McClain v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be AFFIRMED. Signed by Magistrate Judge P. Bradley Murray on 9/28/2017. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL,
Acting Commissioner of Social
CIVIL ACTION NO. 16-0547-MU
MEMORANDUM OPINION AND ORDER
Plaintiff Angel McClain brings this action, pursuant to 42 U.S.C. §§ 405(g),
seeking judicial review of a final decision of the Commissioner of Social Security
(“the Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“the Act”). The parties have consented to
the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. §
636(c), for all proceedings in this Court. (Doc. 30 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the parties in this case
consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, … order the entry of a final judgment, and conduct all
post-judgment proceedings.”)). See also Doc. 32. Upon consideration of the
administrative record, McClain’s brief, the Commissioner’s brief, and oral
argument presented at the August 15, 2017 hearing before the undersigned
Nancy A. Berryhill is the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g),
Nancy A. Berryhill is substituted as the Acting Commissioner in lieu of Social
Security Administration, Commissioner, as the defendant in this action.
Magistrate Judge, it is determined that the Commissioner’s decision denying
benefits should be affirmed.2
I. PROCEDURAL HISTORY
McClain applied for DIB, under Title II of the Act, 42 U.S.C. §§ 423 - 425,
on December 11, 2012, alleging disability beginning on August 20, 2012. (Tr.17172). Her application was denied at the initial level of administrative review on
February 7, 2013. (Tr. 115-17). On March 14, 2013, McClain requested a hearing
by an Administrative Law Judge (ALJ). (Tr. 122-23). After a hearing was held on
May 22, 2014, the ALJ issued an unfavorable decision finding that McClain was
not under a disability from the date the application was filed through the date of
the decision, August 25, 2014. (Tr. 51-63). McClain appealed the ALJ’s decision
to the Appeals Council, and, on March 28, 2016, the Appeals Council denied her
request for review of the ALJ’s decision, thereby making the ALJ’s decision the
final decision of the Commissioner. (Tr. 1-4, 22).
After exhausting her administrative remedies, Denton sought judicial
review in this Court, pursuant to 42 U.S.C. §§ 405(g). (Doc. 1). The
Commissioner filed an answer and the social security transcript on November 29,
2016. (Docs. 12, 13). Both parties filed briefs setting forth their respective
positions. (Docs. 16, 24, 25). Oral argument was held before the undersigned
Any appeal taken from this Order and Judgment shall be made to the Eleventh
Circuit Court of Appeals. See Doc. 30. (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for
the judicial circuit in the same manner as an appeal from any other judgment of
this district court.”).
Magistrate Judge on August 15, 2017. (Doc. 31). The case is now ripe for
II. CLAIMS ON APPEAL
McClain alleges that the ALJ’s decision to deny her benefits is in error for
the following reasons:
1. The ALJ erred in failing to give proper weight to her treating physician’s
2. The ALJ failed to assess the intensity and persistence of her symptoms
pursuant to SSR 16-3p;
3. The ALJ failed to state adequate reasons for her credibility finding;
4. The ALJ’s finding in her residual functional capacity (RFC) evaluation that
McClain can perform light work is not supported by substantial evidence; and
5. The Appeals Council erroneously failed to review new medical evidence that
was submitted by McClain after the date of the ALJ’s Decision.
(Doc. 16 at p. 3).
III. BACKGROUND FACTS
McClain was born on January 11, 1967, and was almost 46 years old at
the time she filed her claim for benefits. (Tr. 165). McLain initially alleged
disability due to right shoulder tendonitis, iron deficiency, sciatica and lower back
pain, and anxiety. (Tr. 203). She graduated from high school in regular classes in
1985 and has taken some college classes. (Tr. 74, 204). She worked as a
seamstress at a clothing factory for over ten years and as a lunch room worker at
a school from 2001 until November 7, 2012. (Tr. 204, 219). In her Function
Report, McClain stated that her daily activities consist of taking her medication,
eating, watching television, reading her Bible and praying. (Tr. 227). She stated
that her daughter cooks for her and her daughter and son do household indoor
and outdoor chores for her because it hurts to do these things or she doesn’t feel
like doing them. (Tr. 229-30). She stated that she is able to drive but only goes
out to doctor’s appointments and to shop. (Tr. 88, 230). She stated that she goes
to church when she can. (Tr. 231). She is able to pay bills, count change and
handle a saving account. (Id.). After conducting a hearing, the ALJ made a
determination that McClain had not been under a disability during the relevant
time period, and thus, was not entitled to benefits. (Tr. 51-63).
IV. ALJ’S DECISION
After considering all of the evidence, the ALJ made the following findings
that are relevant to the issues presented in her August 25, 2014 decision:
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except she can never use her right hand
for pushing and/or pulling of hand controls. She can never
reach overhead with the right upper extremity. She can
frequently reach in other directions, handle and finger with
the right upper extremity. She can occasionally climb
ramps and stairs. She can never climb ladders and
scaffolds. She can frequently stoop, kneel, crouch, and
crawl. She can never work at activities involving
unprotected heights and hazardous moving mechanical
parts. She should avoid concentrated exposure to extreme
cold. She should avoid frequent exposure to dust, fumes,
gases, and other pulmonary irritants. I further find that the
claimant is limited to simple tasks. She can occasionally
interact with the public. Contact with supervisors and
coworkers should be brief and casual.
