at
6). He further argues that the “longitudinal medical record … is consistent with
[his] allegations of debilitating phantom leg pain and resulting limitations.” (Id. at
7). More specifically, Carrell argues that the ALJ’s decision is incorrect because
the evidence shows that (1) Dr. Ham “consistently prescribed multiple medications
which included narcotic pain medication, which is consistent with treatment for at
least chronic moderately severe pain and (2) he continued to have phantom pain.
(Id. at 9). Carrell also challenges the ALJ’s conclusion concerning the January 13,
2017, emergency room treatment note discussing his work activity at the time of
his difficulty. (Id.).
11
The Commissioner responds that substantial evidence supports the ALJ’s
subjective system assessment. (Doc. 18 at 5).
Carrell’s below the knee amputation on May 1, 2013, was the result of a
motor vehicle accident three days earlier. (R. 405). He experienced pain and
difficulty with his prosthesis in November and December 2013. (R. 925, 928).
Specifically, he had difficulty when he returned to work. (R. 928). Dr. Jason
Ham’s notes reflect that Carrell complained that his amputation site became very
painful after extended periods of weight bearing activity. (R. 929). It was
determined that he had a redundant stump. He had revision surgery on January 6,
2014, due to his inability to get into a prosthesis.6 (R. 382, 557).
Carrell’s medical records evidence that he regularly reported lower
extremity pain and tenderness during many of his doctor’s visits from 2014
through 2017. (R. 931 (Feb. 2014), 935 (July 2014), (R. 943-44 (May 2016), (R.
946 (June 2016), R. 966 (Sept. 2016), R. 964 (Nov. 2016), R. 960-61 (Dec. 2016),
R. 958 (Feb. 2017), March 2017 (R. 957), and (R. 1111 (July 2017)). The records
document the reports of phantom pain as stabbing, throbbing, pressure and
twisting. (R. 944, 957, 958, 960, 961, 966-67). However, with the exception of a
one-time rash, Dr. Ham routinely observed no evidence of cyanosis, rashes,
redness, edema, or swelling. (R 957, 960, 962, 964, 966 & 1111-12). Additionally,
6
Dr. Daniel Fisher, Jr. noted that Carrell “was otherwise extremely healthy.” (R. 557).
12
Carrell also frequently denied numbness, tingling, swelling, redness, warmth, or
ecchymosis (skin discoloration from blood underneath the skin). (R. 957, 959,
962, 966 & 1111). Carrell was treated with multiple medications including
Clonazepam, Gabapentin, Norco and Oxycodone. (R. 956. 958-59, 961, 963, 965,
982 & 1110).
Carrell also sought treatment on an emergency basis for left lower leg pain
on five occasions in a three year period. The first was March 13, 2014, after he
fell and hurt his left stump. (R. 662). The second was on October 16, 2014, when
had complaints of increased pain. (R. 657). The notes reflect that he had recently
returned to work and was spending more time in his prosthetic leg. (R. 657). The
third one was on May 12, 2016, when fell again. (R. 787). An MRI revealed only
mild bone marrow edema suggestive of a stress reaction and trace joint effusion.
(R. 785). The fourth one was on January 13, 2017, when he experience lower back
and lower leg phantom pain.7 (R. 1087). The last was on April 4, 2017, when he
experienced phantom left leg pain at the level of 9/10. (R. 1094, 1099). A
sonographic study of his leg done at that time was unremarkable and showed no
evidence of a mass, cyst, or fluid collection. (R. 1093).
In evaluating this evidence, the ALJ found that the treatment notes did not
support Carrell’s subjective complaints. (R. 28). To the extent Carrell alleged
7
The treatment notes indicate that Carrell had been working and bending over for two to three
hours. (R. 1088).
13
difficulty walking due to phantom pain, the ALJ explained that his examinations
were unremarkable with the exception of some tenderness and a one-time rash. (R.
24, 26). To the extent he complained of left leg and phantom pain, the ALJ found
that the records showed that Dr. Ham frequently observed that Carrell walked
normally, appeared healthy, and was in no apparent distress. (R. 24-25, 28, 957,
960, 962, 964, 966, 1111-12). Additionally, the records show that Carrell
frequently denied weakness, catching/locking, popping/clicking, buckling,
grinding, or instability. (R. 27, 957, 959, 962, 966, 1111).
To the extent Carrell testified that his prosthetic was “unusable” due to pain
and infection, the ALJ found that the medical records did not document frequent
irritation or infection. (R. 26). His determination that Dr. Ham routinely observed
no evidence of cyanosis, rashes, redness, edema, or swelling is correct. (See R. 2425, 28, 957, 960, 962, 964, 966, 1111-12). Additionally, as just noted, Carrell also
frequently denied having such symptoms. (See R. 957, 959, 962, 966, 1111).
