FELL v. COLVIN
Filing
17
MEMORANDUM ORDER. The decision of the Commissioner is AFFIRMED and plaintiffs application for Supplemental Security Income is DENIED. The clerk is directed to close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on 9/3/2014. (sdw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
DEBORAH ANN FELL,
Plaintiff,
v.
Case No. 3:13cv458/CJK
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
__________________________________/
MEMORANDUM ORDER
This case is before the court pursuant to 42 U.S.C. § 405(g) for review of a
final determination of the Commissioner of Social Security (“Commissioner”)
denying Deborah Ann Fell’s application for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 1381-1383f. The
parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §
636(c) and FEDERAL RULE OF CIVIL PROCEDURE 73 for all proceedings in this case,
including entry of final judgment. Upon review of the record before this court, I
conclude that the findings of fact and determinations of the Commissioner are
supported by substantial evidence. The decision of the Commissioner, therefore, will
be affirmed.
ISSUES ON REVIEW
Plaintiff, who will be referred to as claimant, plaintiff, or by name, raises a
single issue on appeal – whether the Appeals Council erred in failing to remand this
matter to the Administrative Law Judge (“ALJ”) on the basis of “new and material”
Case No. 3:13cv458/CJK
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evidence.
PROCEDURAL HISTORY
Claimant filed an application for SSI on August 20, 2010, alleging disability
beginning on September 17, 2009. T. 21, 139.1 The claim initially was denied, and
the denial was upheld on reconsideration. T. 21. Claimant filed a written request for
hearing on December 7, 2010. T. 21. Claimant’s request was granted, and she
appeared before an ALJ for a video hearing on April 9, 2012. T. 21. On July 9, 2012,
the ALJ issued a decision denying claimant’s application for benefits. T. 21-32.
Claimant requested further review from the Appeals Council, which denied her
request. T. 1-6. As a result, the ALJ’s decision became the final determination of the
Commissioner.
FINDINGS OF THE APPEALS COUNCIL
In denying claimant’s request for further review, the Appeals Council
considered the additional evidence claimant submitted and found no reason under its
rules to review the ALJ’s decision. T. 1.
ANALYSIS
If a claimant submits new noncumulative and material evidence to the Appeals
Council after the ALJ’s decision, the Appeals Council must consider the evidence if
it relates to the time period on or before the date of the ALJ’s hearing decision. 20
C.F.R. § 404.970(b). “Material” evidence is evidence that is “relevant and probative
so that there is a reasonable possibility that it would change the administrative result.”
1
The administrative record, as filed by the Commissioner, consists of eight volumes (docs.
9-1 through 9-8) and has 445 consecutively numbered pages. References to the record will be by
“T.,” for transcript, followed by the page number.
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Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987) (quotation omitted). When
evidence is submitted for the first time to the Appeals Council, the new evidence
becomes part of the administrative record. Keeton v. Dep't of Health and Human
Servs., 21 F.3d 1064, 1067 (11th Cir. 1994). The Appeals Council considers the
entire record, including the new, material, and chronologically relevant evidence, and
reviews the ALJ’s decision if the ALJ’s “action, findings, or conclusion is contrary
to the weight of the evidence currently of record.” 20 C.F.R. § 404.970(b). The role
of this court is to “review whether the new evidence renders the denial of benefits
erroneous.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir.
2007).
Here, the Appeals Council considered the new evidence plaintiff submitted and
found that it provided no basis for changing the ALJ’s decision. The issue, then, is
whether the Appeals Council properly declined to review the ALJ’s decision in light
of the newly submitted evidence. In making this determination, the court must
consider the entire record, including the evidence submitted to the Appeals Council,
to determine whether the denial of benefits was erroneous or whether the
Commissioner’s final decision is supported by substantial evidence. Ingram, 496
F.3d at 1262, 1266–67. Substantial evidence is “‘such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197 (1938)). With reference to other standards of review, the Eleventh Circuit
has said that “‘[s]ubstantial evidence is more than a scintilla . . . .’” Somogy v.
Comm’r of Soc. Sec., 366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d
at1439). Although the Commissioner’s decision need not be supported by a
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preponderance of the evidence, therefore, “it cannot stand with a ‘mere scintilla’ of
support.” See Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Even if the
evidence preponderates against the Commissioner’s decision, the decision must be
affirmed if supported by substantial evidence. See Sewell v. Bowen, 792 F.2d 1065,
1067 (11th Cir. 1986).
