Ward v. Colvin
Filing
30
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 9/6/2017. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BERNAL WARD,
Plaintiff,
vs.
:
:
:
CA 16-0616-MU
NANCY A. BERRYHILL,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her claims for a period of disability, disability insurance benefits, and
supplemental security income. 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. (Docs. 17 & 18 (“In accordance with 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.”)). Upon consideration of the
administrative record, Plaintiff’s brief, and the Commissioner’s brief,1 it is determined
that the Commissioner’s decision denying benefits should be affirmed.2
1
2
The parties waived oral argument. (Compare Doc. 25 with Doc. 26).
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 18 (“An appeal from a
(Continued)
I. Procedural Background
Plaintiff filed an application for a period of disability and disability insurance
benefits on October 31, 2013, and that same day filed an application for supplemental
security income. Both applications alleged disability beginning on June 5, 2013. (See Tr.
131-43). Ward’s claims were initially denied on January 24, 2014 (Tr. 79-85) and,
following Plaintiff’s written request for a hearing before an Administrative Law Judge
(“ALJ”) (see Tr. 86), a hearing was conducted before an ALJ on February 25, 2015 (Tr.
39-62). On July 13, 2015, the ALJ issued a decision finding that the claimant was not
disabled and, therefore, not entitled to a period of disability and disability insurance
benefits. (Tr. 23-32). More specifically, the ALJ concluded that Ward retains the residual
functional capacity to perform a limited range of light work and, therefore, is capable of
performing those jobs identified by the vocational expert (“VE”) during the administrative
hearing. (See id. at 27-32; compare id. with Tr. 56-60 (vocational expert’s hearing
testimony that based on the hypothetical posed, consistent with the ALJ’s ultimate RFC
determination, the claimant would be capable of performing those light jobs identified)).
On August 25, 2015, the Plaintiff appealed the ALJ’s unfavorable decision to the
Appeals Council (Tr. 16-19) and, the Appeals Council denied Ward’s request for review
on October 27, 2016 (Tr. 1-3). In the decision denying review, the Appeals Council
clearly indicated that it was denying Plaintiff’s claims for both disability insurance
judgment entered by a magistrate judge shall be taken directly to the United States court of
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
district court.”)).
2
benefits and supplemental security income (see id. at 3). Thus, the hearing decision
became the final decision of the Commissioner of Social Security.
Plaintiff alleges disability due to chronic congestive heart failure, cardiomyopathy,
hypertension, cervical disc protrusion, lumbago, osteoarthritis, fibromyalgia, headaches,
obesity, depression, and anxiety. The ALJ made the following relevant findings:
1.
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2017.
2.
The claimant has not engaged in substantial gainful activity
since June 5, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: chronic
systolic congestive heart failure, cardiomyopathy, hypertension,
cervical disc protrusion, lumbago, osteoarthritis, fibromyalgia,
headache, obesity, depression and anxiety (20 CFR 404.1520(c)).
.
.
.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525 and 404.1526).
.
.
.
The severity of the claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the criteria of listings 12.04
and 12.06. In making this finding, the undersigned has considered
whether the “paragraph B” criteria are satisfied. To satisfy the “paragraph
B” criteria, the mental impairments must result in at least two of the
following: marked restriction of activities of daily living; marked difficulties
in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every four months, each lasting for at least
2 weeks.
In activities of daily living, the claimant has mild restriction. The claimant
provides care and supervision for a minor child. She cares for her
3
personal needs without assistance. The claimant prepares frozen dinners
and sandwiches. She does laundry, irons, and [performs] household
chores over the course of 2-3 days. The claimant drives, and shops for
food, clothing, and household necessities once per month.
In social functioning, the claimant has mild difficulties. The claimant
spends time with her family and attends church services weekly.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant can maintain a household budget by
paying bills and handling a savings account, checkbook, or money orders.
She reported difficulty completing tasks, but states she could follow written
and spoken instructions “good”. Notes from Cahaba Mental Health Center
in 2014 showed treatment for depression and anxiety. She denied side
effects due to her medications. The claimant indicated she was taking 16
hours of classes, and had stable mood.
As for the episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration. The
claimant has not required inpatient care due to a psychiatric impairment.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “marked” limitation and “repeated” episodes of
decompensation, each of extended duration, the “paragraph B” criteria are
not satisfied.
.
.
.
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of
the sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments. Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
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 the claimant can occasionally operate hand and foot controls
with the left upper and lower extremities, and occasionally reach
overhead with the left upper extremity. She can occasionally climb
ramps and stairs, but never climb ladders and scaffolds. The
4
claimant can occasionally stoop, kneel, crouch and crawl. She
should never work at unprotected heights or with moving
mechanical parts. She is limited to simple tasks, and can tolerate
few gradually introduced changes in a routine work setting. The
claimant can tolerate ordinary work pressures, but should avoid
excessive workloads, rapid changes, and multiple demands.