In making this finding, the undersigned has considered all symptoms
and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR 404.1529 and
SSRs 96-4p and 96-7p. The undersigned has also considered
opinion evidence in accordance with the requirements of 20 CFR
404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In connection with her application for disability benefits, the claimant
provided responses to a Disability Report. She reported that she was
limited in her ability to work due to severe tendonitis and muscle
spasms of the right shoulder, iron deficiency, sciatica and lower back
pain, and anxiety. She stated that she stopped working on November
7, 2012, because of her condition (Exhibit 3E).
The claimant completed a Function Report on December 14, 2012.
She reported that she lives in a house with family. From the time she
wakes up until going to bed, she takes her medication, eats a little,
sometimes watches television, reads her Bible, and prays. She does
not take care of anyone else and she does not take care of pets. Her
condition affects her sleep because she hurts all night due to lying on
her back or shoulder. It hurts to move around to dress. It hurts to
move in the shower. It hurts to do her hair, so her daughter does it.
She has no problem with shaving, feeding herself or using the toilet.
She does not need special reminders to take care of personal needs
and grooming. She does not need help or reminders taking medicine.
She does not prepare her own meals [sic] her daughter prepares the
meals. Her daughter and son do the household work for her now. She
does not do house or yard work because it hurts for her to do them.
She only goes outside if she has a doctor's appointment. When
going out, she travels by riding in a car. She can go out alone and
she does drive. She shops by phone for kid 's clothes once every 4 to
5 months or as needed. She is able to pay bills, count change, and
use a checkbook or money order. For hobbies and interests, she
listed watching television when she is not sleeping. Her medication
puts her to sleep. She does not spend time with others. She goes to
church when she can. Sometimes it makes her feel bad being around
family, friends, neighbors, or others and she wants to stay to herself.
She likes being by herself. Her condition affects lifting, squatting,
bending, standing, reaching, walking, sitting, kneeling, stair climbing,
memory, completing tasks, concentration, following instructions, using
hands, and getting along with others. She can walk for about 50
yards before needing to stop and rest. She will need to rest for about
an hour before she can resume walking. She can pay attention for
about one hour. She cannot follow written or spoken instructions
"good." She is never around authority figures. She does not handle
stress or changes in a routine well. She wears glasses (Exhibit 8E).
Robert Estock, M.D., a State Agency psychiatrist, completed a
Psychiatric Review Technique form on February 6, 2013. He opined
that the claimant was mildly limited in restriction of activities of daily
living, maintaining social functioning and maintaining concentration,
persistence or pace. He found no episodes of decompensation, each
of extended duration. Dr. Estock concluded that based on the
documented findings the claimant was not disabled (Exhibit l A).
An MRI of the lumbar spine taken at Open MRI of Auburn/Opelika
on January 12, 2011, was normal (Exhibit lF).
J. Melburn D. Holmes, M.D., saw the claimant on May 30, 2012.
The claimant reported having problems with her partner's children
and family. Her nerves were bad and she had never taken any
medication for nerves. Dr. Holmes prescribed Klonopin (Exhibit 2F).
Treatment records from Therapy Resources of East Alabama dated
August 9, 2012, to September 4, 2012, reveal that the claimant
underwent physical therapy two times a week for four weeks for right
upper trapezius pain and upper shoulder pain. She was treated with
manual therapy, therapeutic exercise, massage, ultrasound, electrical
stimulation, and heat packs. On discharge, it was noted that therapy
did not give a lot of benefit. Her pain was recurrent (Exhibit 3F).
Dolores Victoria, M.D., with Quality of Life treated the claimant from
November 3, 2009, to April 2, 2013, for weight gain, vaginitis,
fatigue, anemia, nail fungus in the right big toe, mixed
hyperlipidemia, upper respiratory infection, insomnia, benign
hypertension, sinusitis, anxiety, right shoulder pain, and pharyngitis.
On September 26, 2012, a MRI of the right shoulder revealed
moderate tendonitis of the infraspinatus without tear and mild edema
of the distal clavicle with slight hypertrophic change of the
acromioclavicular joint with a widely patent acromiohumeral interval
(Exhibits 4F, 5F, and 10F).
On April 2, 2013, Dr. Victoria wrote the following:
This letter is in reference to Ms Angel McLain. She has
been a patient at this facility since November 2009. She
is healthy, consults and receive [sic] treatments for minor
medical condition. Her annual medical [sic] medical
check up [sic] including blood test were unremarkable.
In July 2012 [sic] she had a severe injury to right
shoulder that is workrelated, [sic] working at the lunch
room at the local elementary school. She had several
office visits and was referred to an orthopedic specialist.
