Russell v. Social Security Administration et al
OPINION AND ORDER affirming the decision of the Social Security Administration. Austin Russell's complaint is dismissed with prejudice. Signed by Judge J. Leon Holmes on 6/12/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
OPINION AND ORDER
Austin Russell appeals the decision of the Commissioner of Social Security to deny his
application for Social Security disability benefits, arguing that the administrative law judge
improperly gave little weight to the opinions of his treating physician, Dr. Carlos Choycino, who
completed two physical function assessments and one mental function assessment. Dr. Choycino
reported that Russell had marked physical restrictions and significant mental limitations. The
administrative law judge discussed the medical records extensively, including the records of
Dr. Choycino (Tr. 18-22), before concluding:
Although Dr. Coucino [sic] is a treating source, as discussed above, there are
significant inconsistencies in his reports, as well as a lack of objective evidence
supporting the extreme functional limitations that he set out. The course of treatment
pursued by Dr. Coucino [sic] has not been consistent with what one would expect if
the claimant’s limitations were as severe as Dr. Coucino [sic] indicated.
Additionally, with regard to the mental limitations, Dr. Coucino [sic] is offering an
opinion outside of his area of expertise. As such, little weight is granted to his
This action was referred to a magistrate judge for recommended disposition. The magistrate
judge recommended that the decision of the Commissioner of Social Security be affirmed. The
magistrate judge construed Russell’s argument on appeal to be that the administrative law judge
erred in failing to give controlling weight to Dr. Choycino’s opinions. Russell objects to the
magistrate judge’s recommended disposition because, he says, the magistrate judge misconstrued
his argument, which is not that the administrative law judge erred in failing to give controlling
weight to Dr. Choycino’s opinions but that the magistrate judge erred in giving little weight to those
opinions, and he argues, therefore, that the magistrate judge applied the wrong legal standard.
Russell also objects that the magistrate judge affirmed for reasons other than those articulated by
the administrative law judge.1 After reviewing the record de novo, for the reasons that follow, the
Court adopts the magistrate judge’s recommendation that the Commissioner of Social Security be
Twenty C.F.R. § 404.1527 prescribes the manner in which the Social Security
Administration weighs medical opinions. Here, the administrative law judge’s evaluation of the
medical opinions in the record is consistent with that regulatory provision.
Dr. Choycino assessed Russell as having marked restrictions in carrying out the activities
of daily life, but, as the administrative law judge pointed out (Tr. 19-20), Russell’s description of
his daily activities in the function report that he completed are inconsistent with that assessment.
Russell reported that he prepares breakfast, lunch, and dinner, and he feeds and waters his dogs.
Tr. 143. He does light cleaning, laundry, sweeping, and light mopping. Tr. 144. He drives a car,
shops in stores, pays his bills, and otherwise handles his own financial affairs. Tr. 145.
Similarly, Dr. Choycino opined that Russell would miss more than four days of work per
month, but Russell said that when he was discharged he had not been missing work at all. Tr. 19-20;
33; 294; 300. Russell argues that his condition deteriorated between the date he was discharged
It is a “well-settled principle of administrative law that a reviewing court may not uphold
an agency decision based on reasons not articulated by the agency itself in its decision.” Mayo v.
Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990) (citing, inter alia, Sec. and Exch. Comm’n v. Chenery
Corp., 318 U.S. 80, 87, 63 S. Ct. 454, 459, 87 L. Ed. 626 (1943)).
from his job in August 2011 and the date that Dr. Choycino completed the assessments, January 15,
2013, but the evidence does not support that conclusion. Tr. 20.
The administrative law judge also correctly noted that the two physical function assessments
were completed on the same day and were inconsistent. Tr. 21. For example, in one assessment,
Dr. Choycino reported that Russell could stand/walk approximately four hours in an eight-hour day
(Tr. 293), whereas in the other assessment he reported that Russell could stand/walk less than two
hours in an eight-hour work day (Tr. 298). On one of the assessments, Dr. Choycino reported that
Russell would be required to take two unscheduled breaks during an average eight-hour work day
(Tr. 293-94), whereas on the other assessment he appears to report that Russell would be required
to take unscheduled breaks every thirty to forty-five minutes during a working day (Tr. 298).
Furthermore, the administrative law judge correctly noted the lack of objective evidence
supporting the extreme functional limitations described by Dr. Choycino. Russell’s primary
diagnosis is that he is HIV positive, but the medical records reflect no opportunistic infections2 or
other indicator conditions generally associated with that disease. Tr. 19. Cf. Heath v. Colvin, Case
No. 5:14CV223, at *3, 2015 WL 1959710 (N.D.N.Y. April 29, 2015) (slip opinion). He has
diabetes but he is not taking insulin, and the records evidence no secondary complication or
functional limitation as a result. Tr. 20.
No evidence in the record describes any muscle atrophy, loss of range of motion, neuropathy
or any other objective factor that would support a finding of the marked physical limitations that
20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 14.00; see also United States v. Rabins, 63
F.3d 721, 727 n.7 (8th Cir. 1995) (quoting The Merck Manual 77 (Robert Berkow, M.D., et al. eds.,
1992) (“AIDS is defined as: ‘[A] secondary immunodeficiency syndrome resulting from HIV
infection and characterized by opportunistic infections, malignancies, neurologic dysfunction, and
a variety of other syndromes.’” ) (alteration in Rabins)).
Dr. Choycino attributed to Russell. As the administrative law judge pointed out, the course of
treatment pursued by Dr. Choycino has not been consistent with what one would expect if Russell’s
physical limitations were as severe as he indicated. Finally, the administrative law judge correctly
noted that with regard to the mental limitations Dr. Choycino was offering an opinion outside of his
area of expertise.
All of the administrative law judge’s reasons for giving Dr. Choycino’s opinions little weight
are supported by the record and are consistent with 20 C.F.R. § 404.1527. Cf. Miller v. Colvin, 784
F.3d 472 (8th Cir. 2015) (affirming an administrative law judge’s decision to accord little weight
to the opinion of the claimant’s treating physician); Cline v. Colvin, 771 F.3d 1098 (8th Cir. 2014)
(same); Whitman v. Colvin, 762 F.3d 701 (8th Cir. 2014) (same).
The administrative law judge concluded that Russell has the residual functional capacity to
do light work with some restrictions. Tr. 18. Russell’s past relevant work was as a dietary manager,
which is work that can be performed by a person with Russell’s residual functional capacity. Tr.
23, 49. Therefore, the administrative law judge concluded that Russell has not been under a
disability. Tr. 23-24. The administrative law judge’s determination is supported by substantial
evidence and is not infected by any legal error. The decision of the Social Security Administration
to deny Austin Russell’s application for Social Security disability benefits is therefore affirmed.
Austin Russell’s complaint is dismissed with prejudice.
IT IS SO ORDERED this 12th day of June, 2015.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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