When reviewing a Social Security disability case, the court “‘may not decide
the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner] . . . .’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). A
reviewing court also may not look “only to those parts of the record which support
the [Commissioner,]” but instead “must view the entire record and take account of
evidence in the record which detracts from the evidence relied on by the
[Commissioner].” See Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).
Review is deferential to a point, but the reviewing court conducts what has been
referred to as “an independent review of the record.” See Flynn v. Heckler, 768 F.2d.
1273 (11th Cir. 1985); see also Getty ex rel. Shea v. Astrue, No.
2:10–cv–725–FtM–29SPC, 2011 WL 4836220 (M.D. Fla. Oct. 12, 2011); Salisbury
v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011 WL 861785 (M.D. Fla. Feb. 28, 2011).2
Upon review of the record in this case, it is clear that the Appeals Council did
not err in refusing to remand the matter to the ALJ in light of the newly submitted
evidence. Such evidence consists of a Medical Opinion Re: Ability to Do Work2
The Eleventh Circuit not only speaks of an independent review of the administrative record,
but it also reminds us that it conducts a de novo review of the district court’s decision on whether
substantial evidence supports the ALJ’s decision. See Ingram v. Comm'r of Soc. Sec. Admin., 496
F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
Case No. 3:13cv458/CJK
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Related Activities (Physical) (“Opinion”), completed on August 6, 2012, by
plaintiff’s pain management doctor, David E. Fairleigh., M.D. T. 443-44. In the
Opinion, which is a pre-printed, check-off form, Dr. Fairleigh indicated that plaintiff
could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten
pounds, stand and walk approximately three hours total in an eight-hour workday, sit
for approximately four hours in an eight-hour workday, and sit or stand for thirty
minutes before needing to change positions. T. 443. Dr. Fairleigh checked that
plaintiff must walk around for five minutes every forty-five minutes and must be able
to shift at will from sitting to standing/walking.3 T. 443. Dr. Fairleigh further
indicated that plaintiff could occasionally twist, stoop, and climb stairs but never
crouch or climb ladders and had limitations in reaching and pushing/pulling. T. 444.
When asked, on average, how often he anticipated that plaintiff’s impairments or
treatment would cause her to be absent from work, Dr. Fairleigh responded that it
“depends on restrictions but if no restrictions and full duty heavy work,” more than
four days per month. T. 444.
Dr. Farleigh’s opinion was rendered one month after the ALJ’s decision – and
five months after Dr. Farleigh’s last documented visit with plaintiff – and contains no
indication that it applied retroactively. As a result, it is not even clear that the opinion
relates to the time period on or before the date of the ALJ’s decision. Even assuming
Dr. Fairleigh’s opinion relates to the pertinent time period, it is entitled to little
weight. Absent good cause, the opinion of a claimant’s treating physician must be
accorded considerable or substantial weight by the Commissioner. Phillips v.
3
Notably, in contrast to plaintiff’s testimony, Dr. Fairleigh indicated that plaintiff would not
need to lie down at unpredictable intervals during an eight-hour working shift. T. 443.
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Barnhart, 357 F.3d 1232, 1240-1241 (11th Cir. 2004); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Broughton v. Heckler, 776 F.2d 960, 960-961 (11th Cir.
1985); Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). “Good cause” exists
when: (1) the treating physician’s opinion was not bolstered by the evidence; (2) the
evidence supported a contrary finding; or (3) the treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records. Phillips, 357 F.3d
at 1241; see also Lewis, 125 F.3d at 1440 (citing cases).
If a treating physician’s opinion on the nature and severity of a claimant’s
impairments is well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with other substantial evidence in the
record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(d)(2). Where
a treating physician merely makes conclusory statements, however, the ALJ may
afford them such weight as is supported by clinical or laboratory findings and other
consistent evidence of a claimant’s impairments. See Wheeler v. Heckler, 784 F.2d
1073, 1075 (11th Cir. 1986); see also Schnor v. Bowen, 816 F.2d 578, 582 (11th Cir.