She was diagnosed with Chronic right shoulder rotator
cuff tendinitis and hypertrop of Acromio-Clavicular joint.
No surgical procedure advised and because of
persistence of pain and inability to use her right hand
she will not be able to continue her job. Please assist in
obtaining approval for disability for social security
benefits (Exhibit 13F).
Robert J. McAlindon, M.D., with East Alabama Orthopaedics and
Sports Medicine , treated the claimant from July 26, 2012, to January
10, 2013, for right rotator cuff tendonitis (Exhibits 6F and 8F).
The claimant underwent physical therapy through Therapy
Resources of East Alabama from November 8, 2012, to December
10, 2012. She was treated two times a week for four weeks with
heat packs, electrical stimulation, ultrasound, and therapeutic
exercise (Exhibit 7F).
The claimant was treated at Cheaha Mental Health Center on two
occasions, January 10, 2013, and January 29, 2013. Initially, she
reported, "I want to be happy and put past behind me. I want to see
if medication will help me so I can benefit from counseling." She
stated that she had been sexually, physically and emotionally
abused by her stepfather beginning at age 12. She was given
diagnoses including major depression, recurrent, moderate;
posttraumatic stress disorder; and given a global assessment of
functioning (GAF) score of 55. On the second visit, focus was on the
differences in personality styles that the claimant and her husband
had. On this visit, she was given a GAF of 56 (Exhibit 11F).
On February 13, 2013, the claimant underwent a Nuclear Medicine
Thyroid Uptake and Scan at East Alabama Medical Center, which
was normal. On May 29, 2013, Gwen Cooper, M.D., performed
attempted to place a N ovaSure device, but after two attempts with
not getting adequate seal, the procedure was abandoned and a
dilatation and curettage was done instead. On June 13, 2013, the
claimant underwent a transabdominal and transvaginal pelvic
ultrasound, which revealed fibroid uterus with fluid in the endometrial
cavity due to menorrhagia (Exhibits 12F, 14F, 15F, 16F, 17F, and
The claimant was treated at Anniston Dermatology on three
occasions from December 2, 2013, to April 8, 2014, for alopecia
At the hearing, the claimant testified that she was born on January
11, 1967, and she is 47-years old. She is right-handed. She is
married with three children ages 27, 24, and 19. She resides in a
house with her spouse, 27-year old daughter and 19-year old son.
Her spouse does not work. He is disabled. He has vertigo, migraines
and back problems. He was hurt at work and is now medically
retired. He was in the military and receives VA pay. They do not
receive food stamps. She has a driver's license and she drives twice
weekly to the store by her home. Her daughter drove her to the
hearing. She completed the 12th grade and went to college in 2010
for a few classes, but she did not obtain a degree. She was let go
from her job in November due to missing work. She worked in the
lunchroom at school. She served breakfast for 200 kids and lunch for
400 kids. Her arm was paralyzed and she missed work. She was
allowed to work 2 days a week. Dr. Bob sent her for the MRI. The
rotator cuff was messed up. She lifted 10-20 pound cans and carried
them 8-10 feet. She has shoulder pain like a toothache. Hydrocodone
was prescribed and she also takes Meloxicam for pain. Her
medication causes side effects making her sleepy and blurry eyed.
The pain has existed for at least two years. In an eight-hour day, she
does get up from her chair to the refrigerator. She drops off to sleep
due to the medication side effects. She stands to go to the bathroom,
go to the kitchen, and to get water. She is up four times a day. She
does not get up a lot due to the medication making her woozy. Where
she worked was hot in the kitchen and it was cold in the winter in the
cooking area. There was no heat except in the dining area. She did
not supervise any staff. Her work was stressful. The kids would be
rowdy and she would get aggravated. She could not deal with the
noise and she was moved to another work area. She has hormone
issues and uncontrolled hypertension. She takes steroid medication
for her head. She takes muscle relaxers because her muscles
tighten up. This medication makes her drowsy. She sits on a couch
most of the time. She cannot sit on a bench, because it hurts her
back. Her pain level is a “9-10.” At times, she aches all the time. She
takes her medication to help ease the pain. She does not use a cane.
