Daniels v. Colvin

Filing 21

MEMORANDUM OPINION and ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 12/5/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
KORNELIUS DANIELS,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 16-0245-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling
denying a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 14).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order judgment in accordance with 28
U.S.C. § 636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b)
(see Doc. 20).
19).

Oral argument was waived in this action (Doc.

After considering the administrative record and the

memoranda of the parties, it is ORDERED that the decision of the
Commissioner be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial

evidence requires “that the decision under review be supported
by evidence sufficient to justify a reasoning mind in accepting
it; it is more than a scintilla, but less than a preponderance.”
Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting
Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time of the administrative hearing, Daniels was
twenty-eight years old, had completed two years of vocational
education at a community college (Tr. 78), and had previous work
experience as a janitor, retail salesclerk, and cashier/stocker/
storekeeper (Tr. 78, 89).

Plaintiff alleges disability due to

Multiple Sclerosis (hereinafter MS), neuropathy, hypertension,
obesity, and cognitive loss (Doc. 13).
The Plaintiff applied for SSI on March 4, 2013, asserting a
disability onset date of the same date (see Tr. 19; 128-33).

An

Administrative Law Judge (ALJ) denied benefits, determining that
although Daniels could not return to his past relevant work,
there were specific sedentary jobs that he could perform (Tr.
19-32).

Plaintiff requested review of the hearing decision (Tr.

7-8), but the Appeals Council denied it (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Daniels

alleges the single claim that the ALJ erred in rejecting the

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opinion of the examining Neuropsychologist (Doc. 14).
has responded to—and denies—this claim (Doc. 15).

Defendant

The Court’s

summary of the relevant evidence follows.
On November 30, 2012, Daniels was seen by a CRNP at Health
Services, Inc. for lower back pain with radiation into both
legs, causing numbness, aggravated by movement and cold for two
weeks (Tr. 191-95).

Plaintiff’s Body Mass Index (hereinafter

BMI) was 38, his blood pressure 140/100, and he rated his pain
as zero on a ten-point scale.

Daniels had full range of motion

(hereinafter ROM) in his lower back and both legs without
limitation.

On January 7, 2013, Plaintiff complained of a

sudden onset of numbness and tingling in both hips down to his
feet; pain was rated at four (Tr. 196-200).

Normal ROM, muscle

strength, and stability in all extremities with no pain were
noted; Daniels was oriented in four spheres and exhibited
appropriate mood and affect.

He was ordered to exercise four

times weekly and stay on a low-salt diet; amitriptyline1 was
prescribed.

On March 14, Plaintiff had a normal examination

though he was characterized as morbidly obese with a BMI of 40;
Tramadol2 was prescribed (Tr. 207-11).
On April 14, 2013, Dr. Stephen J. Robidoux examined Daniels

1Error! Main Document Only.Amitriptyline, marketed as Elavil, is

used to treat the symptoms of depression. Physician's Desk Reference
3163 (52nd ed. 1998).
2Tramadol “is indicated for the management of moderate to

moderately severe chronic pain in adults who require around-the-clock
treatment of their pain for an extended period of time.” Error! Main
Document Only.Physician's Desk Reference 2520 (66th ed. 2012).

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who complained of an inability to feel his feet; he reported the
ability to “cook, clean, do laundry and shop” as well as drive a
car (Tr. 221; see generally Tr. 220-23).

The Doctor noted that

Plaintiff was oriented in all spheres, could squat and raise,
and that he had normal heel and toe walking and tandem gait.
ROM measurements were all normal; an MRI of his back was normal.
Dr. Robidoux noted there were no limitations in Daniels’s
ability to sit, stand, bend, squat, lift, walk, run, carry,
kneel, crawl, handle objects, use hand and foot controls, talk,
listen, and travel but indicated that he would benefit from a
structured exercise and diet program.
On June 3, 2013, Dr. Khurram Bashir, at the UAB MS Clinic,
examined Daniels, noting that he had examined him more than six
years earlier for MS-related problems though Plaintiff never
started disease-modifying therapy (Tr. 230-32; see also Tr. 23544).