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 063p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—i.e.,
an impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques—that could reasonably be expected to
produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity,
persistence, and limiting effects of the claimant’s symptoms to determine
the extent to which they limit the claimant’s functioning. For this purpose,
whenever statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire case
record.
The claimant testified that she stopped working in June 2013, and
withdrew from school in September 2014 due to fibromyalgia. She
reported pain in the neck, back and arms, and rated the pain an 8 on a
scale of 0-10. The claimant described low back pain that radiates down
the left leg. She can walk for 100 feet, stand for 15-20 minutes, and sit for
20-30 minutes. The claimant lies down for 3-4 hours each day. Her
medications cause drowsiness. The claimant reported panic attacks that
last three minutes, and depressive symptoms. She described chest pain
that radiates down the left arm, and numbness in her legs. The claimant
does household chores and shops for groceries with her children. She
prepares sandwiches or microwave meals.
5
The longitudinal medical evidence of record does not fully support the
claimant’s allegation of disability. Magnetic resonance imaging (MRI) of
the lumbar spine in September 2012 did not show degenerative disc
disease or neural impingement. Nerve conduction studies (NCS) of the
bilateral lower extremities were normal. Physical exam in March 2013 by
Dr. Ronnie Chu showed normal gait and station. The claimant moved all
extremities well, and had full range of motion. She was treated with
Flexeril and Toradol for pain. The claimant was diagnosed with lumbago,
and referred to physical therapy. In July 2013, Dr. Chu indicated the
claimant’s back pain was not improving with physical therapy. MRI of the
cervical, thoracic, and lumbar spine in July 2013 was normal.
Records from Dr. Hector Caballero in February 2013 indicated that the
claimant’s headaches were partially controlled with Cymbalta. She also
reported back pain that radiated into the lower extremities, but there was
no objective evidence of lumbosacral stenosis or radiculopathy. Physical
exam showed decreased range of motion of the lumbar spine.
With regard to her cardiac impairments, the claimant was admitted to Hale
County Hospital in June 2012 with left sided upper extremity numbness.
Notes indicated borderline cardiomyopathy. There were no signs of an
acute myocardial infarction. The claimant was diagnosed with
hypertension, chest pain, and mitral valve prolapse per history. Records in
September 2014 indicated hypertension was mild, and controlled with low
dose therapy.
Echocardiogram in April 2014 showed mild global left ventricular
dysfunction with left ejection fraction of 45%. Mild right ventricular
hypokinesis was also noted. In May 2014, the claimant was diagnosed
with stage I congestive heart failure and referred to cardiology for
management. Notes in August 2014 from Dr. Steven Allyn, the claimant’s
cardiologist, indicated that clinically, the claimant was doing well. There
was no need for statin therapy. She was diagnosed with NYHA class II.
Class II symptoms include slight limitation of physical activity, but
comfortable at rest. Ordinary physical activity results in fatigue, palpitation,
and dyspnea (shortness of breath). The claimant returned to Dr. Allyn in
February 2015 for a six-month follow up. The claimant reported chest pain
unrelated to activity. She denied exertional dyspnea.
Records from Dr. [Glenton W. Davis] in October 2013 showed a diagnosis
of fibromyalgia. The claimant was prescribed Ultram and Lyrica for her
symptoms. In November 2013, the claimant rated her pain a 3-4. The
claimant reported pain in the low back and knees during physical exam.
Records from Amy Atkins, ARNP in May 2014 from the Clinic for
Rheumatic Diseases showed a slightly elevated sedimentation rate and
6
low vitamin D levels. Musculoskeletal examination was normal. Physical
exam in 2015 showed tenderness and pain with range of motion of the
cervical spine, and tenderness in the lumbar spine. The claimant had
normal range of motion in the hands, wrists, elbows, knees, and ankles.
Notes from Cahaba Mental Health Center in 2014 showed treatment for
depression and anxiety. The claimant presented in [] September 2014 with
euthymic mood and full affect. She denied side effects due to her
medications. The claimant indicated she was taking 16 hours of classes,
and had stable mood and appetite within normal limits. Insight and
judgment were fair. The claimant reported anxiety about her disability
hearing in December 2014 and February 2015. Individual therapy focused
on situational stressors.
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.
In terms of the claimant’s alleged limitations, the undersigned finds the
claimant’s hearing testimony less than fully credible. The claimant testified
to headaches, but records from Dr. Caballero in February 2013 indicated
that the claimant’s headaches were partially controlled with Cymbalta.
