Brown v. Social Security Administration
ORDER denying the 2 Complaint filed by Billy T Brown, Jr and affirming the Commissioner's decision. Signed by Judge Kristine G. Baker on 9/11/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
No. 5:11CV00107 KGB-HDY
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
OPINION AND ORDER
This case considers plaintiff-claimant Billy T. Brown's appeal of defendant
Commissioner Michael J. Astrue' s denial of Brown's applications for Disability Income
Benefits (DIB) and Supplemental Security Income (SSI). Brown asked the court to reverse
the Commissioner's decision and remand his case to the Social Security Administration
(SSA) for the award of benefits. After considering the record, the arguments of the parties,
and the applicable law, this court affirms the Commissioner's decision.
Scope of Judicial Review for a Disability-Benefits Appeal
When reviewing a decision denying an application for disability benefits, the court
must determine whether substantial evidence supports the Commissioner's decision and
whether the Commissioner made a legal error. See 42 U.S.C. § 405(g) (requiring the district
court to determine whether the Commissioner's findings are supported by substantial
evidence and whether the Commissioner conformed with applicable regulations); Slusser
v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (stating that the court's "review of the
Commissioner's denial of benefits is limited to whether the decision is 'supported by
substantial evidence in the record as a whole"'); Long v. Chafer, 108 F.3d 185, 187 (8th Cir.
1997) ("We will uphold the Commissioner's decision to deny an applicant disability
benefits if the decision is not based on legal error and if there is substantial evidence in the
record as a whole to support the conclusion that the claimant was not disabled.").
Substantial evidence is more than a mere scintilla of evidence; it means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Slusser,
557 F .3d at 925. In determining whether substantial evidence supports the Commissioner's
decision, the court must consider evidence that detracts from the Commissioner's decision
as well as evidence that supports the decision, but the court may not reverse the
Commissioner's decision simply because substantial evidence supports a contrary decision.
See Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolfv. Shalala, 3 F.3d 1210, 1213
(8th Cir. 1993).
The Disputed Issues
In this case, the parties do not dispute that Brown exhausted his administrative
remedies, see Anderson v. Sullivan, 959 F.2d 690,692 (8th Cir. 1992) (stating that "the Social
Security Act precludes general federal subject matter jurisdiction until administrative
remedies have been exhausted" and explaining that the Commissioner's appeal procedure
permits claimants to appeal only final decisions), or that the Commissioner's administrative
law judge (ALJ) followed the required five-step process for determining whether a DIB/SSI
claimant is disabled, see 20 C.F.R. §§ 404.1520 & 416.920 (setting forth the five-step
sequential evaluation process used for determining whether a claimant is disabled and
entitled to disability benefits). Instead, Brown complained about the ALJ's determination
about his mental impairment.
The Commissioner's Decision
After considering Brown's DIB/SSI applications, the ALJ determined that despite
having severe impairments-degenerative disc disease, pseudothrombocytopenia (also
anxiety disorder with
agoraphobia- Brown had the residual functional capacity (RFC) to perform less than the
full range of light work. SSA record at p. 21. Relevant to this judicial review, the ALJ
found that Brown could understand, remember, and carry out simple job instructions;
make judgments in simple work-related situations; and respond appropriately to coworkers and supervisors. The ALJ determined that Brown must work primarily in
isolation or seclusion from other workers, with very little if any contact with other workers
during the workday, and that Brown was incapable of dealing with the general public or
responding appropriately to minor changes in the usual work routine. Id. at p. 21. The ALJ
determined that Brown could perform work that existed in the national economy, and thus
concluded that Brown was not disabled under the Social Security Act. Id. at p. 27.
Substantial Evidence Supports the Commissioner's Conclusion
Previously, Brown was self-employed as a carpenter. Id. at p. 162. Brown alleged
he became disabled on February 15, 2000, id. at p. 123 & 130, due to back problems and a
blood disorder, id. at p. 141. Brown initially reported that these conditions caused him to
stop working on October 15, 2002, id. at p. 141, but he later reported working until August
2008, id. at p. 162.
Brown did not attribute disability to mental impairment until November 7, 2008.