1987). When a treating physician’s opinion does not warrant controlling weight, the
ALJ must nevertheless weigh the medical opinion based on (1) the length of the
treatment relationship and the frequency of examination; (2) the nature and extent of
the treatment relationship; (3) medical evidence supporting the opinion; (4)
consistency with the record as a whole; (5) specialization in the medical impairments
at issue; and (6) other factors which tend to support or contradict the opinion. 20
C.F.R. 404.1527(d). A brief and conclusory statement that is not supported by
medical findings, even if made by a treating physician, is not persuasive evidence of
disability. Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987); Warncke v. Harris,
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619 F.2d 412, 417 (5th Cir. 1980).
The law concerning conclusory statements is particularly applied where a
doctor, even one who has treated the claimant, expresses opinions on a preprinted or
“check-off” form. Such opinion evidence will not bind the Commissioner. Indeed,
courts have found that such preprinted forms do not provide persuasive evidence of
the validity of the opinions expressed therein. See Hammersley v. Astrue, No. 5:08cv-245-Oc-10GRJ, 2009 WL 3053707, at *6 (M.D. Fla. Sept. 18, 2009) (“Check-off
forms . . . have limited probative value because they are conclusory and provide little
narrative or insight into the reasons behind the conclusions.” (citing Spencer ex rel.
Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)); Mason v. Shalala, 994
F.2d 1058, 1065 (3d Cir. 1993))). Although such forms are admissible, “they are
entitled to little weight and do not constitute ‘substantial evidence’ on the record as
a whole.” O’Leary v. Schweiker, 710 F. 2d 1334, 1341 (8th Cir. 1983).
Because Dr. Fairleigh’s opinion consists of conclusory statements expressed
on a pre-printed check-off form, it is entitled to little weight. Dr. Fairleigh’s opinion
also finds no support in his own treatment notes or the record as a whole. Prior to
August 12, Dr. Fairleigh never imposed any restrictions on plaintiff’s ability to sit,
stand, or walk despite the fact that he had been treating her for two years. Instead, Dr.
Fairleigh noted on a number of occasions, including in January, March, September,
and December 2011, that plaintiff was being treated conservatively, doing well, and
responding well to her medication. T. 381, 386-87, 407. Notably, the ALJ made no
mention of Dr. Fairleigh in her decision and plaintiff’s counsel alleged no error in that
regard, indicating that neither the ALJ nor plaintiff’s counsel considered Dr.
Fairleigh’s treatment of plaintiff particularly significant for purposes of this disability
Case No. 3:13cv458/CJK
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claim.
Moreover, Dr. Edmund Molis, a state agency medical consultant, opined on
November 4, 2010, that plaintiff could perform a modified range of light work. T.
373-80. Specifically, Dr. Molis found that plaintiff could occasionally lift and/or
carry twenty pounds, frequently lift and/or carry ten pounds, and stand and/or walk
and sit about six hours in an eight-hour workday. T. 374. Dr. Molis also found that
plaintiff could occasionally climb ramps or stairs; never climb ladders, ropes, or
scaffolds; frequently balance; and occasionally stoop, kneel, crouch, and crawl. T.
375. Subsequently, on May 2, 2012, Dr. C.W. Koulisis, an orthopedic surgeon,
opined that claimant could continuously lift and carry up to ten pounds; frequently
lift and carry eleven to twenty pounds; and sit, stand, and walk for a total of eight
hours each in an eight-hour workday. T. 435-36. Like Dr. Molis, Dr. Koulisis further
found that claimant could occasionally climb stairs and ramps; never climb ladders
or scaffolds; continuously balance; and occasionally stoop, kneel, crouch, and crawl.
T. 438. The ALJ assigned great weight to the opinions of both Dr. Molis and Dr.
Koulisis, while finding plaintiff’s allegations not fully credible. T. 27. Based on
those facts, and all of the evidence of record in this case, the court finds that Dr.
Fairleigh’s August 6, 2012, Opinion does not undermine the ALJ’s decision and that
while there is evidence that plaintiff experienced significant pain as a result of
chronic neck and back problems, there is no competent evidence that the pain
rendered her disabled. As a result, the Appeals Council did not err in refusing to
remand this matter to the ALJ for consideration of the “new and material” evidence.
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ACCORDINGLY, it is ORDERED:
1. The decision of the Commissioner is AFFIRMED and plaintiff’s application
for Supplemental Security Income is DENIED.
2. The clerk is directed to close the file.
At Pensacola, Florida, this 3rd day of September, 2014.
/s/
Charles J. Kahn, Jr.
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
Case No. 3:13cv458/CJK
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