Although there is a diagnosis of cardiomyopathy, it is described as
borderline. MRI of the cervical, thoracic, and lumbar spine in July 2013
was normal. Records from Dr. Allyn, the claimant’s cardiologist, classify
her heart condition as Class II. In August 2014, Dr. Allyn noted that the
claimant was doing well, and there was no indication for statin therapy.
The claimant reported numbness in the lower extremities, but nerve
conduction studies in July 2014 did not show evidence of lumbar
radiculopathy or peripheral neuropathy. The claimant was diagnosed with
depression and anxiety, but records attribute her symptoms to situational
stressors, including her disability hearing and son’s recent unemployment.
The claimant’s last treatment note in January 2015 indicated follow-up in
4-5 months. The length of time indicated suggests the claimant’s
impairments are not so critical as to require frequent monitoring. Despite
her impairments, the claimant is able to prepare simple meals, do light
household chores, shop for groceries and [perform] household
necessities, drive, attend church services regularly, and[,] until September
2014, attend vocational classes. The claimant’s activities of daily living are
commensurate with a range of light work activity.
As for the opinion evidence, the undersigned gives significant but not
great weight to the psychological portion (Dr. Gloria Roque) of the January
7
2014 State agency Disability Determination Explanation indicating mild to
moderate mental limitations. Findings are consistent with treatment notes
from Cahaba Mental Health and the claimant’s level of functioning,
illustrated by her activities of daily living. Dr. Roque found mild limitations
in restriction of activities of daily living and difficulties in maintaining
concentration, persistence or pace and none in repeated episodes of
decompensation. She stated that the claimant should be able to carry out
short, simple one and two step job instructions, but should avoid
excessive workloads, rapid changes and multiple demands. The claimant
would benefit from a slowed pace but would still be able to maintain an
acceptably consistent work pace. Changes in routine job duties should be
limited and introduced gradually. Records since that time show an
improvement in her condition as notes from Cahaba Mental Health Center
[indicate] the claimant presented in [] September 2014 with euthymic
mood and full affect. She denied side effects due to her medications. The
claimant indicated she was taking 16 hours of classes, and had stable
mood and appetite within normal limits.
The undersigned gives little weight to the January 2015 opinion of Dr.
Davis that the claimant is disabled. Opinions on some issues, such as
statements that a claimant is “disabled,” “unable to work,” or “unable to
perform a past job,” are not medical opinions but are administrative
findings that are dispositive of a case. These opinions require familiarity
with the Social Security disability regulations and legal standards, and are
issues reserved for the Commissioner of Social Security.
Furthermore, Dr. Davis’ opinion is inconsistent with the findings of Dr.
Allyn, the claimant’s treating cardiologist, who indicates she is doing well.
Although the claimant reports pain[,] during follow[-]up visits with Dr.
Davis, examinations do not show significant objective findings. Exams with
Dr. Davis generally describe her as stable. On November 6, 2013, the
claimant described her pain as 3-5 on a scale of 0-10, which shows some
management with treatment. For these reasons, the opinion relating the
claimant’s employment disposition is neither controlling nor persuasive.
More consideration is given to Dr. Allyn as he is a specialist and treating
physician, and provides assessments that are consistent with his
examination findings and the evidence of record as a whole.
In sum, the above residual functional capacity assessment is supported by
evidence of record as a whole. Consideration has been given to all
evidence of record, as noted above. All limitations consistent [with] the
evidence of record as a whole have been accounted for in the residual
functional capacity assessment.
6.
The claimant is unable to perform past relevant work (20 CFR
404.1565).
8
.
.
.
7.
The claimant was born on May 29, 1974 and was 39 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563).
8.
The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 404.1569 and 404.1569(a)).
.
.
.
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.18. However, the claimant’s ability to perform
all or substantially all of the requirements of this level of work has been
impeded by additional limitations. To determine the extent to which these
limitations erode the unskilled light occupational base, the Administrative
Law Judge asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work
experience, and residual functional capacity. The vocational expert
testified that given all of these factors the individual would be able to
perform the requirements of representative occupations such as: ticket
taker (DOT# 344.667-010) light work, SVP 2, with 1,000 jobs in the local
economy and 22,000 nationwide; garment sorter (DOT# 222.687-014)
light work, SVP 2, with 840 jobs in the local economy and 54,000
nationwide; and office helper (DOT# 239.567-010) light work, SVP 2, with
840 jobs in the local economy and 24,000 nationwide.
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
9
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of the above-cited rule.
11.
The claimant has not ben under a disability, as defined in the
Social Security Act, from June 5, 2013, through the date of this
decision (20 CFR 404.1520(g)).
(Tr. 25, 26, 27, 27-30, 30, 31 & 32 (most internal citations omitted)).