Id. at p. 175 (complaining about depression and anxiety). At that point, Brown had
received no mental health treatment, except for anti-anxiety medication prescribed by his
primary care physician. The day before his hearing, Brown obtained an opinion from a
psychiatrist, opining that Brown would have difficultly working at a regular job on a
sustained basis. Id. at p. 398. The ALJ rejected the decision and determined that Brown's
mental impairment did not prevent him from working.
The following evidence supports the ALJ's determination: (1) Dr. David Foscue's
treatment notes, (2) the results of a lumbar myelogram, (3) Dr. Asif Masood's treatment
notes, (4) Dr. Shamim Malik's treatment notes, (5) Dr. Jim Takach's physical RFC
assessment, and (6) vocational expert testimony.
Dr. Foscue' s treatment notes. Dr. Foscue is a primary care physician who treated
Brown since 2001. Dr. Foscue diagnosed Brown with degenerative joint disease on
July 6, 2001. Id. at p. 273. Because Brown complained about lower back pain, Dr. Foscue
referred Brown to a neurosurgeon who ordered a MRI of Brown's lumbar spine. The
neurosurgeon reported that the MRI showed "very little"- "just a minimal defect at L4-5
on the right side" -and characterized the results as "not enough to cause his pain." Id. at
p. 208. Because of Brown's "persistent complaints of pain," id. at p. 208, the neurosurgeon
ordered a MRI of the thoracic spine in effort to account for Brown's complaints; however,
the MRI was normal, id. at p. 199. This evidence did not support Brown's allegation of
disabling lower back pain. Instead, it supported the ALJ' s determination that Brown can
The lumbar myelogram.
A subsequent lumbar myelogram also failed to
substantiate Brown's allegation of disabling lower back pain. Id. at p. 235. A myelogram
uses a contrast to detect pathology of the spinal cord. See J.E. Schmidt, M.D., Attorney's
Dictionary of Med. M-312. The myelogram of Brown's lumbar spine showed degenerative
changes at L4-5 and intact nerve root sleeves bilaterally at all levels. SSA record at p. 235.
Compromise of a nerve root can cause severe pain, see 3 The Gale Encyclopedia of Med.
2111 (4th ed.) (explaining that pressure on a spinal nerve can cause considerable pain), but
Brown's myelogram did not show a compromise nerve root. The myelogram supported
the ALJ' s determination that Brown can work because it did not substantiate Brown's
allegation of disabling lower back pain.
Dr. Masood's treatment notes. Dr. Masood is an oncologist. Dr. Foscue referred
Brown to Dr. Masood when blood work showed a very low platelet count. Dr. Foscue
suspected Brown had thrombocytopenia, a "condition marked by an abnormal decrease
in the number of blood platelets." J.E. Schmidt, M.D., 5 Atty's Dictionary of Med. T-83.
After additional lab work, Dr. Masood determined that Brown had "only
pseudothrombocytopenia." SSA record at p. 355. Pseudothrombocytopenia equates to a
false decrease in platelets and has no clinical significance. See Dino Veneri, Massimo
Franchini, Federica Randon, Ilaria Nichele, Giovanni Pizzolo & Achille Ambrosetti,
Thrombocytopenias: a clinical point of view, 7 Blood Transfusion 75, 75 (2009). Thus, Dr.
Masood' s treatment notes supported the ALJ' s decision because pseudothrombocytopenia
did not prevent Brown from working.
Dr. Takach's physical RFC assessment. Dr. Takach is a consulting physician who
reviewed Brown's medical records. Dr. Takach opined that Brown retained the ability to
perform light work. SSA record at p. 335. Dr. Takach's opinion supported the ALJ' s
decision because the ALJ determined that Brown could perform light work.
Dr. Malik's treatment notes. Dr. Malik is a staff psychiatrist for the Southeast
Dr. Malik first saw Brown on April 13,
Arkansas Behavioral Healthcare System.
2009- nine years after Brown's alleged on-set date. During that visit, Brown reported that
he was unemployed and trying to get on disability. Id. at p. 387. Brown reported a history
of alcohol abuse, illegal drug use, and growing marijuana, but no mental health treatment.
