Emberg v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION and ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/5/2015. (AHI) Modified on 1/5/2015 (AHI ).

FILED
2015 Jan-05 PM 12:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
JANET EMBERG,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 6:14-cv-0313-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Janet Emberg, commenced this action on February 20, 2014,
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 her 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 the ALJ improperly considered the opinions of her treating
physicians. Upon review of the record, the court concludes that those contentions
lack merit, and that the Commissioner’s ruling is due to be affirmed.
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. 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. § 416.927(e).
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

2

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(d). See also Wheeler v. Heckler, 784 F.2d 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.”).
A.

Dr. Raquib
Dr. Farouk Raquib, the treating physician for claimant’s physical problems,

completed a “Functional Assessment (Physical)” form on January 5, 2012. He
indicated that claimant would need to alternate between sitting, standing, and walking
every twenty minutes, and that she would need to rest for ten minutes between each
activity. She could never lift or carry any amount of weight. She could never climb,
stoop, crouch, or crawl, but she could occasionally push and pull with both arms and
legs, balance, kneel, reach, handle, feel, talk, and hear. She could never be exposed
to extreme cold, vibration, moving mechanical parts, high places, or environmental
irritants like fumes, noxious odors, dust, mists, gases, and poor ventilation. She could
occasionally be exposed to extreme heat, wetness, and humidity. She should only be
exposed to very quiet noise levels.1
Dr. Raquib also completed a “Clinical Assessment of Pain” form the same day.
1

Tr. 401-02.
3

He indicated that pain would be present to such an extent as to negatively affect
adequate performance of daily activities or work, and that physical activity would
greatly increase claimant’s pain to such a degree as to cause distraction from or total
abandonment of tasks. He opined that claimant’s medical condition and resulting
pain would cause more than four absences from work each month, and that the side
effects of claimant’s medications could be expected to be severe and to limit her
effectiveness due to distraction, inattention, and drowsiness. Finally, Dr. Raquib
indicated that claimant’s objectively determined medical conditions could reasonably
be expected to produce the pain of which she complained, and that claimant
experienced pain at the level described as of January 4, 2011, her alleged onset date.2
The final form completed by Dr. Raquib on January 5, 2012 was a “Clinical
Assessment of Fatigue/Weakness” form.

Dr. Raquib indicated that claimant

experienced fatigue and/or weakness to such an extent as to negatively affect
adequate performance of daily activities or work, and that physical activity would
greatly increase claimant’s fatigue and/or weakness to such a degree as to cause total
abandonment of tasks. Dr. Raquib opined that the side effects of claimant’s
prescribed medications could be expected to be severe and to limit her effectiveness
due to distraction, inattention, and drowsiness. Finally, Dr. Raquib indicated that
claimant suffered an underlying medical condition that could reasonably be expected
2

Tr. 398-99.
4

to produce the fatigue and/or weakness she experienced.3
The ALJ afforded only minimal weight to Dr. Raquib’s opinions.4 He reasoned
that the limitations imposed by Dr. Raquib were inconsistent with claimant’s reported
activities, including caring for her children, performing some household chores with
rest, driving alone, shopping for groceries, and paying bills.5 He also reasoned that
Dr. Raquib’s assessments were inconsistent with his own treatment notes, which
indicated that claimant experienced only moderate pain and was sometimes noncompliant with her treatment regimen.6
The record provides ample support for the ALJ’s conclusion. Indeed, Dr.
Raquib’s notes repeatedly state that claimant’s urine drug screens were “inconsistent
with our plan of care.”7 Moreover, Dr. Raquib repeatedly noted that claimant’s pain
was under control, or at only a moderate level.8 On January 5, 2012, the same day Dr.
Raquib assessed claimant with disabling pain, his treatment notes state that claimant
experienced pain at only a level 6. Claimant was “in no distress” and “in good
3

Tr. 400.

4

Tr. 29.

5

Tr. 23-24, 27.

6

Tr. 27-28.

7

Tr. 296 (April 4, 2011), 300 (February 3, 2011), 393 (September 1, 2011), 396 (July 7,
2011), 397 (June 2, 2011), 415 (May 31, 2012), 444 (September 25, 2012).
8

Tr. 300 (February 3, 2011: pain “under good control”), 296 (April 4, 2011: pain “stable”
at a level 5), 397 (June 2, 2011: claimant “alert” and “cheerful” despite reporting level 8 pain), 394
(August 3, 2011: despite reporting pain at level 9, claimant “always stays busy” with her children),
393 (September 1, 2011: claimant “functioning well” with “no physical . . . impairment” and only
level 5 pain).
5

spirits.” Dr. Raquib also stated that claimant’s pain was “well controlled” on
medication, which had “been effective in decreasing pain and increasing level of
functioning and improved quality of life.”9 Only a month later, on February 6, 2012,
claimant’s pain level had decreased to a 3.10 Even when the pain level increased
again to a 6 in March, and an 8 in April and May, Dr. Raquib still stated that the pain
was “well controlled” with her medications.11 On June 28, 2012, the pain level was
back down to a 4, and Dr. Raquib stated that claimant could travel for up to two hours
without stopping, even though he inconsistently indicated that claimant could only
sit, stand, and walk for thirty minutes at a time.12 Taken as a whole, Dr. Raquib’s
records simply do not indicate the presence of disabling pain on a sustained basis that
would prevent all work activity.
Additionally, the ALJ’s decision to reject Dr. Raquib’s assessments was
supported by the reports of Dr. Samia Moizuddin, the consultative physical examiner,
and Dr. Robert Heilpern, the state agency physician. Even though Dr. Moizuddin
indicated that claimant could only sit, stand, and walk for a total of six hours during
an eight-hour day, the ALJ concluded that assessment was based primarily upon
claimant’s subjective complaints, as the remainder of Dr. Moizuddin’s assessments
9

Tr. 434-37.