II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (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
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform h[is] 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. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9,
2012)3 (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, at the fourth step, of proving that she is unable to perform
her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating
whether the claimant has met this burden, the examiner must consider the following four
factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age, education and work history.
Id. at 1005. Although “a claimant bears the burden of demonstrating an inability to return
to her past relevant work, the [Commissioner of Social Security] has an obligation to
3
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
10
develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). If a plaintiff proves that she cannot do her past relevant work, as
here, it then becomes the Commissioner’s burden—at the fifth step—to prove that the
plaintiff is capable—given her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Phillips,
supra, 357 F.3d at 1237; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert.
denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764
F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny Ward benefits, on the basis that she can perform those light jobs
identified by the vocational expert during the administrative hearing, is supported by
substantial evidence. Substantial evidence is defined as more than a scintilla and
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d
842 (1971). “In determining whether substantial evidence exists, we 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).4
Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per
curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “’[e]ven if
the evidence preponderates against the Commissioner’s findings, [a court] must affirm if
4
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
11
the decision reached is supported by substantial evidence.’” Id. (quoting Crawford v.
Commissioner of Social Sec., 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Ward asserts two reasons the Commissioner’s decision
to deny her benefits is in error (i.e., not supported by substantial evidence): (1) the ALJ
erred in rejecting the opinion of the treating physician, Dr. Glenton W. Davis; and (2) the
ALJ erred in misrepresenting the opinion of the treating psychiatrist.
A.
Opinion of Plaintiff’s Treating Physician, Dr. Glenton W. Davis. On
January 26, 2015, Dr. Davis wrote a letter to Plaintiff’s attorney wherein he stated Ward
was “disabled[]” and, in support thereof, referred to the attached physical capacity
examination form he completed on January 25, 2015. (Tr. 741; see also id. (“She has
diagnoses of fibromyalgia, congestive heart failure, stage III[,] and cardiomyopathy.”)).
Indeed, Davis completed not only the Physical Medical Source Statement (“PCE”)
referenced in his letter, but, as well, a Clinical Assessment of Pain (“CAP”) form. (Tr.
742-43.) On the PCE, Davis check-marked or circled findings indicating that Ward
would be unable to perform even sedentary work. (Tr. 742 (findings indicate Ward can
only sit and stand or walk one hour each out of an 8-hour workday, can lift only 5
pounds occasionally and one pound frequently, and would miss more than three days of
work per month because of her impairments)). On the CAP, Davis circled items to
indicate that: (1) pain is present to such an extent as to be distracting to adequate
performance of daily activities; (2) physical activity—such as walking, standing, bending,
lifting, etc.—would greatly increase Plaintiff’s pain so as to cause distraction from or
total abandonment of task; (3) some medication side effects can be expected but these
side effects will be only mildly troublesome to Plaintiff; (4) Plaintiff’s medical condition
12
could reasonably be expected to produce the pain complained of; and (5) Plaintiff’s pain
prevents her from maintaining concentration, attention, and pace for periods of at least
two hours. (Tr. 743.)
The law in this Circuit is clear that an ALJ “’must specify what weight is given to a
treating physician’s opinion and any reason for giving it no weight, and failure to do so is
reversible error.’” Nyberg v. Commissioner of Social Sec., 179 Fed.Appx. 589, 590-591
(11th Cir. May 2, 2006) (unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (other citations omitted). In other words, “the ALJ must give the
opinion of the treating physician ‘substantial or considerable weight unless “good cause”
is shown to the contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan. 15,
2014), quoting Phillips, supra, 357 F.3d at 1240 (other citation omitted); see Nyberg,
supra, 179 Fed.Appx. at 591 (citing to same language from Crawford v. Commissioner
of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Good cause is shown 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.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible
error. Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21,
2010) (per curiam).
In this case, the ALJ accorded little weight to Dr. Davis’ January 2015 opinion
(Tr. 30).
The undersigned gives little weight to the January 2015 opinion of Dr.
Davis that the claimant is disabled. Opinions on some issues, such as
statements that a claimant is “disabled,” “unable to work,” or “unable to
13
perform a past job,” are not medical opinions but are administrative
findings that are dispositive of a case. These opinions require familiarity
with the Social Security disability regulations and legal standards, and are
issues reserved for the Commissioner of Social Security.
Furthermore, Dr. Davis’ opinion is inconsistent with the findings of Dr.
Allyn, the claimant’s treating cardiologist, who indicates she is doing well.
Although the claimant reports pain[,] during follow[-]up visits with Dr.
Davis, examinations do not show significant objective findings. Exams with
Dr. Davis generally describe her as stable. On November 6, 2013, the
claimant described her pain as 3-5 on a scale of 0-10, which shows some
management with treatment. For these reasons, the opinion relating the
claimant’s employment disposition is neither controlling nor persuasive.