To the extent Carrell testified that indigence prevented him from obtaining
adequate care, the ALJ stated that coverage of pre-existing conditions is one of the
main provisions of the Affordable Care Act.8 (R. 29). Importantly, he also correctly
noted that there was no evidence in the medical record showing that Carrell had
been denied treatment for financial reasons. (Id.). The ALJ also noted that there
8
See, e.g., 45 C.F.R. § 147.108(a).
14
was no evidence Carrell had been denied care from another facility due to financial
reasons. (Id.).
In assessing Carrell’s complaints, the ALJ compared other portions of his
testimony with the other medical evidence. First, he noted that while Carrell
claimed that he had not worked since 2016, records from his January 13, 2017,
emergency room visit stated that he reported he had been “doing straining work
with [his] back” and had been “bending over for 2-3 hours” while working. (R. 25,
28, 1087-88). This clearly brings his credulity concerning his complaints into
question. Second, the ALJ noted that while Carrell stated that he could not, and
had not, driven in the prior year, treatment notes from January 13, 2017, ER visit
showed Carrell reported he was driving himself. (R. 28, 56, 60-61, 1087-88). The
ALJ explained that driving requires sitting in one place for a period of time while
simultaneously using one’s feet to operate foot controls. (R. 28-29). Though
Carrell also alleged that his medications caused drowsiness and impacted his
ability to drive, (R. 61), the ALJ noted that the record consistently documented that
Carrell was alert and oriented. (R. 29, 789, 796, 802, 805-06, 809, 819, 823, 1088,
1096, 1104, 1107). The ALJ’s decision is further supported by Carrell’s September
20, 2016, disability report wherein he denied experiencing any side effects from
the listed medications. (R. 261). Third, the ALJ noted that to the extent Carrell
testified he needed to elevate his legs above his chest, (R. 56), there is no evidence
15
of such a restriction in the treatment notes. (R. 29). Carrell has not adequately
challenged any of these findings.
In sum, the ALJ correctly considered “the consistency of [Carrell’s]
statements” with the remainder of the evidence.
See SSR 16-3p, 2017 WL
5180304, at *8. His determinations are supported by substantial evidence. This
claim, therefore, is without merit.
B. Medical Opinion Evidence
Carrell next asserts that the ALJ erred in failing to articulate good cause for
according less weight to the opinion of Dr. Ham as his treating physician. (Doc.
17 at 10). He further argues that the ALJ did not have good cause for discounting
Dr. Ham’s opinion. (Id.). The Commissioner counters that substantial evidence
supports the ALJ’s decision. (Doc. 18 at 11). The court agrees with the
Commissioner.
The evidence concerning the relevant opinions by Dr. Ham is as follows. On
November 7, 2016, Dr. Ham completed a Medical Source Opinion (“MSO”) form
wherein he stated that Carrell could sit without limitation, stand for four hours,
walk for two hours, and lift up to 50 pounds occasionally with various postural
limitations.
(R. 953-54). He noted that these limitations are due to frequent
irritation and infection at the amputation site. (R. 954). On April 10, 2017, he
opined, in part, in a Physical Capacity Evaluation that Carrell could sit for four
16
hours, stand for one hour, walk for one hour, occasionally lift up to five pounds,
and never use either leg to push or pull. (R. 978-79). On a “Non-exertional Factors
Affecting Your Patient” form, Dr. Ham rated Carrell’s pain as “severe” and further
opined that he would have to frequently lie down to the relieve pain and that
prescribed medications made Carrell drowsy. (R. 980). Dr. Ham also wrote a letter
with the evaluations stating, in pertinent part, that Carrell needed special care
“around the clock” on an intermittent basis, potentially up to four days a week. (R.
983).
Dr. Krishna Reddy, the State Agency Medical Consultant, opined on
September 7, 2016, that Carrell could perform a light range of work. (R. 25-26,
29, 85-87). The ALJ assigned substantial weight to that opinion. (R. 29).