She has foot swelling and she was placed on diuretics. She has to
elevate her legs. She cannot watch an entire movie because she
falls asleep. She does not do any crafts. She had to give it up. She
attends Mental Health and is prescribed Lorazepam. This mellows
her out. She has problems getting along with other people. She stays
in her room a lot. She can understand and carry out instructions, but
sometimes she forgets. Her concentration is not good. Her daughter
does the housework, but she can dry a few dishes. She can walk in
the house and in the store. Dust, fumes and gases bother her. She
has allergies. She has no problems with her breathing. She feels
sleepy with no energy. She takes medication for her thyroid. She is
tired a lot. Taking pain medication makes her tired. She takes naps
during the day. She takes sleep aids at night. She has to take her
medication that calms her. She cannot be out in public a lot. Bending
at the waist is a problem due to her sciatic nerve problems. She can
stoop and kneel. She does not have stairs to climb and she cannot
climb ladders. She does not crawl. The hand on her right side is
weak due to her shoulder issues. She does not push. She can twist
her wrist and she can open a jar if it is not too tight. She can open a
door and button her clothes. She can bathe and dress herself. She
does not go out alone, going out causes her emotional problems. She
drives twice weekly to the grocery store. Probably ten minutes is the
longest she has driven in the past year. She does not take trips. She
has not gotten lost when driving. It bothers her to be a passenger in
a car. She does not cook. She will go with her daughter to help with
the grocery shopping. She can make her bed. She does not do
laundry or vacuuming. She can use a telephone. She does not visit
family often. She sees her mom maybe once a month and she
attends church once a month. She went to two football games for her
son's senior year for a short time, but she was too tired and had to
leave. She does not like to read. She watches HGTV all the time. She
does not keep up with current events. Her hair fell out a year ago and
the dermatologist started giving her shots. This was due to her
nerves and hormones. The symptoms kept her from working. She
had a hysterectomy in October 2013. She had two surgeries. The
thyroid medication and hormones have helped her hair to grow back
some. When she is on the medication, she is not alert.
After careful consideration of the evidence, the undersigned finds
that the claimant's medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant's statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.
The claimant's attorney asserted that the claimant was disabled due
to a combination of impairments, pain from shoulders and a mental
problem. The claimant testified that her arm was paralyzed and she
missed work; however, there is not any objective evidence showing
that her arm was paralyzed. She also testified that she attends Mental
Health, yet the last time she had only been to Mental Health on two
occasions and the last time she was seen there was on January 29,
2013. She testified that she drives twice weekly to the grocery store,
but then she said probably ten minutes is the longest she has driven
in the past year.
On January 22, 2013, the claimant was seen at Quality of Life for
cold symptoms and left shoulder pain. Reportedly, the pain in her
left shoulder was relieved with prescription pain medication and overthe-counter medication. On examination, she had normal range of
motion, muscle strength and stability in all extremities with no pain on
inspection (Exhibit 10F).
Treatment notes from Dr. McAlindon dated November 8, 2012, shows
that a MRI of the right shoulder rotator cuff tendonitis was negative.
Thought not yet at a 100%, records of November 29, 2012, show that
the claimant had right rotator cuff tendonitis and she had gone
through a range of motion rehab program and was feeling better. On
examination, she had full range of motion about the shoulder
passively. Actively, the rotator cuff muscle strength was still a bit weak
to supraspinatus tendon testing and external rotation. There was no
sign of impingement and no tenderness over the biceps tendon. On
January 10, 2013, Dr. McAlindon reported that the claimant was going
through a range of motion rehab program and she was doing better.
On examination, she had full passive and active range of motion about
the shoulder. The rotator cuff strength was much improved and
impingement signs were nearly absent (Exhibits 6F and 8F).
Physical therapy notes from Therapy Resources of East Alabama
dated November 29, 2012, show that the claimant reported, "I had
taken pills for my shoulder and it felt better" (Exhibit 7F).
I give little weight to Dr. Estocks opinion of the claimant suffering
from only limitations with mental functioning. Although Dr. Estock
was the Agency's reviewing physician, his opinion was based on the
evidence available at the time and additional evidence was received
into the record after he made his assessment. Thus, based on all of
the evidence of record, I find the claimant to suffer from limitations
than that that was assessed by Dr. Estock.
I also give little weight to Dr. Victoria who opined that because of
persistence of pain and inability to use her right hand the claimant
would not be able to continue her job. While she may not be able to
perform her past work, her ability to function has not been so severely
eroded as to preclude all work activity. Orthopedic records of January
2013 show no signs of impingement or tenderness over the biceps.
She was told to continue an exercise program and over the counter
medications. Furthermore, at the hearing, the claimant repeatedly
lifted her arms and hands to explain answers. I specifically note that
as she talked about her hair falling out, she repeatedly lifted her right
upper extremity above her shoulder to her head with no facial
grimacing or any other indication of pain or difficulty.
As for her menstrual difficulties, anemia and hypertension, Dr. Victoria did
not mention them in her statement regarding her opinion of the claimant
being disabled. In addition, there is no evidence of any ongoing treatment of
such, end organ damage [sic] or referral to a specialist since June 2013.
Although the claimant has received treatment for the allegedly disabling
impairments, that treatment has been essentially routine in nature. The
description of the symptoms and significant limitations, which the claimant has
provided throughout the record, has generally been inconsistent and
unpersuasive. Given the claimant's allegations of totally disabling symptoms,
one might expect to see some indication in the treatment records of
restrictions placed on the claimant by the treating doctor. Yet, a review of the
record in this case reveals no restrictions recommended by the treating
doctor or by any other practitioner. The claimant has no neurological deficits,
muscle atrophy, or significant weight loss, generally associated with
protracted pain, at a severe level.