More consideration is given to Dr. Allyn as he is a specialist and treating
physician, and provides assessments that are consistent with his
examination findings and the evidence of record as a whole.
(Id.) Plaintiff argues that the ALJ, in according little weight to Dr. Davis’ opinion, ignored
the treating physician’s “detailed statements of limitations, errantly relied on evidence
that predated the alleged onset of disability, and improperly gave more weight to the
opinion of the treating cardiologist, who did not treat most of her impairments.” (Doc. 15,
at 5; see also id. at 5-9.)
Initially, the undersigned cannot agree with the Plaintiff’s statement that the ALJ
“ignored” Dr. Davis’ “detailed statements of limitations[,]” both because Dr. Davis “tied”
his conclusory statement that Plaintiff was disabled to the limitations set forth on the
PCE (compare Tr. 741 with Tr. 742)5 and because, far from being “detailed statements
of limitations[,]” the check-a-box/circle-the-answer forms utilized by Dr. Davis are
conclusory/uninformative, see Putnam v. Colvin, 2015 WL 12856460, *4 (M.D. Fla. Feb.
4, 2015) (“Dr. Torres’s October 16, 2008 Medical Source Statement did contain mostly
5
In other words, because Dr. Davis clearly “tied” his conclusory statement of
disability to the findings on the PCE, it was not necessary for the ALJ to separately delineate the
PCE limitations in order to convey to the reader that she was evaluating Davis’ opinion as a
whole.
14
form checkmarks as opposed to detailed explanations of the Plaintiff’s limitations, and
the ALJ was entitled to discount its probative value where it failed to reference any
objective clinical and laboratory findings.”), and constitute “weak evidence at best.”
Mason v. Shalala, 994 F.2d 1058, 1065 (3rd Cir. 1993). In addition, it is clear to this
Court that the second paragraph of analysis is directed at those very limitations noted
by Dr. Davis; therefore, the ALJ certainly did not ignore Davis’ forms or the limitations
described on them.
The ALJ, of course, in the first paragraph of her analysis of Dr. Davis’ opinion,
correctly afforded little weight to the treating physician’s conclusory letter statement that
Ward is “disabled” (see Tr. 741; compare id. with Tr. 30), inasmuch as the determination
of disability is reserved for the Commissioner. Dr. Davis’ statement is not a medical
opinion and, therefore, is not entitled to be given any significance. Compare Kelly v.
Commissioner of Social Sec., 401 Fed.Appx. 403, 407 (11th Cir. Oct. 21, 2010) (“A
doctor’s opinion on a dispositive issue reserved for the Commissioner, such as whether
the claimant is ‘disabled’ or ‘unable to work,’ is not considered a medical opinion and is
not given any special significance, even if offered by a treating source[.]”) with Symonds
v. Astrue, 448 Fed.Appx. 10, 13 (11th Cir. Oct. 31, 2011) (“[T]he ultimate issue of
disability is left to the determination of the Commissioner; and a statement by a medical
source that a claimant is ‘disabled’ or ‘unable to work’ is not binding on the ALJ.”).6 And,
6
In her brief, Plaintiff makes no argument to the contrary. (See Doc. 15, at 6-7
(“The second mention of Dr. Davis was in the ALJ’s explanation that she gave his opinion little
weight. ‘Opinions on some issues, such as statements that a claimant is ‘disabled,’ ‘unable to
work,’ or ‘unable to perform a past job,’ are not medical opinions but are administrative findings
that are dispositive of a case.’ (Tr. 30). This reference could be appropriate in regard to the
letter Dr. Davis wrote on January 26, 2015, but not in regard to the detailed assessment forms
completed by Dr. Davis on January [2]5, 2015.”)).
15
again, because Dr. Davis “tied” his letter statement of “disability” to the limitations
contained on the PCE, the ALJ did not err in any manner in simply continuing his
analysis of Davis’ opinion, as reflected on the PCE and the CAP, without specifically
delineating the “limitations” check-marked or circled by Davis. And, here, of course, the
ALJ found the “checked” and “circled” statements/limitations in the PCE and CAP to be
inconsistent with Dr. Davis’ own exam findings and the other medical evidence and
treatment of record (see Tr. 30 (specifically noting the inconsistency in Dr. Davis’
opinion and that of Dr. Allyn and noting that the treating physician’s opinion was
inconsistent with his own lack of significant objective examination findings and
descriptions of Plaintiff as stable, as well as Plaintiff’s own report on November 6, 2013,
that her pain was not disabling)), thereby making it clear that the ALJ followed the
appropriate standard, see Gilabert, supra, 396 Fed.Appx. at 655. Thus, the only
remaining question is whether this second portion of the ALJ’s analysis of Dr. Davis’
opinion is supported by substantial evidence.