Id. Dr. Malik found Brown's perception was "within normal limits." Id. at p. 389. Dr.
Malik also found that Brown's memory, concentration, impulse control, insight, and
judgment were grossly intact. Id. at p. 390. Dr. Malik diagnosed Brown with panic
disorder with agoraphobia, polysubstance dependence in early remission (marijuana,
methamphetamine, and cocaine), and alcohol abuse. Id. One month later, Dr. Malik
reported the same findings-grossly intact memory, concentration, impulse control,
insight, and judgment. Id. at p. 384. Dr. Malik's treatment notes supported the ALJ's
decision because Dr. Malik documented no symptoms preventing Brown from working.
Vocational expert testimony. The vocational expert at Brown's hearing testified that
a person with Brown's RFC could work as an assembler of small products, a sewing
machine operator, or a bottling line attendant. Id. at. p. 58. The vocational expert testified
that these jobs existed in significant numbers in the national economy; respectively, 2
million nationwide and 54,000 in Arkansas; 370,000 nationwide and 5,100 in Arkansas; and,
14,000 nationwide and 200 in Arkansas. Id. at p. 60. This testimony supported the ALJ's
decision because it indicated Brown could do work that existed in significant numbers in
the national economy.
The foregoing evidence constituted more than a mere scintilla of evidence. A
reasonable mind would accept this evidence as adequate to support the conclusion that
Brown is not disabled. Thus, the foregoing evidence constituted substantial evidence.
The Commissioner's decision comports with applicable legal standards. Despite
substantial evidence, Brown argued that the ALJ erred in weighing Dr. Malik's opinion that
he could not work on a sustained basis. Docket entry# 10, pp. 17-23. Dr. Malik set forth
his opinion in a mental impairment questionnaire. SSA record at p. 398. Therein, Dr. Malik
stated that individual therapy and medication management had resulted in minimal
progress in reducing Brown's anxiety. Id. at p. 400. Dr. Malik opined that mental
impairment would cause Brown to miss work more than three times per month. Id. at p.
401. This opinion is significant because the vocational expert testified that a person cannot
keep a job if he misses work more than two times per month. Id. at p. 61. The ALJ gave Dr.
Malik's opinion little weight in determining Brown's RFC. Id. at p. 22. Because the ALJ
gave Dr. Malik's opinion less than controlling weight, Brown argued that substantial
evidence did not support the Commissioner's conclusion that he was not disabled. Brown
also contended the Commissioner's decision did not comport with required legal
The Commissioner's regulations call for "more weight" for an opinion from a
treating physician than a non-treating physician because those" sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of [the
claimant's] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports
of individual examinations, such as consultative examinations or brief hospitalizations."
20 C.F.R. § 404.1527 (DIB); 20 C.F.R. § 416.927(d)(2) (SSI). The regulations direct the ALJ
to give a treating-source opinion controlling weight so long as the opinion is
"well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §
404.1527 (DIB); 20 C.F.R. § 416.927(d)(2) (SSI). If the ALJ does not give a treating source
opinion controlling weight, the ALJ must provide good reasons for not doing so. See 20
C.F.R. § 404.1527 (DIB); 20 C.F.R. § 416.927(d)(2) (SSI).
The ALJ in this case provided good reasons. As the primary reason, the ALJ
observed that Dr. Malik's opinion was "inconsistent with his own findings and progress
notes." SSA record at p. 22. The ALJ explained as shown below:
On May 19, 2009, Dr. Malik noted the claimant reported feeling fine and
using Xanax that was prescribed by his primary care physician, Dr. Foscue.
Dr. Malik did not prescribe any additional treatment for the claimant. Dr.
Malik said the claimant's polysubstance abuse is in remission but it does not
mention the claimant is still drinking.
Id. at p. 22. The record supported the ALJ's reasoning. Dr. Malik prepared the mental
impairment questionnaire on October 19, 2009-the day before Brown's hearing. Dr.
Malik's responses were based on examinations on April13, 2009 and May 14,2009. Id. at
p. 398. Dr. Malik's treatment notes for those days recorded the same findings: perception
within normal limits; and grossly intact memory, concentration, impulse control, insight,
and judgment. Id. at pp. 384 & 390. Dr. Malik recorded no observations indicating that
Brown could not work on a sustained basis.