In summary, based on a close review of the medical evidence of record, as
well as all pertinent testimony at the hearings, the undersigned finds that the
preponderance of the most credible and convincing evidence contained in
the record has not supported the claimant's allegations of totally
incapacitating symptoms. The claimant's statements regarding the severity,
frequency and duration of her impairments have been overstated.
Eligibility for DIB benefits requires that the claimant be disabled. 42 U.S.C.
§§ 423(a)(1)(E). A claimant is disabled if the claimant is unable “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 12 months.” 42
U.S.C. §§ 423(d)(1)(A). The impairment must be severe, making the claimant
unable to do the claimant’s previous work or any other substantial gainful activity
that exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§
404.1505-11. “Substantial gainful activity means work that … [i]nvolves doing
significant and productive physical or mental duties [that] [i]s done (or intended)
for pay or profit.” 20 C.F.R. § 404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential
evaluation in determining whether the claimant is disabled:
(1) whether the claimant is engaged in substantial gainful activity; (2) if
not, whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairment in the regulations; (4) if not, whether the claimant has the RFC
to perform her past relevant work; and (5) if not, whether, in light of the
claimant’s RFC, age, education and work experience, there are other jobs
the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips
v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden of proving the first four steps, and if the claimant does
so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999).
If the claimant appeals an unfavorable ALJ decision, the reviewing court
must determine whether the Commissioner’s decision to deny benefits was
“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) (citations
omitted); see 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Winschel, 631 F.3d at 1178 (citations omitted). “In
determining whether substantial evidence exists, [the reviewing court] must view
the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The reviewing court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].”
Id. When a decision is supported by substantial evidence, the reviewing court
must affirm “[e]ven if [the court] find[s] that the evidence preponderates against
the Secretary’s decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
As set forth above, McClain has asserted five grounds in support of her
argument that the Commissioner’s decision to deny her benefits is in error. The
Court will address McClain’s contentions in the order presented.
A. ALJ Erred by Failing to Give Proper Weight to Dr. Victoria’s Opinion
McClain asserts that the ALJ erred in according only little weight to the
opinion of Dr. Victoria, one of her treating physicians. The Commissioner asserts
that the ALJ provided valid reasons for the weight accorded to Dr. Victoria’s
opinion, that her finding is supported by substantial evidence, and that the ALJ’s
evaluation of her opinion is entitled to deference.
The relevant social security regulations provide that medical opinions are
weighed by considering the following factors: 1) whether the source of the
opinion examined the claimant; 2) whether the source treated the claimant and, if
so, a) the length of the treatment relationship and the frequency of examination
and b) the nature and extent of the treatment relationship; 3) the supportability of
the opinion with relevant evidence and by explanations from the source; 4) the
consistency of the opinion with the record as a whole; 5) whether the opinion was
offered by a specialist about a medical issue related to his or her area of
specialty; and 6) any other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(1)-(6); see also Nichols v. Comm’r, Soc. Sec.
Admin., 679 F. App’x 792, 797 (11th Cir. 2017) (citing 20 C.F.R. §§ 404.1527(c),
416.927(c)) (stating that “[i]n determining how much weight to give a medical
opinion, the ALJ considers such factors as the examining or treating relationship,
whether the opinion is well-supported, whether the opinion is consistent with the
record, and the doctor’s specialization”).
In the instant case, the ALJ provided an extensive review of the medical
evidence in her Decision. Based on this extensive review of the records and
testimony, the ALJ accorded “little weight” to Dr. Victoria’s opinion that “because
of persistence of pain and inability to use her right hand [McClain] will not be able
to continue her job.” (Tr. 61). For several reasons, the Court finds that the ALJ’s
assessment of this statement by Dr. Victoria was supported by substantial
First, the Court notes that, because the finding of whether a claimant is
disabled from doing gainful work is an administrative finding that is reserved to
the Commissioner, a doctor’s opinion on that issue is not entitled to controlling
weight or given special significance. See Lowery v. Berryhill, Civ. A. No. 4:16-cv00913-AKK, 2017 WL 1491274, at *3 (N.D. Ala. Apr. 26, 2017) (citing Pate v.
Comm’r, Soc. Sec. Admin., 678 F. App’x 833, 834 (11th Cir. 2017) (“the
determination of whether an individual is disabled is reserved to the
Commissioner, and no special significance will be given to an opinion on issues
reserved to the Commissioner.”)). In addition, a physician’s opinion as to a
claimant’s ability to work is not entitled to recognition from an ALJ if the opinion is
not supported by or consistent with the totality of the evidence. Id. The ALJ
found, in this case, that Dr. Victoria’s opinion was not consistent with the totality
of the evidence. (Tr. 61). For example, as noted by the ALJ, although McClain
“may not be able to perform her past work, her ability to function has not been
so severely eroded as to preclude all work activity.” The ALJ noted: “ Orthopedic
records of January 2013 show no signs of impingement or tenderness over the
biceps. She was told to continue an exercise program and over the counter
medications. Furthermore, at the hearing, the claimant repeatedly lifted her arms
and hands to explain answers. I specifically note that as she talked about her
hair falling out, she repeatedly lifted her right upper extremity above her shoulder
to her head with no facial grimacing or any other indication of pain or difficulty.”