Plaintiff rated his pain at seven.

The Doctor noted that

a recent brain MRI, when compared to one from 2007, showed
worsening demyelinating disease, with new right temporal, and
several left parietal, lobe deep white matter lesions,
suggesting MS.

Bashir found full motor strength throughout and

normal independent gait and coordination.

The Doctor’s

impression was that Daniels had relapsing remitting MS and acute
MS relapse, presenting as partial cervical transverse myelitis,
mild to moderate in severity, affecting his gait.

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Appropriate

medications were prescribed and a regular exercise regimen was
encouraged.
On June 18, 2013, Daniels went to Whatley Health Services
to find a Preferred Care Provider (hereinafter PCP); Plaintiff
stated that his medications had helped with the numbness and
tingling from his waist down though he was still experiencing
pain at a level three (Tr. 246-48).

Daniels had normal ROM,

muscle strength and stability in all extremities with no pain on
inspection; he was oriented in four spheres and demonstrated
appropriate mood and affect.

On July 12, Dr. Gary M. Walton

examined Plaintiff for complaints including fatigue, pain,
weight gain, and weight loss; no specific pain claims were made
(Tr. 249-52).

On October 7, Daniels complained of joint pain,

at a level nine beginning two weeks earlier, causing decreased
mobility, difficulty with sleep, limping, spasms, and swelling;
Plaintiff rated his pain at two on that day (Tr. 253-57).
Following a normal exam, Dr. Walton encouraged Plaintiff to
exercise at least three times per week as well as dietary
modification; the diagnosis was malignant hypertension and MS.
On November 8, Daniels voiced no complaints, but noted some
weight loss; the exam was unremarkable (Tr. 258-60).

On

February 12, 2014, Plaintiff complained of insomnia, difficulty
concentrating, increased fatigue, irritability, personality
changes, and finger numbness (Tr. 266-69).

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Dr. Walton

encouraged exercise and weight reduction.
On October 7, 2014, John R. Goff, Neuropsychologist,
examined Daniels; in his report, he first reviewed the other
evidence of record provided to him (Tr. 276-84).

Goff noted

that Plaintiff’s discourse was logical and coherent, though, at
times, it was consistent with patients who have MS; Daniels
reported a good appetite, but difficulty sleeping.

Affect was

normal, though Plaintiff reported being depressed; he was
anxious and apprehensive.

Daniels took the Wechsler Adult

Intelligence Scale (WAIS-IV) and scored a full scale IQ of 96,
placing him within the average range of psychometric
intelligence; the processing score fell within the borderline
range and the working memory index was a low average score.

The

Neuropsychologist noted that Plaintiff slowed down when motor
movement was required and that he had difficulties with
immediate memory.

On the Reitan-Indiana Aphasia Screening Test

and clock-drawing tasks, Daniels produced adequate drawings,
readable handwriting, and that he could read at the fourth-grade
level and perform simple mathematical calculations.

Goff stated

the following about Plaintiff’s Trail Making Test results:
The Trail Making Test is a simple test
of visual motor problem solving skill
sometimes helpful in the identification of
organic brain dysfunction. He obtained
scores within the impaired range on both
aspects of the test. It took him 52 seconds
to complete Trails A which merely requires

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the subject to connect sequenced numbered
circles. It took him 97 seconds to complete
Trails B which requires the alternation of
numbers and letters. The cutoff scores for
identification of identification of organic
brain dysfunction are 45 and 97 seconds
respectively and both those scores are,
therefore, above the threshold.
(Tr. 280).

On the Wechsler Memory Scale (WMS-III) and the

Central Nervous System Vital Signs protocol (CNS-VS), Daniels
was able to provide personal and current information and was
oriented in all spheres; he had low average scores—“lower than
we would expect on the basis of his intellectual level”—on
immediate memory, delayed memory, and total memory scales (Tr.
280).
recall.