The ALJ bears the responsibility for assessing the extent of a claimant’s
work-related abilities and limitations based on all relevant evidence in the record,
including the medical opinions submitted by any treating, examining, or nonexamining source. (See Doc. 18 at 13 (citing 20 C.F.R. §§ 404.1545(a),
416.945(a)). A treating physician’s opinion is generally entitled to deference –
substantial or considerable weight. See Phillips v. Barnhart¸ 357 F.3d 1240-41
(11th Cir. 2004); 20 C.F.R. §§ 404.1527(c), 416.927(c)(2). An ALJ may, however,
reject the opinion of a treating physician for “good cause” such as where the
opinion is conclusory, not bolstered by the evidence, or inconsistent with the
17
record. Phillips, 357 F.3d at 1240-41. The ALJ must clearly articulate his or her
reasons. Id. at 1241. This court is not to “second guess the ALJ about the weight
the treating physician’s opinion deserves so long as [the ALJ] articulates a specific
justification for it.” Hunter v. Comm’r of Soc. Sec., 808 F.3d 818, 823 (11th Cir.
2015).
Where the treating source opinion is not given controlling weight, the ALJ is
to weigh all medical opinions by considering the examining or treating relationship
with the individual, the evidence the physician presents to support his or her
opinion, the consistency of the physician’s opinion with the record as a whole, the
physician’s specialty, and other factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
Additionally, a state agency medical consultant’s opinions may be entitled to
greater weight than a treating source’s opinion if it is supported by evidence in the
record and a better explanation for the opinion. See 20 C.F.R. §§ 404.1527(e)(2)(i),
416.927(e)(2)(i); Social Security Ruling (SSR) 96-6p, 1996 WL 374180, at *2-3
(July 2, 1996); Jarrett v. Comm’r of Soc. Sec., 422 F. App’x 869, 874 (11th Cir.
Apr. 11, 2011) (the ALJ did not err in relying on the opinions of the nonexamining physicians over the plaintiff’s treating physician).
Turning to the present matter, Carrell argues that the ALJ’s reliance on the
variations in Dr. Ham’s November 2016 and April 2017 evaluations and opinions
is insufficient to discount his opinion. (Doc. 17 at 11-12). Additionally, he argues
18
that, contrary to the ALJ’s determination, the April 2017 evaluation and opinions
are consistent with Dr. Ham’s treatment notes. (Id. at 12). Next, Carrell argues
that the ALJ did not give proper weight to the treating relationship between himself
and Dr. Ham. (Id. at 13). As a part of this claim, Carrell also challenges Dr.
Krishna Reddy’s report to the extent it did not include a review of subsequent
medical evidence. (Id. at 14).
The court finds that the ALJ’s decision to afford “little weight to Dr. Ham’s
‘opinions’” is supported by substantial evidence. (R. 28). The ALJ’s assessment
is in large part premised on two points: (1) Dr. Ham did not explain the abrupt
change in his opinion during the relatively short period (five months) between
November 2016 and April 2017 and (2) the overall record does not support his
conclusions. (R. 26-28)
As to the first point, the court finds the ALJ is correct in discounting Dr.
Ham’s April opinions because there is no substantial explanation for the changed
opinions. Dr. Ham simply circled various numbers and checked various boxes on
the April 2017 forms significantly reducing Carrell’s reported abilities, offering
little explanation or support. The only explanations offered on the forms for the
changes were “pain at the amputation site” and “drowsiness” from medication. (R.
978, 980). In the “Objective signs of Pain” section on the Non-Exertional Factors
19
form, Dr. Ham simply checked boxes indicating “redness” and “muscle spasm.”9
(R. 980). Accordingly, the court finds this reasoning supports the ALJ’s decision
to affording the opinions less weight. See Burgin v. Comm’r of Soc. Sec., 420 F.
App’x 901, 903 (11th Cir. 2011) (stating Commissioner was free to give little
weight to opinion that merely consisted of items checked on a survey with no
supporting explanations); White v. Colvin, 2016 WL 7341709 (M.D. Ala. 2016)
(stating “[r]eports that are conclusory ‘because they merely consist[ ] of items
checked on a survey, with no supporting explanations’ have little probative
value”).
To the extent Carrell argues that the variations can be explained, in part,
based on the fact that the November 2016 “MSO did not address non-exertional
factors,” (doc. 17 at 12), that the April 2017 report does, the court is not impressed.
That is not the point of contention. The issue is that the April 2017 report presents
a dramatically different view of Carrell. For instance, the November evaluation
states Harrell has no limit on his ability to sit and can stand and walk four and
hours, respectively, during a work day. (R. 953). In contrast, the April evaluation
states he could only sit for four hours and stand and walk for one hour during an
eight-hour work day. (R. 978). Similarly, the November evaluation states Harrell
can lift and carry five pounds constantly, twenty pounds frequently, and 50 pounds
9
The “Other” box was also checked, but there was no further explanation. (R. 980).