(Id.). She further noted that McClain’s treatment had been “essentially routine in
nature” and that “no restrictions [had been] recommended by the treating doctor
or by any other practitioner.” Finally, the ALJ noted that McClain “has no
neurological deficits, muscle atrophy, or significant weight loss, generally
associated with protracted pain, at a severe level.”
“In assessing whether a claimant is disabled, an ALJ must consider the
medical opinions in a case record together with the rest of the relevant evidence
received.” Chambers v. Comm’r of Soc. Sec., 662 F. App’x 869, 870 (11th Cir.
2016) (citing 20 C.F.R. § 404.1527(b)) (emphasis added). Although the opinions
of treating physicians are generally entitled to substantial or considerable weight,
the ALJ does not have to give a treating physician’s opinion considerable weight
if good cause is shown to the contrary. See Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2004). The Eleventh Circuit “has concluded ‘good cause’ exists
when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Id. at 1240-41.
In this case, substantial evidence supports the ALJ’s finding that Dr. Victoria’s
opinion concerning McLain’s ability to work was not in line with her own objective
findings or the record as a whole.
B. ALJ Failed to Assess the Intensity and Persistence of McClain’s
Symptoms Pursuant to SSR 16-3p
McLain argues that her claim should be remanded because the ALJ failed
to assess the intensity and persistence of her symptoms pursuant to SSR 16-3p,
which became effective on March 28, 2016, almost two years after the ALJ
decided her case. (Doc. 16 at p.15). In support of this contention, McLain argues
that the rule modification is retroactive. (Id). This claim fails because it is contrary
to Eleventh Circuit law. In Green v. Social Security Administration,
Commissioner, No. 16-16272, 2017 WL 3187048, *4 (11th Cir. July 27, 2017), the
Court held that SSR 16-3p does not apply retroactively.
C. ALJ Failed to State Adequate Reasons for Her Credibility Finding
In her decision, the ALJ found that McClain’s statements “concerning the
intensity, persistence and limiting effects of [her] symptoms are not entirely
credible for the reasons explained in this decision.” (Tr. 60). For example, the
ALJ noted that McClain “testified that her arm was paralyzed and she missed
work; however, there is not any objective evidence showing that her arm was
paralyzed.” (Id.). She also noted that McClain “testified [at the May hearing] that
she attends Mental Health, yet … she had only been to Mental Health on two
occasions and the last time she was seen there was on January 29, 2013.” (Id.).
The ALJ also discussed how the objective medical findings and statements made
to her doctor’s did not support the severe limitations in activities testified to by
McClain. The ALJ pointed out the following:
On January 22, 2013, the claimant was seen at Quality of Life
for cold symptoms and left shoulder pain. Reportedly, the pain
in her left shoulder was relieved with prescription pain
medication and over-the-counter medication. On examination,
she had normal range of motion, muscle strength and stability
in all extremities with no pain on inspection (Exhibit 10F).
Treatment notes from Dr. McAlindon dated November 8, 2012,
shows that a MRI of the right shoulder rotator cuff tendonitis was
negative. Thought not yet at a 100%, records of November 29,
2012, show that the claimant had right rotator cuff tendonitis and
she had gone through a range of motion rehab program and was
feeling better. On examination, she had full range of motion
about the shoulder passively. Actively, the rotator cuff muscle
strength was still a bit weak to supraspinatus tendon testing and
external rotation. There was no sign of impingement and no
tenderness over the biceps tendon. On January 10, 2013, Dr.
McAlindon reported that the claimant was going through a range
of motion rehab program and she was doing better. On
examination, she had full passive and active range of motion
about the shoulder. The rotator cuff strength was much
improved and impingement signs were nearly absent (Exhibits
6F and 8F).
Physical therapy notes from Therapy Resources of East
Alabama dated November 29, 2012, show that the claimant
reported, "I had taken pills for my shoulder and it felt better"
Although the claimant has received treatment for the allegedly disabling
impairments, that treatment has been essentially routine in nature. The
description of the symptoms and significant limitations, which the
claimant has provided throughout the record, has generally been
inconsistent and unpersuasive. Given the claimant's allegations of
totally disabling symptoms, one might expect to see some indication in
the treatment records of restrictions placed on the claimant by the
treating doctor. Yet, a review of the record in this case reveals no
restrictions recommended by the treating doctor or by any other
practitioner. The claimant has no neurological deficits, muscle atrophy,
or significant weight loss, generally associated with protracted pain, at a
(Tr. 60, 61).