Goff noted that the tests demonstrated poor verbal
Grip strength was weak bilaterally and only little more

than half of what was expected; right hand dexterity was
pathologically slow.

The Examiner indicated that the deficits

in verbal memory skills and strength and dexterity were “quite
likely related to his central nervous system disease process”
(Tr. 280).

The Personality Assessment Inventory (PAI) suggested

“an unusual degree of concern about physical functioning and
health matters and probable impairment arising from somatic
symptoms” relating to MS (Tr. 281); the Neuropsychologist noted
that Daniels’s concern was not unwarranted.

The Examiner found

no indications of malingering or dissimulation; test results
were thought to be valid.

Goff’s diagnosis was Adjustment

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Disorder with Depressed Mood and Somatic Concern Cognitive
Disorder (Loss) associated with Demyelinating Disease; his
concluding remarks were as follows:
During this examination he was able to
understand, follow and carry out simple
instruction and some complex instructions.
He just has a tendency to work very slowly I
think because of the combination of
depression associated with psychomotor
slowing and some coordination problems
associated with the MS. He also has
problems remembering complex verbal kinds of
instructions. He is preoccupied with his
health and has difficulty with the stresses
and pressures of the workplace. He says
that he cannot stand for very long.
(Tr. 282).

Goff also completed a Mental Medical Source Opinion

Form in which he indicated that Daniels had marked limitations
in his ability to understand and remember detailed or complex
instructions and respond to customary work pressures; he was
extremely limited in his ability to maintain attention,
concentration or pace for a period of at least two hours (Tr.
283-84).

Daniels was moderately limited in his ability to carry

out and remember simple instructions, carry out detailed or
complex instructions, and deal with changes in a routine work
setting.

Goff thought that Plaintiff had marked constriction of

interests, that these limitations had lasted for more than a
year, and that his pain was consistent with clinical findings.
This concludes the Court’s summary of the record evidence.

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In bringing this action, Daniels asserts that the ALJ erred
in rejecting the opinion of the examining Neuropsychologist Goff
(Doc. 14, pp. 5-7).

Plaintiff specifically claims that the ALJ

misinterpreted the results from the Trail Making Test.

Daniels

took 52 seconds to complete Trails A and 97 seconds to complete
Trails B (Tr. 280).

In his report, the Neuropsychologist stated

that “[t]he cutoff scores for identification of organic brain
dysfunction are 45 and 97 seconds respectively and both those
scores are, therefore, above the threshold” (Tr. 280).
The ALJ, in summarizing the evidence, stated that “even
though the claimant obtained scores within the impaired range on
both aspects of the Trail Making Test, his scores remained above
the threshold for identification of organic brain dysfunction”
(Tr. 22).

The ALJ went on to state “Dr. Goff’s own testing

produced results inconsistent with organic brain dysfunction”
(Tr. 23).
Respondent argues that even though his word choice was
“clumsy” (Doc. 15, p. 6 n.2), the ALJ was, nevertheless, correct
in his assessment.

The Court reads the Government’s brief to

argue that the Trail Making Test did not indicate organic brain
dysfunction.
The Court agrees with Respondent that the ALJ’s conclusion
on this issue was not written as well as it might have been.
The Court disagrees with the ALJ’s conclusion, however.

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The Court reads Goff’s statement regarding the Trail Making
Test results to indicate that Daniels suffers some degree of
organic brain dysfunction.

The Neuropsychologist did not,

however, discuss the degree of dysfunction suffered as measured
by that particular test.