The undersigned finds that the ALJ’s analysis of Dr. Davis’ opinion is supported
by substantial record evidence. Before his January 2015 opinion, Dr. Davis last
conducted an examination of Plaintiff on December 15, 2014 (compare Tr. 741-43 with
Tr. 745), at which time he objectively observed that she was in no acute distress, her
cardiovascular examination was normal, and her extremities were stable. (Tr. 745).
More often than not in the eleven months prior to December 15, 2014, Dr. Davis
recorded objective examination findings similar to those made during the December
treatment note (see Tr. 594 (on May 20, 2014, cardiovascular exam was normal and
extremities were noted to be stable); Tr. 595-96 & 598 (on January 8, 2014, March 25,
16
2014, and April 8, 2014, Plaintiff was in no acute distress, her cardiovascular exam was
normal and extremities were noted to be stable); Tr. 746 (on November 3, 2014,
cardiovascular exam was normal and extremities were noted to be stable); Tr. 749 (on
August 25, 2014, Dr. Davis made the exact same objective examination findings as he
did on December 15, 2014); Tr. 750 (on July 15, 2014, Davis’ objective findings
included that Ward’s cardiovascular exam was normal and that her extremities were
stable)), although on three occasions the treating physician noted abnormal clinical
findings (Tr. 597 (on February 28, 2014, Davis noted a normal cardiovascular exam and
stable extremities but also that examination of the neck revealed a 1+ spasm)) or
otherwise observed pain (Tr. 747 (on October 27, 2014, Davis noted a normal
cardiovascular exam but “[p]ain of the legs radiating to the lower extremities.”)) or
trigger point tenderness (Tr. 748 (on September 10, 2014, Davis noted Plaintiff to be in
no acute distress, a normal cardiovascular examination, but a musculoskeletal “exam
with trigger pain tenderness throughout.”)). These objective observations from Davis,
which are consistent with the treating physician’s examination observations in 2013 (see
Tr. 509 (on October 2, 2013, Davis noted that his “[w]ork up showed fibromyalgia[]” but
also that the MRI results were normal and that Plaintiff was in no acute distress on
examination); Tr. 510 (on August 28, 2013, cardiovascular examination was normal and
Ward’s extremities were stable); Tr. 511 (on July 31, 2013, cardiovascular examination
was normal and Ward’s extremities were stable); Tr. 512 (on June 26, 2013, Plaintiff
was observed to be in no acute distress, her cardiovascular exam was normal, and her
extremities were stable)), simply are not reflective of the significant limitations set forth
in Dr. Davis’ January 2015 opinion—both with respect to physical limitations and pain
17
limitations—and, therefore, the Court concludes that the ALJ did not err in her
determination that Dr. Davis’ own medical records do not support his January 2015
opinion. See Gilabert, supra, 396 Fed.Appx. at 655 (good cause exists to accord less
than substantial or considerable weight to a treating physician’s opinion where that
opinion is inconsistent with the doctor’s own medical records).7 Indeed, as in Putnam,
supra, at *4, the ALJ in this case did not err in discounting the probative value of Davis’
PCE and CAP because both forms consisted entirely of checkmarks or circles without
referencing any objective clinical and laboratory findings. See id.
The undersigned also cannot fault the ALJ for affording more weight to the
findings of Dr. Allyn, the treating cardiologist, over those of Dr. Davis, on the basis that
Allyn’s assessment that Plaintiff was “doing well” was consistent with his own
examination findings and the evidence of record as a whole. After all, in his cover letter
dated January 26, 2015, Davis made clear that he completed the PCE (in particular)
having in mind Ward’s diagnoses of fibromyalgia, congestive heart failure and
cardiomyopathy (Tr. 741). Therefore, the limitations imposed by Dr. Davis were
excessive to the extent he intended to link those limitations to Plaintiff’s congestive
heart failure and cardiomyopathy (compare Tr. 741 with Tr. 742), given not only the
7
To the extent Plaintiff tries to explain what Dr. Davis meant by “stable” (see Doc.
15, at 7 (noting that Davis’ use of the word stable “simply refers to a lack of change, either better
or worse. Stable . . . extremities [is] irrelevant to the presence of fibromyalgia, neck pain, back
pain, depression or headaches.”)), this Court cannot agree with her argument because Davis
showed himself capable, for instance, of identifying trigger point tenderness, as a result of
fibromyalgia, when it existed and certainly would have consistently emphasized Plaintiff’s
fibromyalgia pain, if she was in such pain, as opposed to the numerous notations that Plaintiff
was in no acute distress. In addition, the Court finds that this argument is an attempt to shift the
Court’s focus entirely to diagnoses, as opposed to clinical and laboratory findings indicative of
limitations, which is unhelpful since diagnoses or “the mere existence of [] impairments does not
reveal the extent to which they limit [Plaintiff’s] ability to work or undermine the ALJ’s
determination in that regard.” Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005).