After evaluating the evidence and testimony, the ALJ concluded:
In summary, based on a close review of the medical evidence of
record, as well as all pertinent testimony at the hearings, the
undersigned finds that the preponderance of the most credible and
convincing evidence contained in the record has not supported the
claimant's allegations of totally incapacitating symptoms. The
claimant's statements regarding the severity, frequency and duration of
her impairments have been overstated.
McClain contends that the ALJ failed to state adequate reasons for finding
her not entirely credible. However, she does not support her contention with any
specific examples of how the ALJ erred. As set forth above, the ALJ provided
several reasons for discounting McClain’s allegations concerning the extent of
her disability. Her argument that the ALJ incorrectly assessed her credibility fails
because she ignores the reasons the ALJ provided for discounting her
allegations of disability and the evidence supporting those reasons. The ALJ
concluded that McClain’s complaints of disabling symptoms were not entirely
credible because they were inconsistent with 1) other evidence of record,
including the medical records of Dr. McAlindon and Dr. Victoria; 2) her lack of
treatment and long gaps in treatment for allegedly disabling mental impairments;
3) her conservative course of treatment; 4) her normal or generally normal
physical and mental examination findings; 5) the lack of imaging studies
supporting her complaints; and 6) her statements to doctors that medication
relieved her symptoms. (Tr. 55-61).
“A clearly articulated credibility finding with substantial supporting
evidence in the record will not be disturbed by a reviewing court.” Davis v.
Astrue, 346 F. App’x 439, 440 (11th Cir. 2009) (quoting Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995)). This is so even if some of the reasons for
questioning the claimant’s credibility stated by the ALJ are suspect. See id. at
441 (reversing the District Court’s reversal of the ALJ’s decision denying benefits
because it found that the inconsistencies between the objective medical findings
and the claimant’s subjective complaints of pain, which were pointed out in the
ALJ’s decision, constituted substantial evidence supporting the ALJ’s
determination). The Court finds that the conclusion reached by the ALJ that
McClain was not entirely credible was supported by substantial evidence and
was not in error.
D. ALJ’s Finding that McClain Can Perform Light Work
McClain argues that the ALJ’s finding in her residual functional capacity
(RFC) evaluation that McClain can perform light work is not supported by
substantial evidence. A claimant’s RFC is “an assessment of an individual’s
ability to do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis.” SSR 96-8p, 1996 WL 374184, at *1. It
is an “administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” SSR 96-8p, 1996 WL
374184, at *2. It represents the most, not the least, a claimant can still do
despite his or her limitations. 20 C.F.R. § 404.1545; SSR 96-8p, 1996 WL
374184, at *2 (emphasis added). The RFC assessment is based on “all of the
relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). In assessing a
claimant’s RFC, the ALJ must consider only limitations and restrictions
attributable to medically determinable impairments, i.e., those which are
demonstrable by objective medical evidence. SSR 96-8p, 1996 WL 374184, at
*2. Similarly, if the evidence does not show a limitation or restriction of a specific
functional capacity, the ALJ should consider the claimant to have no limitation
with respect to that functional capacity. Id. at *3. The ALJ is exclusively
responsible for determining an individual’s RFC. 20 C.F.R. § 404.1546(c).
In this case, the ALJ discussed the medical evidence, including the weight
accorded to the medical opinion evidence and the grounds therefor. The ALJ
also described the information provided by McClain in her Function Report and at
the hearing concerning her limitations and activities, and she explained her
reasons for finding that McClain was not entirely credible. Even with the finding
that McClain was not entirely credible, the ALJ included limitations in the RFC
which clearly went beyond those limitations supported only by the medical
evidence. McClain has not pointed to any specific finding in the RFC that was not
supported by evidence. The Court finds that the assessment made by the ALJ
was supported by substantial evidence.
E. Appeals Council Erroneously Failed to Review New Medical Evidence
McClain contends that the Appeals Council erroneously failed to review
new medical evidence that was submitted by McClain after the date of the ALJ’s
decision, which was August 25, 2014. McClain appealed the ALJ’s decision to
the Appeals Council on October 27, 2014. (Tr. 22). In support of her request to
the Appeals Council, McClain submitted medical records from Quality of Life, Dr.
Victoria, and Gadsden Psychological Services that were dated and reflected
examinations of McLain after the date of the ALJ’s decision. (Tr. 2). On March
28, 2016, the Appeals Council denied her request for review of the ALJ’s
decision. (Tr. 1-4). In its decision, the Appeals Council stated that it had looked at
these medical records, but because the ALJ had decided her case through
August 25, 2014 and this information was about a later time, it did not affect the
decision about whether she was disabled beginning on or before August 25,
2014. (Tr. 2).
The Eleventh Circuit has made clear that “[w]ith few exceptions, the
claimant is allowed to present new evidence at each stage of th[e] administrative
[review] process[,]” including before the Appeals Council. Ingram v. Comm’r of
Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007). While the Appeals Council has
the discretion not to review the ALJ’s denial of benefits, Flowers v. Commissioner
of Social Sec., 441 F. App’x 735, 745 (11th Cir. 2011), it “must consider new,
material, and chronologically relevant evidence” submitted by the claimant.