He did, however, administer a battery

of tests, report the test results, provide a diagnosis based on
those results, and then indicate, in a Mental Medical Source
Opinion Form, the degree of limitation he thought Plaintiff
would experience in performing work-related activities.
The ALJ rejected those limitations:
Given the claimant’s relatively recent
diagnosis with MS and the lifestyle changes
associated (and anticipated) with such a
diagnosis, the impression of an adjustment
disorder with depression is reasonable;
however, the evidence of record fails to
support Dr. Goff’s opinions regarding the
severity of limitation associated with that
impairment. The evidence of record also
fails to establish a medically determinable
cognitive (loss) disorder. Treatment
records reflect only rare, isolated
complaints of depression and memory
deficits. . . . In addition, findings by
other examiners—including the claimant’s MS
specialist—are inconsistent with the
severity of impairment offered by Dr. Goff.
(Tr. 23).3

More specifically, the ALJ rejected Goff’s findings,

as set out as follows:

3The omitted section concerns the ALJ’s finding that “Dr. Goff’s

own testing produced results inconsistent with organic brain
dysfunction” (Tr. 23). The Court rejects this conclusion as it
pertains to the Trail Making Test, but, as will be discussed, not as
to the balance of the evidence provided by Dr. Goff.

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As for the opinion evidence, little
weight is accorded Dr. Goff’s opinions as
reflected in his report of evaluation and
accompanying mental medical source (MSS)
opinion form given their inconsistency
internally and with the other evidence of
record (Exhibit 9F). Dr. Goff’s mental
status examination (MSE) and test results
provide no basis for his opinion that the
claimant has a marked degree of limitation
in his ability to respond to customary work
pressures. The claimant stopped working
long before he was diagnosed with MS and
before the condition became symptomatic.
Contrary to this report to Dr. Goff, he also
admits that he stopped working for reasons
unrelated to his health. Dr. Goff’s opinion
that the claimant has an extreme degree of
limitation in his ability to maintain
attention, concentration, or pace for
periods of at least two hours is equally
unsupported. Although the claimant
reportedly endorsed some distractibility and
difficulty concentrating “in regard to his
thought processes” when completed Dr. Goff’s
personality assessment, he demonstrated
adequate concentration skills during the MSE
with no evidence of waning concentration or
persistence over the course of the lengthy
neuropsychological evaluation. The
claimant’s high borderline (79) WAIS IV
processing speed index and borderline (75)
CNS-VS processing speed fall well short of
an “extreme” limitation as does Dr. Goff’s
characterization of the claimant in the body
of his report as only “a bit” slowed down
during motor movements. In the MSS he
completed, Dr. Goff opines that the claimant
has moderate limitations in his ability to
remember and carry out even simple
instructions. He also opines that the
claimant has marked limitations in his
ability to understand and remember detailed
or complex instructions but only moderate
limitations in his ability to carry out such
instructions. In his report, Dr. Goff noted
that the claimant had problems remembering

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“complex verbal kinds of instructions” but
provided no specific supporting evidence and
cited no limitations at all in terms of his
ability to remember simple instructions. He
also noted that the claimant was able to
understand, follow, and carry out simple
instructions as well as “some” complex
instructions.
(Tr. 30).

The Court finds substantial support for these

conclusions, while noting that Daniels has not challenged them
(see Doc. 14, pp. 5-7).

The Court further notes that the only

support for Goff’s limitations comes through Plaintiff’s own
testimony and statements made to his physicians.

However, the

ALJ rejected Daniels as a credible witness, a finding
unchallenged in this action (see Tr. 26, 29-30).
In summary, the Court finds that Daniels is correct in
arguing that the ALJ misinterpreted Goff’s characterization of
the Trail Making Test.

However, the Court finds that the error

is harmless in that his overall assessment of Goff’s conclusions
is supported by substantial evidence.

Though the Trail Making

Test appears to demonstrate organic brain dysfunction, the
balance of the evidence from that examination does not
demonstrate the limitations suggested by the Neuropsychologist.
The undersigned finds the ALJ’s conclusions supported by the
substantial evidence of record.
Plaintiff has raised a single claim in bringing this
action.

That claim is without merit.

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Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 5th day of December, 2016.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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