18
records of the treating cardiologist (see Tr. 651-59), particularly from August 7, 2014
when Allyn noted that Ward was “doing well” from a clinical standpoint (Tr. 652), but, as
well, Davis’ own records, which consistently describe normal cardiovascular
examinations (see, e.g., Tr. 510-12, 594-99 & 745-49). And while Dr. Allyn admittedly
did not treat Plaintiff’s fibromyalgia, he was aware of this diagnosis (Tr. 651 & 654) and
consistently noted on physical examination that Plaintiff was in no acute distress, had a
normal gait, and had no edema of the extremities (see id.). When this evidence from Dr.
Allyn is combined with the all but nonexistent objective clinical findings from Dr. Davis
(see Tr. 509-12, 594-98 & 745-50) and the majority of the remaining objective medical
evidence of record (see, e.g., Tr. 555-56 (Tr. 633-34 (five x-ray views of the C-Spine on
June 26, 2013 were normal); Tr. 606-07 (March 28, 2014 MRI of the L-Spine revealed
no focal disc protrusion, spinal stenosis, or other significant arthritic change); Tr. 635-36
(five x-ray views of the L-Spine on June 26, 2013 revealed no acute abnormality, only
mild diffuse degenerative changes in the lower lumbar spine); Tr. 637-38 (February 28,
2014 x-rays of the C-Spine revealed no significant plain film abnormality and no
significant change when compared to the films from June of 2013); Tr. 640-41 (February
28, 2014 x-rays of the L-Spine revealed a mild anterior osteophyte formation in the
upper and lower lumbar levels but no gross posterior osteophytes or pathologic
narrowing of disc spaces; there was not significant-appearing plain film abnormality of
the lumbar spine and no significant change when compared to the films from June of
2013); Tr. 677-78 (September 8, 2014 visit to the emergency room, where Plaintiff’s
complaints included neck and back pain and physical examination revealed that she
was in no acute distress, her back was normal on inspection, and her extremities were
19
non-tender, with full range of motion and no pedal edema); Tr.751-52 (October 30, 2014
MRI of the L-Spine was normal, showing no disc protrusions, spinal stenosis or neural
foramen stenosis) & Tr. 754-58 (July 23, 2014 Nerve Conduction Studies were within
normal limits, in particular, there was no evidence of lumbar radiculopathy and
peripheral neuropathy involving LE’s)),8 this Court can find neither that the ALJ erred in
affording more weight to Dr. Allyn’s assessment over the opinion of Dr. Davis or that
there is any record support for the significant limitations imposed by Dr. Davis on
January 25, 2015.
Based on the foregoing, the undersigned finds no error in the ALJ’s evaluation of
the conclusory opinion Dr. Davis expressed in his January 26, 2015 letter or her
evaluation of the uninformative form reports completed by Dr. Davis on January 25,
2015.
B.
Did the ALJ Misrepresent the Opinion of the Treating Psychiatrist?
Plaintiff next contends that the ALJ reversibly erred in misrepresenting the opinion of the
treating psychiatrist by making the following statement: “The claimant’s last treatment
note in January 2015 indicated follow up in 4-5 months. The length of time indicated
suggests the claimant’s impairments are not so critical as to require frequent
8
Plaintiff argues that the ALJ erroneously addressed medical records in her
decision that predate the disability onset date of June 5, 2013. (Doc. 15, at 7 (referencing the
ALJ’s specific citation to a lumbar MRI in September 2012, an examination in March 2013, and
a neurological examination in February 2013)). Even if this Court were to agree that the ALJ
should not have relied on any evidence dated prior to June 5, 2013 to support her ultimate
determination that Plaintiff is not disabled, such error was harmless inasmuch as there is similar
evidence in the record postdating the onset date of disability that likewise supports the ALJ’s
conclusion that the “longitudinal medical evidence of record does not fully support the claimant’s
allegation of disability.” (Tr. 28.) Indeed, there are numerous MRI and x-ray records postdating
June 5, 2013 that reveal no significant findings with respect to Plaintiff’s C-Spine and L-Spine;
instead, these records reveal, at best, mild degenerative changes. (See, e.g., Tr. 555-56, 60607, 635-38, 640-41 & 751-52; cf. Tr. 754-58 (normal Nerve Conduction Studies)).