Beavers v. Soc. Sec. Admin., Comm’r, 601 F. App’x 818, 821 (11th Cir. 2015);
Ingram, 496 F.3d at 1261; see also 20 C.F.R. § 404.970(b) (“If new and material
evidence is submitted, the Appeals Council shall consider the additional evidence
only where it relates to the period on or before the date of the
administrative law judge hearing decision.”) (emphasis added). Evidence is
new only if it is not cumulative of other evidence in the record. Beavers, 601 F.
App’x at 821. “The evidence is material if ‘there is a reasonable possibility that
the new evidence would change the administrative outcome.’” Id. (quoting Hyde
v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987)); see Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 782 (11th Cir. 2014)). “It is chronologically relevant if ‘it
relates to the period on or before the date of the [ALJ] hearing decision.’” Ring v.
Berryhill, 4:16-CV-42-VEH, 2017 WL 992174, *4 (N.D. Ala. Mar. 15, 2017)
(quoting 20 C.F.R. § 404.970(b)).
Here, the Appeals Council incorporated the new evidence into the record
and denied McClain’s request for review (Tr. 1-7). Under the heading “What We
Considered,” the Appeals Council stated that “we considered the reasons you
disagree with the [ALJ’s] decision and the additional evidence listed on the
enclosed Order of Appeals Council. … We found that this information does not
provide a basis for changing the Administrative Law Judge’s decision.” (Tr. 2).
The Appeals Council went on to state that it had “looked at” the new medical
records and determined “that [the new evidence] does not affect the decision
about whether [McClain was] disabled beginning on or before August 25, 2014”
because “[t]his new information is about a later time. (Id.). The Appeals Council
then advised McLain how to make a new claim with the new information. (Id.).
McLain argues that the Appeals Council in this case erred because its
statements do not demonstrate that it considered whether the submissions were
chronologically relevant. (Doc. 25 at p. 10).
This Court cannot agree with McLain’s argument because the Appeals
Council clearly stated that it had looked at the new medical records submitted
and concluded that the “new information is about a later time[;] [t]herefore, it does
not affect the decision about whether you were disabled beginning on or before
August 25, 2014.” (Tr. 2). Similar language has been upheld by courts within the
Eleventh Circuit. See Beavers, 601 F. App’x at 821-22 (finding that the Appeals
Council’s statement that it had considered the claimant’s new evidence, but
found that the new evidence did not provided a basis for changing the ALJ’s
decision was sufficient); Zanders v. Berryhill, CA 16-0542-MU, 2017 WL
3710790, *13-14 (S.D. Ala. Aug. 28, 2017) (affirming case in which the Appeal’s
Council used identical language to that used in the instant case); Putman v.
Colvin, 2016 WL 5253215, *10-11 (N.D. Ala. Sept. 22, 2016) (affirming a case in
which the Appeals Council, in addition to stating “this information does not
provide a basis for changing the [ALJ’s] decision[,]” also “went on to explain that
the ALJ ‘decided your case through March 31, 2013, the date you were last
insured for disability benefits. This new information is about a later time.
Therefore, it does not affect the decision about whether you were disabled at the
time you were last insured for disability benefits.’”). Likewise, in Mitchell, the
Appeals Council denied review, stating simply that it had considered the
additional evidence but “the information did not provide a basis for changing the
ALJ’s decision.” Mitchell, 771 F.3d at 782. The Eleventh Circuit explained that the
Appeals Council’s statement was sufficient because the record did not provide a
“basis for doubting the Appeals Council’s statement that it considered Mitchell’s
additional evidence.” Id. at 783. The Mitchell panel noted that the Appeals
Council “was not required to provide a detailed rationale for denying review.” 771
F.3d at 784, 784-85 (noting that “our conclusion that the Appeals Council is not
required to explain its rationale for denying a request for review is consistent with
the holdings of other circuits that have considered this issue”).
“The issue of whether a claimant’s new evidence is new, material, and
chronologically relevant is reviewed de novo.” Green, 2017 WL 3187048, at *2
(citing Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir.
2015). This Court, having reviewed the records from the few occasions in early
2013 that McLain was treated for depression, which were within the relevant time
period, and the more voluminous records of her mental health complaints and
treatment in late 2014 and beyond, which was after the relevant time period,
agrees with the Appeals Council’s implicit finding that the newly submitted
records were not material and chronologically relevant. The new records simply
do not provide any new, material, or relevant evidence demonstrating that
McLain suffered from a disability as defined in the Act during the relevant time
As noted above, it is not this Court’s place to reweigh the evidence or
substitute its judgment for that of the Commissioner. It is well-established that
this Court is limited to a determination of whether the ALJ’s decision is supported
by substantial evidence and based on proper legal standards. The Court finds
that the ALJ’s Decision that McClain is not entitled to benefits is supported by
substantial evidence and based on proper legal standards. Accordingly, it is
ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 28th day of September, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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