10

Tr. 429.

11

Tr. 412, 415, 416, 419, 421, 423, 425, 427.

12

Tr. 407.
6

were not nearly so limiting. Moreover, most of Dr. Moizuddin’s clinical findings —
including range of motion, dexterity, grip strength, muscle strength, muscle tone,
squatting, and heel-toe walk — were normal.13 Dr. Heilpern also assessed functional
limitations that were far less severe than those assessed by Dr. Raquib.14
B.

Dr. Scott
Warren Scott, claimant’s treating psychiatrist, completed a “Medical

Assessment Form (Mental)” on June 29, 2011. He indicated that claimant had severe
limitations in her ability to follow work rules, relate to co-workers, deal with the
public, use judgment, interact with supervisors, deal with work stresses, function
independently, and maintain attention and concentration.

She had moderate

limitations in her ability to understand, remember, and carry out even simple
instructions. She also had moderate impairment of her ability to maintain personal
appearance, behave in an emotionally stable manner, relate predictably in social
situations, and demonstrate reliability.

Dr. Scott also stated that claimant’s

concentration level was poor.15
The ALJ afforded only minimal weight to Dr. Scott’s assessment because it
was inconsistent with Dr. Scott’s own records and the other record evidence

13

Tr. 337-42.

14

See Tr. 316-22.

15

Tr. 391-92.
7

regarding claimant’s psychiatric condition.16 That conclusion was supported by
substantial evidence. Despite claimant’s reports of sleep problems, crying episodes
and irritability during an office visit on June 8, 2011, Dr. Scott assessed a GAF score
of 55, indicating only moderate symptoms. Dr. Scott’s clinical findings also were
normal, other than depressed mood and limited insight. Claimant had adequate
grooming, appropriate speech, appropriate affect, cooperative behavior, and logical
thought. Her judgment was fair, and her concentration was good. She was oriented
as to person, place, and thing, and she did not have any memory impairment.17
Claimant reported improvement with her medications by June 28, 2011, one day
before Dr. Scott completed the assessment form indicating severe limitations. Her
mood had improved to “euthymic,” her insight had improved to “good,” and she still
received a GAF score of 55.18 Claimant did not return to Dr. Scott until January 16,
2012, by which time her GAF score had elevated to 60. All of the clinical findings
from that visit were normal, and Dr. Scott stated that claimant was “doing okay” as
long as she was on her medications.19 On February 29, 2012, claimant was “doing
well” because her medications were working. All of the clinical findings were

16

Tr. 29.

17

Tr. 405.

18

Tr. 404.

19

Tr. 403.
8

normal, and her GAF score increased to 65, indicating only mild symptoms.20 These
treatment records do not support Dr. Scott’s assessment of disabling mental
limitations.
The ALJ’s decision to reject Dr. Scott’s opinion also was supported by other
medical evidence of claimant’s mental condition. Sylvia Colon, the consultative
psychiatric examiner, indicated on July 14, 2012 that claimant experienced only slight
to moderate impairments in her ability to understand, remember, and carry out
instructions, and her ability to respond appropriately to supervision, co-workers, and
work pressures in a work setting.21 She stated that claimant’s prognosis for recovery
was “fair” as long as she received appropriate treatment. Claimant would not likely
be able to return to her previous employment as an LPN, but if she “continues to be
stable she may be able to work at a less demanding job.”22
Finally, the ALJ’s decision was supported by the findings of Melissa F.
Jackson, Ph.D., the state agency psychological examiner. Dr. Jackson noted that
claimant suffered from bipolar disorder, generalized anxiety disorder, and
polysubstance dependence in sustained remission.23 Claimant experienced moderate
restriction of her activities of daily living; moderate difficulty in maintaining social
20

Tr. 439.

21

Tr. 329-30.

22

Tr. 335.

23

Tr. 304, 306, 309.
9

functioning; and moderate difficulty in maintaining concentration, persistence, and
pace. She had not experienced any extended episodes of decompensation.24 Claimant
had moderate limitation of her ability to understand, remember, and carry out detailed
instructions; her ability to maintain attention and concentration for extended periods;
her ability to interact appropriately with the general public; her ability to accept
instructions and respond appropriately to criticism from supervisors; and her ability
to respond appropriately to changes in the work setting. She was not significantly
limited in any other areas.25
C.

Conclusion and Order
In summary, the ALJ adequately articulated his reasons for rejecting the

assessment of disabling limitations by claimant’s treating physicians. The ALJ’s
decision was based upon substantial evidence and in accordance with applicable legal
standards. Accordingly, the decision of the Commissioner is AFFIRMED. Costs are
taxed against claimant. The Clerk is directed to close this file.
DONE this 5th day of January, 2015.

______________________________
United States District Judge

24

Tr. 311.

25

Tr. 324-26.
10