20
occasionally. (R. 953). The April evaluation states he can frequently lift five
pounds, occasionally lift up to twenty pounds, and never lift more than twenty
pounds and he can only occasionally carry up to five pounds and never carry more
than five pounds. (R. 979). Lastly, the November evaluation states he can
frequently push or pull with each leg and he could constantly reach, handle, finger
and feel. (R. 953). In April, it was reported that he could never use his legs or feet
and never could reach and only frequently could grasp, finger or handle. (R. 979).
These are the variances that are not explained by Dr. Ham. To the extent that
Carrell offers Dr. Ham’s letter in support of the variances, as is discussed more
fully below, his conclusory and unsupported statements therein are insufficient to
undermine the determination of the ALJ.
As to the second point, the lack of support in the remainder of the record, the
court again finds that the ALJ is correct in his determination that the record does
not support Dr. Ham’s assessment of Harrell’s contentions. Plaintiff’s counsel is
correct in his argument that the treatment notes document that Harrell complained
of phantom pain during numerous visits. (See Doc. 17 at 12 (citing R. 944, 957,
958, 960, 961, 966, 967, 1111)). That is not sufficient to undermine the ALJ’s
determination.
21
That decision is due to be affirmed because, as noted by the ALJ, the
intervening medical evidence does not demonstrate any deterioration in Carrell’s
condition. (R. 26, 28). As noted by the ALJ and as discussed previously herein,
the record generally failed to document muscle spasms or redness. (R. 28, 957,
959, 962, 966 & 1111). Carrell routinely did not experience cyanosis, rashes,
redness, edema, or swelling in his left leg.10 (R 957, 960, 962, 964, 966 & 111112). Carrell also frequently denied numbness, tingling, swelling, redness, warmth,
or ecchymosis. (R. 957, 959, 962, 966 & 1111). His treatment typically consisted
of multiple medications.
(R. 956. 958-59, 961, 963, 965, 982 & 1110).
Additionally, Dr. Ham consistently noted that Carrell ambulated normally, was in
no apparent distress. (R. 25-27, 962, 957, 960, 964). Diagnostic imaging on April
4, 2017, also revealed no evidence of a mass, a cyst, or fluid collection at in
Carrell’s left leg. (R 1093). Accordingly, the court finds that the medical records
support the ALJ’s determination.
Still further, Carrell’s activities do not support Dr. Ham’s claim that he
could not use either of his feet. (R. 28, 1087-88). See Forrester v. Comm’r of Soc.
Sec., 455 F. App’x 899, 902 (11th Cir. 2012) (stating “the ALJ did not need to give
a treating physician’s opinion considerable weight if evidence of the claimant’s
daily activities contracted the opinion...”). Specifically, the evidence shows that
10
Dr. Ham did observe a rash one time on November 15, 2016. (R. 962).
22
Carrell drives, bathes and dresses himself and otherwise takes care of himself,
although he does not do any chores around the house.
Under the circumstances, the ALJ properly relied on the opinion of Dr.
Reddy that Carrell could perform a range of light work. (R. 25-26, 29, 85-87). In
accepting Dr. Reddy’s opinion, the ALJ stated that the opinion was supported by
the medical record. (R. 29). Specifically, the ALJ stated that the opinion was
supported by Dr. Ham’s initial opinion on November 7, 2016 opinion x-rays
performed just prior to the alleged onset of Carrell’s disability, and sonographic
imaging studies. (R. 29, 815 (May 2016), 953-54 (Nov. 2016 MSO), 1093 (April
2017 imaging)). Accordingly, the court finds that substantial evidence supports the
ALJ’s evaluation of the medical opinion evidence. See Duval v. Comm’r of Soc.
Sec., 628 F. App’x 703, 711 (11th Cir. 2015) (finding ALJ properly relied on
opinions of reviewing medical providers where ALJ properly rejected the treating
medical providers’ opinions).
To the extent that Carrell argues that Dr. Reddy did not have the benefit of
reviewing subsequent medical evidence, which documents his ongoing pain, the
court is not impressed. This conclusory statement is not sufficient to undermine
the ALJ’s reasoned determination.
Counsel has pointed to nothing in the
subsequent records that would impact Dr. Reddy’s determination.
23
V. Conclusion
Having reviewed the administrative record and considered all of the
arguments presented by the parties, the undersigned find the Commissioner’s
decision is supported by substantial evidence and in accordance with applicable
law. Therefore, the court finds that the ALJ’s decision is due to be AFFIRMED.
A separate order will be entered.
DATED, this 19th day of April, 2019.
_________________________________
JOHN E. OTT
Chief United States Magistrate Judge
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