Because there are no treatment notes between Dr. Malik's last examination-May
19, 2009-and the mental impairment questionnaire-October 19, 2001-the treatment
notes are more probative of Brown's condition than the opinions in the questionnaire
because the treatment notes were made contemporaneously with mental health
Dr. Malik indicated in the questionnaire that Brown had frequent
deficiencies in concentration, persistence or pace resulting in failure to complete tasks in
a timely manner, but Dr. Malik's examination findings contradicted the opinion. Dr. Malik
also indicated in the questionnaire that Brown had continual episodes of decompensation,
but the record contained no evidence of psychiatric emergency, decompensation, or
hospitalization. Instead, the record indicated that Brown lived independently since his
alleged on-set date.
In contrast, Dr. Foscue-who treated Brown since 2001-consistently reported no
mental or psychological abnormalities. See id. at p. 273 (July 6, 2001); p. 278 (Aug. 7, 2001);
pp. 287-88 (Dec. 13, 2001); pp. 291-92 (Jan. 8, 2002); p. 294. (Jan. 22, 2002); pp. 300-01 (July
18, 2002); p. 304 (July 14, 2008); p. 349 (Oct. 1, 2008); p. 372 (Feb. 23, 2009); & p. 366 (May
4, 2009). Although Dr. Foscue is not a mental health profession, he treated Brown for
anxiety since 2001, and thus provided a longitudinal perspective of Brown's mental health.
As an additional reason for giving Dr. Malik's opinion little weight, the ALJ made
the following comments:
Moreover, the possibility always exists that a psychiatrist may
express an opinion in an effort to assist a patient with whom he
sympathizes for one reason or another. Another reality which
should be mentioned is that patients can be quite insistent and
demanding in seeking supportive notes or reports from their
psychiatrists, who might provide such a note in order to satisfy
their patient's [sic] request and avoid unnecessary
doctor/patient tension. While it is difficult to confirm the
presence of such motives, it is a possibility that should be noted
pertaining to Dr. Malik's statements.
Id. at p. 22. Although Brown suggested that the ALJ played "Solomon" in considering Dr.
Malik's opinion, docket entry# 10, p. 23, the ALJ' s opinion reflects a careful comparison of
the opinions expressed in the mental impairment questionnaire with Dr. Malik's treatment
notes. The comparison is reflected in the ALJ's RFC assessment. For example, the ALJ's
opinion recognized that panic disorder can interfere with a person's work performance and
relationships with coworkers because people who experience frequent panic attacks may
fear embarrassment and humiliation in the midst of coworkers. See Am. Psychiatric Ass' n,
Diagnostic & Statistical Manual of Mental Disorders 439-42 (4th ed, text rev. 2000)
(discussing differences in social phobias and panic disorder with agoraphobia). The ALJ
responded by restricting Brown to work without contact with the general public and little
if any contact with other workers. SSA record at p. 21. By doing so, the ALJ gave
significant weight to Dr. Malik's clinical findings. To the extent Brown complained about
the ALJ' s failure to cite applicable regulations in the unfavorable decision, that omission
is not fatal to this case because the decision reflects the consideration of regulatory factors.
See 20 C.F.R. § 404.1527 (DIB); 20 C.F.R. § 416.927(d)(2) (SSI) (listing factors used in
considering medical opinions: examining relationship, treatment relationship, length of
treatment relationship and frequency of examination, nature and extent of treatment
relationship, supportability, consistency and specialization). Notwithstanding the ALJ' s
other reasons for rejecting the opinion set forth in the mental impairment questionnaire,
the inconsistency of the opinion with treatment notes sufficiently supports the ALJ' s
consideration of the opinion. The ALJ did not err in considering Dr. Malik's opinion.
Having determined substantial evidence supports the Commissioner's denial of
Brown's applications for disability benefits, and the Commissioner made no legal error, the
court DENIES Brown's request for relief and AFFIRMS the Commissioner's decision.
IT IS SO ORDERED this ll_th day of September, 2012.
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE
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