20
monitoring.” (Tr. 29 (internal citation omitted)). Plaintiff points out in her brief both that
the treatment note from January 2015 was not the last treatment note in the record
(Doc. 15, at 10 (referencing a treatment note dated February 17, 2015)), such that the
ALJ ignored this last treatment note, but, as well, that the ALJ performed only a cursory
review of the mental health notes (see Doc. 15, at 11). Plaintiff contends that the ALJ’s
failure to acknowledge the therapy note dated after January 2015, when combined with
her cursory review of the other mental health notes, amounts to reversible error, given
that “[t]he ALJ must state with particularity the weight accorded ‘to each item of
evidence[.]’” (Doc. 15, at 11, quoting Randolph v. Astrue, 291 Fed.Appx. 979, 981 (11th
Cir. Sept. 10, 2008)).
The undersigned cannot find that the ALJ reversibly erred in her analysis of
Plaintiff’s mental impairments (depression and anxiety) and the mental health treatment
notes of record. Initially, the undersigned notes that while the ALJ certainly referenced
Plaintiff’s “last treatment note in January 2015 indicated follow up in 4-5 months[,]” (Tr.
29), this reference was simply with respect to Julie Van Sice’s last appointment with
Ward;9 the ALJ decidedly did not ignore the February 2015 individual therapy session
note of record, as she referenced it and observed that “[i]ndividual therapy focused on
situation stressors.” (Tr. 29.) In addition, while the ALJ’s summary of the mental health
notes in the record was somewhat brief, it was not inordinately brief because the ALJ
mentioned those notes both at Step 3 of the sequential evaluation process (see Tr. 2627 (referencing the notes from Cahaba Mental Health Center in finding that Ward has
moderate difficulties with regard to concentration, persistence and pace)) and at Steps 4
9
Sice is a psychiatric nurse practitioner. (See, e.g., Tr. 616.)
21
and 5 of that process (see Tr. 29-30). Plaintiff has simply not identified what in those
mental health notes from Cahaba Mental Health Center, of which there were a precious
few (see Tr. 520-22, 611-17, 735-39 & 786-88), the ALJ failed to accord proper weight10
and certainly has not made any suggestion, much less established, that those mental
health notes demonstrate more severe mental limitations than those included by the
ALJ in her RFC determination (compare Tr. 520-22, 611-17, 735-39 & 786-88 (no
mental limitations identified) with Tr. 27 (“She is limited to simple tasks, and can
tolerate few gradually introduced changes in a routine work setting. The claimant
can tolerate ordinary work pressures, but should avoid excessive workloads,
rapid changes and multiple demands.”11)). Accordingly, this Court cannot find that the
ALJ either misrepresented the opinion of the treating “psychiatrist,”12 or that she
10
It is also clear Eleventh Circuit law that “’there is no rigid requirement that the
ALJ specifically refer to every piece of evidence in [her] decision.’” Randolph, supra, 291
Fed.Appx. at 982, quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). And, here,
the ALJ committed no error because there is simply nothing in the mental health records from
Cahaba Mental Health Center which supports Plaintiff’s position that “her mental health issues
directly led to her inability to continue to attend school.” (Doc. 15, at 10-11.) Indeed, while those
records do contain a report by Plaintiff to Van Sice, on May 21, 2014, that school was causing
her a lot of stress and she had to go to the ER due to stress and depression (Tr. 737 (report of
taking 16 hours at Wallace Community College)), and a report to her therapist on September 9,
2014 that she was withdrawing from class (Tr. 739), there is no evidence in the record
establishing that she withdrew from school while taking the 16 hours of classes the ALJ
references in her decision (compare Tr. 737 with Tr. 29 & 30); indeed, the record establishes
that Plaintiff did not withdraw from school until almost eight months later, on January 5, 2015,
with her withdrawal being directly linked to her diagnosed fibromyalgia (Tr. 744).
11
The undersigned would simply note that the mental limitations found by the ALJ
are supported by evidence in the record. (See Tr. 75-76 (January 24, 2014 mental RFC analysis
by non-examining, reviewing psychologist reveals that Ward should be able to understand short
and simple one to 2-step job instructions; tolerate ordinary work pressures but should avoid
excessive workloads, rapid changes, and multiple demands; and changes in routine job duties
should be limited and introduced gradually)).
12
The records from Cahaba Mental Health Center establish that Ward was not
being treated by a psychiatrist; instead, she was being seen and treated by Sice, a psychiatric
nurse practitioner. (See, e.g., Tr. 616 & 737.)
22
improperly evaluated the mental health treatment notes from the Cahaba Mental Health
Center.
There being no other claims of error asserted, the Court finds that the
Commissioner’s final decision denying Ward benefits is due to be affirmed.
CONCLUSION
In light of the foregoing analysis, it is ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff benefits be affirmed.
DONE and ORDERED this the 6th day of September, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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